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Leading cases on American constitutionai
3 1924 019 913 064
Cornell University
Library
The original of this book is in
the Cornell University Library.
There are no known copyright restrictions in
the United States on the use of the text.
http://www.archive.org/details/cu31 92401 991 3064
Leading Cases
on
American
Constitutional Law
Bv LAWRENCE B. EVANS, Ph. D.
Of the Massachusetts Bar
We must never forget that it is a con-
stitution we are expounding.
— Chief Justice Marshall
Constitutional law like other mortal
contrivances has to take some chances.
— Justice Holmes
CHICAGO
CALLAGHAN AND COMPANY
1916
^^^ff\
COPTEIGHT, 1916
BY
Callaghan & Company
TO MY FRIEND
SAMUEL W. McCALL
STATESMAN
DEFENDER OF CONSTITUTIONAL LIBERTY
PREFACE
The intended scope of this book would have been indicated
more accurately if the title were ' ' Some Leading Cases on Some
Leading Topics in American Constitutional Law. ' ' Accuracy of
description however had to be sacrificed to brevity, which indeed
is the dominant note of every part of the book. This makes it
necessary to explain that the present collection is an attempt to
bring together within the compass of about four hundred pages
as many as possible of the decisions of the Supreme Court of the
United States interpreting the Federal Constitution. Because of
limitations of space no attempt has been made to cover the whole
subject. Important topics, such as eminent domain, ex post facto
legislation, bankruptcy, and the war power, have been omitted
altogether in the belief that the fuller treatment of other topics
which such omissions made possible would give the collection
added value. Sixty-four cases are here included. The basic de-
cisions in which the important doctrines of constitutional law
are first elaborated, such as McCulloch v. Maryland, Gibbons v.
Ogden, and Cooley v. The "Wardens of the Port, are reprinted
with considerable fullness, while the later decisions of a less
fundamental character are much abbreviated. In every instance
however the facts out of which the controversy arose are given,
as well as a sufficient portion of the opinion to show why the
court decided as it did. The texts of all the decisions made since
the beginning of the December Term, 1855 (18 Howard), are
taken from the official reports. The texts of decisions made prior
to that time are taken from Curtis' Decisions of the Supreme
Court of the United States. Except for omissions or para-
phrases which are indicated in the usual way, the texts followed
have been reproduced veriatim et literatim.
I have tried to meet the needs of two classes of students. First,
I have had in mind students in law schools where the amount of
time given to the subject does not warrant the use of the larger
casebooks. It is for them especially that the numerous references
to other cases have been included in the notes. Second, I have
had in mind college and university classes in government and
vi PEEFACB.
constitutional history, and for their assistance I have inserted
references to many monographs and treatises, nearly a hundred
in all, bearing upon the historical as well as the legal aspects of
the topics treated.
In the apportionmeM of space to the various topics there might
vrell be difference of opinion. In general those branches of the
subject in which new questions are coming up have been empha-
sized rather than those in which the law is well settled. The last
four chapters, comprising nearly half the book, are devoted to
the commerce clause and the Fourteenth Amendment, which finds
its justification in the fact that far more than half of all the
constitutional questions which now go to the Supreme Court for
adjudication arise out of those two parts of the Constitution.
There might also be difference of opinion as to the classification
of the cases included in the collection. Many of them belong to
one chapter almost as much as to another. In settling this vexed
question, I have not been so anxious to attain a logical classifi-
cation as I have been to place each case where it could be used
most effectively for purposes of instruction. For instance, such a
case as Leisy v. Hardin might be looked for in the chapter on
commerce, but it seemed to me that the study of that case could
best be approached from the standpoint of the police power. And
so as to many others.
In adding another to the multitude of books dealing with con-
stitutional law, I would adopt as my own the quaint language of
old Bellewe, who says in the preface to his Les Ans du Roy
Richard le Second, "Beseeching you that where you shall finde
any faultes, which either by my insufficiency, the intrieatene?
of the worke, or the Printers' recklesnes are committed, either
friendly to pardon, or by some means to admonish me thereof. ' '
Lawrence B. Evans.
701 Barristers Hall, Boston.
November 1, 1915.
TABLE OF CONTENTS
Page
Preface v
Table of Contents vii
The Constitution of the United States xi
CHAPTER I.
the american system of government.
§ 1. The Sufeeme Law of the Land.
Marbury v. Madison (1803), 1 Cranch, 137 1
§ 2. Implied and Inherent Powers op the Federal Governiisnt.
McCulloch V. Maryland (1819), 4 Wheaton, 316 12
In re Neagle (1890), 135 U. S. 1 28
Fong Yue Ting v. United States (1893), 149 U. S. 698 35
j 3. The Relations op the Federal Government and the States.
Crandall v. Nevada (1867), 6 Wallace, 35 42
Texas v. White (1868), 7 Wallace, 700 46
Tarble 's Case (1871), 13 Wallace, 397 53
j 4. The Government op Tbrbitories and Dependencies.
American Insurance Co. v. Canter (1828), 1 Peters, 511 59
Callan v. Wilson (1&88), 127 IT. ^. 540 62
Downes v. BidweE (1901), 182 U. S. 244 65
CHAPTER 11.
CITIZENSHIP IN THE UNITED STATES.
i 1. Who Abe Citizens.
Scott V. Sandford (1857), 19 Howard, 393 ?0
United States v. Wong Kim Ark (1898), 169 U. S. 649 94
, 2. Privileges and Immunities op Citizens op the United States.
Slaughter House Cases (1873), 16 Wallace, 36 104
Twining v. New Jersey (1908), 211 U. S. 78 114
Guinn and Beal v. United States (1915), 238 U. S. 347 119
vii
viii CONTENTS
Page
CHAPTEE III.
/
THE JURISDICTION OF THE FEDERAL COURTS.
Chisholm v. Georgia (1793), 2 Dallas, 419 126
Cohens v. Virginia (1821), 6 Wheaton, 264 132
Cherokee Nation v. Georgia (1831), 5 Peters, 1 142
Luther v. Borden (1848), 7 Howard, 1 148
South Dakota v. North CaroUna (1904), 192 V. S. 286 153
CHAPTEE iV.
THE IMPAIRMENT OF CONTRACTS.
§ 1. What is a " Contract. ' '
Dartmouth College v. Woodward (1819), 4 Wheaton, 518 160
§ 2. The Construction of Grants trom a State.
Charles Eiver Bridge Co. v. Warren Bridge Co. (1837), 11
Peters, 420 171
§ 3. What is an Impairment or the Obligation op a Contract.
Sturges V. Crowninshield (1819), 4 Wheaton, 122 178
CHAPTEE V.
MONET.
§ 1. Bills op Credit.
Craig V. Missouri (1830), 4 Peters, 410 , 185
Briscoe v. Bank of Kentucky (1837), 11 Peters, 257. ..,.,.. .190
§ 2. Legal Tender Notes. /
Juilliard v. Greenman (1884), 110 U. S. 421 195
CHAPTEE VI.
taxation.
§ 1. What is a Tax.
Loan Association v. Topeka (1874), 20 Wallace, 655 205
§ 2. The Taxation op Agencies op Government.
McCulloch V. Maryland (1819), 4 Wheaton, 316 212
Veazie Bank v. Fenno (1869), 8 Wallace, 533 220
The Collector v. Day (1870), 11 Wallace, 113 224
South Carolina v. United States (1905), 199 U. S. 437 229
CONTENTS ix
Page
§ 3. DiEECT Taxes.
Hylton V. United States (1796), 3 Dallas, 171 234
Pollock V. Farmers' Loan and Trust Co. (1895), 158 U. S. 601. .238
CHAPTER VII.
the regulation op commerce.
§ 1. What is Commerck.
Gibbons v. Ogden (1824), 9 Wheaton, 1 245
Paul V. Virginia (1868), 8 Wallace, 168 251
Penscola Telegraph Co. v. Western Union Telegraph Co. (1877),
96 U. S. 1.... 254
United States v. E. C. Knight Co. (1895), 156 U. S. 1 258
§ 2. Federal Jurisdiction over Commerce.
Gibbons v. Ogden (1824), 9 Wheaton, 1 263
Brown v. Maryland (1827), 12 Wheaton, 419 280
Cooley V. The Wardens of the Port (1851), 12 Howard, 299. .293
In re Debs (1895), 158 U. S. 564 300
Houston, East and West Texas By. Co. v. United States (The
Shreveport Case) (1914), 234 U. S. 342 306
§ 3. What is a Eegdlation op Commerce.
Addystone Pipe and Steel Co. v. United States (1899),
175 U. S. 211 310
Lottery Case (Champion v. Ames) (1903), 188 U. S. 321 313
CHAPTER VIII.
due process op law.
§ 1. General Conception op Dub Process.
Twining v. New Jersey (1908), 211 U. S. 78 319
International Harvester Co. v. Kentucky (1914), 234 U. S. 216.329
§ 2. Due Process in Procedure.
Hurtado v. California (1884), 110 U. S. 516 331
§ 3. Due Process as to Liberty and Property.
Wadley Southern Railway Co. v. Georgia (1915), 235 U. S.
651 338
Coppage V. Kansas (1915), 236 U. S. 1 343
CHAPTER IX.
the equal protection of the laws.
§ 1. Race Discrimination.
Strauder v. West Virginia (1879), 100 U. S. 303 351
Tick Wo V. Hopkins (1886), 118 U. S. 356 356
X CONTENTS
Page
§ 2. Legislation toe Classes.
Barbier v. Connolly (1885), 113 U. S. 27 360
Missouri, Kansas & Texas Eailway Co. v. May (1904), 194
U. S. 267 363
Central Lumber Co. v. South Dakota (1912), 226 U. S. 157 364
Patsone v. Pennsylvania (1914), 232 U. S. 138 367
CHAPTER X.
the police power.
§ 1. The Protection of Health.
Railroad Company v. Husen (1877), 95 V. S. 465 370
Holden v. Hardy (1898), 169 U. S. 366 374
§ 2. The Protection of Morals.
Mugler V. Kansas (1887), 123 U. S. 623 377
Leisy v. Hardin (1890), 135 U. S. 100 382
§ 3. The Preservation of Sapett and Order.
Escanaba Company v. Chicago (1882), 107 U. S. 678 389
City of Chicago v. Sturges (1911), 222 U. S. 313 395
Adams Express Company v. City of New York (1914), 232
IT. S. 14 398
Atlantic Coast Line Eailroad Co. v. Georgia (1914), 234 U. S.
280 403
§ 4. The Promotion of the General Welfare.
Plumley v. Massachusetts (1894), 155 V. S. 461 407
Sligh V. Kirkwood (1915), 237 U. S. 52 410
§ 5. The Regulation of Public Callings.
Munn v. Illinois (1876), 94 U. S. 113 413
Northern Pacific Railroad Co. v. North Dakota (1915), 236
U. S. 585 421
Table of Cases 429
Index 443
The Constitution of the
United States/
1 We the People of the United States, in Order to form a more
perfect Union, establish Justice, insure domestic Tranquility,
provide for the common defence, promote the general Wel-
fare, 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.
2 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 Representatives.
^ Section. 2. The House of Representatives shall be composed
of Members chosen every second Year by the People of the sev-
eral States, and the Electors in each State shall have the Qualifi-
cations requisite for Electors of the most numerous Branch of
the State Legislature.
* No Person shall be a Representative who shall not have at-
tained 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 Inhabitant of that State in which he shall be chosen.
^ Representatives and direct Taxes shall be apportioned among
the several States which may be included within this Union, ac-
cording to their respective Numbers, [which shall be determined
1 The text of the Constitution here given is that printed in Farrand, The
Becords of the Federal Convention of 1787, II, 651, which is intended to be
an exact reprint of the original. The text of the first fifteen Amendments is
taken from American History Leaflets, No. 8, edited by A. B. Hart and E.
Channing, and based upon copies made from the originals by the editors.
The text of the Sixteenth and Seventeenth Amendments is taken from the
proclamations of the Secretary of State declaring them to have been duly
adopted. For convenience of reference the present editor has numbered
the paragraphs continuously.
xi
xii CASES ON CONSTITUTIONAL LAW.
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.] i The actual Enu-
meration shall be made within three Years after the first Meet-
ing 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 enumeration 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, Pennsyl-
vania eight, Delaware one, Maryland six, Virginia ten, North
Carolina five. South Carolina five, and Georgia three.
" When varcancies happen in the Representation from any
State, the Executive Authority thereof shall issue Writs of Elec-
tion to fill such Vacancies.
'' The House of Representatives shall chuse their Speaker and
other OfBcers ; and shall have the sole Power of Impeachment.
^ Section. 3. The Senate of the United States shall be com-
posed of two Senators from each State, [chosen by the Legisla-
ture thereof,] 2 for six Years; and each Senator shall have one
Vote.
^ Immediately after they shall be assembled in Consequence 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 every second Year; [and if Vacancies happen by Resig-
nation, or otherwise, during the Recess 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.]*
1" 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 inhabitant
of that State for which he shall be chosen.
11 The Vice President of the United States shall be President
1 Superseded by the Fourteenth Amendment.
2 Superseded by the Seventeenth Amendment.
3 Modified by the Seventeenth Amendment.
CONSTITUTION OP THE UNITED STATES. xiii
of the Senate, but shall have no Vote, unless they be equally-
divided.
12 The Senate shall ehuse their other Officers, and also a Presi-
dent pro tempore, in the Absence of the Vice President, or when
he shall exercise the Office Of President of the United States.
13 The 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 Chief Justice shall preside : And no Person shall be convicted
without the Concurrence of two thirds of the Members present.
1* Judgment in Cases of Impeachment shall not extend further
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 Punishment, accord-
ing to Law.
15 Section. 4. The Times, Places and Manner of holding Elec-
tions for Senators and Representatives, shall be prescribed in
each 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 chusing Senators.
IS The Congress shall assemble at least once in every Year, aiid
such Meeting shall be on the first Monday in December, unless
they shall by Law appoint a different Day.
1^ Section. 5. Each House shall be the Judge of the Elections,
Returns 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.
1* Each House may determine the Rules of its Proceedings,
punish its Members for disorderly Behaviour, and, with the Con-
currence of two thirds, expel a Member.
1** Each House shall keep a Journal of its Proceedings, and
from time to time publish the same, excepting such Parts as iffiay
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.
20 Neither House, during the Session of Congress, shall, with-
out 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.
21 Section. 6. The Senators and Representatives shall receive
xiv CASES ON CONSTITUTIONAL LAW.
a Compensation for their Services, to be ascertained by Law,
and paid out of the Treasury of the United States. They shall
in all Cases, except Treason, Felony and Breach of the Peace,
be 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.
22 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 Continu-
ance in Office.
23 Section. 7. All Bills for raising Eevenue shall originate in
the House of Representatives; but the Senate may propose or
concur with Amendments as on other Bills.
2* Every Bill which shall have passed the House of Representa-
tives and the Senate, shall, before it become a Law, be presented
to the President of the United States ; If he approve 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 Journal, 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 approved by two thirds of that House, it shall become a Law.
But in all such Cases the Votes of both Houses shall be deter-
mined by yeas 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 had signed it, unless the Congress by their Ad-
journment prevent its Return, in which Case it shall not be a
Law.
23 Every Order, Resolution, or Vote to which the Concurrence
of the Senate and House of Representatives may be necessary
(except on a question of Adjournment) shall be presented to the
President of the United States; and before the Same shall take
Effect, shall be approved by him, or being disapproved by him,
shall be repassed by two thirds of the Senate and House of Rep-
CONSTITUTION OF THE UNITED STATES. xv
resentatives, aecor3ing to the Rules and Limitations prescribed
in the Case of a Bill.
2« Section. 8. The Congress shall have Power To lay and
collect 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 uni-
form throughout the United States ;
2'^ To borrow Money on the credit of the United States ;
2* To regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes ;
29 To establish an uniform Rule of Naturalization, and uni-
form Laws on the subject of Bankruptcies throughout the United
States ;
2" To coin Money, regulate the Value thereof, and of foreign
Coin, and fix the Standa,rd of Weights apd Measures;
^1 To provide for the Punishmeu't of counterfeiting the Securi-
ties and current Coin of the United States;
32 To establish Post OfSces and post Roads ;
33 To promote the Progress of Science and useful Arts, by
securing for limited Time to Authors and Inventors the exclu-
sive Right to their respective Writings and Discoveries ;
3* To constitute Tribunals inferior to the supreme Court;
35 To define and punish Piracies and Felonies committeed on
the high Seas, and Offences against the Law of Nations ;
30 To declare War, grant Letters of Marque and Reprisal, and
make Rules concerning Captures on Land and Water;
^'' To raise and support Armies, but no Appropriation of
Money to that Use shall be for a longer Term than two Years ;
38 To provide and maintain a Navy ;
39 To make Rules for the Government and Regulation of the
land and naval Forces;
*° To provide for calling forth the Militia to execute the Laws
of the Union, suppress Insurrections and repel Invasions ;
*i To provide for organizing, arming, and disciplining, the
Militia, and for governing such Part of them as may be em-
ployed in the Service of the United States, reserving to the States
respectively, the Appointment of the Officers, and the Authority
of training the Militia according to the discipline prescribed by
Congress ;
*2 To exercise exclusive Legislation in all Cases whatsoever,
over such District (not exceeding ten Miles square) as may, by
Cession of Particular States, and the Acceptance of Congress,
become the Seat of the Government of the United States^ and to
xvi CA^ES ON CONSTITUTIONAL LAW.
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
*3 To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof.
** Section. 9. The Migration or Importation of such Persons
as any of the States now existing shall think proper to admit,
shall not be prohibited by the Congress 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.
*5 The Privilege of the Writ of Habeas Corpus shall not be sus-
pended, unless when in Cases of Rebellion or Invasion the public
Safety may require it.
*® No Bill of Attainder or ex post facto Law shall be passed.
*'' No .Capitation, or other direct. Tax shall be laid, unless in
Proportion to the Census or Enumeration herein before directed
to be taken.i
48 -^Q Tax or Duty shall be laid on Articles exported from any
State.
*8 No Preference shall be given by any Regulation of Com-
merce 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.
80 No Money shall be drawn from the Treasury, but in Con-
sequence of Appropriations made by Law ; and a regular State-
ment and Account of the Receipts and Expenditures of all pub-
lic Money shall be published from time to time.
51 No Title of Nobility shall be granted by the United States :
And no Person holding any OfSce of Profit or Trust under them,
shall, without the Consent of the Congress, accept of any pres-
ent. Emolument, Office, or Title, of any kind whatever, from any
King, Prince, or foreign State.
82 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,
1 Modified by the Sixteenth Amendment.
CONSTITUTION OF THE UNITED STATES. xvii
ex post facto Law, or Law impairing the Obligation of Contracts,
or grant any Title of Nobility.
^^ No State shall, without the Consent of the Congress, 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. 11.
55 Section. 1. The executive Power shall be vested in a Presi-
dent 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
58 Each State shall appoint, in such Manner as the Legisla-
ture thereof may direct, a Number of Electors, equal to the whole
Number of Senators and Representatives to which the State may
be entitled in the Congress: but no Senator or Representative,
or Person holding an Office of Trust or Profit under the United
States, shall be appointed an Elector.
ST [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 trans-
mit 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 Repre-
sentatives, open all the Certificates, and the Votes shall then be
counted. The Person having the greatest Number of Votes shall
be the President, if such Number be a Majority of the whole
Number of Electors appointed; and if there be more than one
who have such Majority, and have an equal Number of Votes,
then the House of Representatives shall immediately chuse by
Ballot one of them for President ; and if no Person have a Major-
ity, then from the five highest on the List the said House shall
xviii CASES ON CONSTITUTIONAL LAW.
in like Manner ehuse the President. But in chusing the Presi-
dent, the Votes shall be taken by States, the Representation from
each State having one Vote; A quorum for this Purpose shaU.
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 hav-
ing 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 ehuse from them by BaUot
the Vice President.] ^
^^ The Congress may determine the Time of chusing the Elect-
ors, and the Day on which they shall give their Votes; which
Day shall be the same throughout the United States.
^8 No Person except a natural born Citizen, or a Citizen of the
United States, at the time of the Adoption of this Constitution,
shall be eligible to the OfSce of President ; neither shall any Per-
son 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 Presi-
dent and Vice President, declaring what Officer shall then act as
President, and such Officer shall act accordingly, until the Dis-
ability be removed, or a President shall be elected.
*i The President shall, at stated Times, receive for his Serv-
ices, a Compensation, which shall neither be encreased nor dimin-
ished 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.
^2 Before he enter on the Execution of his Office, he shall take
the following Oath or Affirmation : — " I do solemnly swear (or
affirm) that I will faithfully execute the Office of President of
the United States, and will to the best of my Ability, preserve,
protect and defend the Constitution of the United States."
«3 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 States; he may require the Opinion, in writing, of the
1 Superseded by the Twelfth Amendment.
CONSTITUTION OF THE UNITED STATES. xix
principal Officer in each of the executive Departments, upon any
Subject relating to the Duties of their respective Offices, and he
shall have Power to grant Reprieves and Pardons for Offences
against the United States, except in Cases of Impeachment.
^* He shall have Power, by and with the Advice and Consent
of the Senate, to make Treaties, provided two thirds of the Sena-
tors present concur ; and he shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint Ambassadors,
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 estab-
lished by Law: but the Congress may by Law vest the Appoint-
ment of such inferior Officers, as they think proper, in the Presi-
dent alone, in the Courts of Law, or in the Heads of Depart-
ments.
8^ The President shall have Power to fill up all Vacancies that
may happen during the Eecess of the Senate, by granting Com-
missions which shall expire at the End of their next Session.
68 Section. 3. He shall from 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 ex-
pedient; he may, on extraordinary Occasions, convene both
Houses, or either of them, and in Case of Disagreement between
them, with Kespect to the Time of Adjournment, he may adjourn
them to such Time as he shall think proper; he shall receive
Ambassadors and other public Ministers ; he shall take Care that
the Laws be faithfully executed, and shall Commission all the
Officers of the United States.
ST 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 Misdemeanors.
ARTICLE. III.
88 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 dimin-
ished during their Continuance in Office.
«9 Section. 2. The judicial Power shall extend to all Cases, in
XX CASES ON CONSTITUTIONAL LAW.
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 afleqfing 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 ; 1 — between Citizens of different States, — between Citi-
zens of the same State claiming 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 Regulations as the Congress shall make.
^1 The Trial of all Crimes, except in Cases of Impeachment,
shall be by Jury ; and such Trial shall be held in the State where
the said Crimes shall have been committed; but when not com-
mitted within any State, the Trial shall be at such Place or Places
as the Congress may by Law have directed.
■^2 Section. 3. Treason against the United States, shall con-
sist only in levying War against them, or in adhering to their
Enemies, giving them Aid and Comfort. No Person shall be con-
victed of Treason unless on the Testimony of two "Witnesses to
the same overt Act, or on Confession in open Court.
■^3 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
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 pre-
scribe the Manner in which such Acts, Records and Proceedings
shall be proved, and the Effect thereof.
T5 Section. 2. The Citizens of each State shall be entitled to
all Privileges and Immunities of Citizens in the several States.
■^8 A Person charged in any State with Treason, Felony, or
1 Modified by the Eleventh Amendment.
CONSTITUTION OF THE UNITED STATES. xxi
other Crime, who shall flee from Justice, and be found in another
State, shall on Demand of the executive Authority of the State
from which he fled, be delivered up, to be removed to the State
having Jurisdiction 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 Consent of the Legislatures of the States concerned
as well as of the Congress.
''^ 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 Prejudice any Claims of
the United States, or of any particular State.
80 Section. 4. The United States shall 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 the Executive (when the Legislature can-
not be convened) against domestic Violence.
ARTICLE. V.
81 The Congress, whenever two thirds of both Houses shall
deem it necessary, shall propose Amendments to this Constitu-
tion, or, on the Application of the Legislatures of two thirds of
the several States, shall call a Convention for proposing Amend-
ments, which, in either Case, shall be valid to all Intents and
Purposes, as Part of this Constitution, when ratified by the Leg-
islatures of three fourths of the several States, or by Conventions
in three fourths thereof, as the one or the other Mode of Ratifi-
cation 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 deprived of it 's equal Suf-
frage in the Senate.
xxii CASES ON CONSTITUTIONAL LAW.
ARTICLE. VI.
*2 All Debts contracted and Engagements entered into, before
the Adoption of this Constitution, shall be as valid against the
United States under this Constitution, as under the Confedera-
tion.
S3 This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or
which shall be made, under 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.
^* The 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
Qualification to any Office or public Trust under the United
States.
ARTICLE. VII.
*^ The Ratification of the Conventions of nine States, shall be
sufficient for the Establishment of this Constitution between the
States so ratifying the Same.
88 Done 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
Independence of the United States of America the Twelfth In
Witness whereof We have hereunto subscribed our Names,
Go. WASHINGTON— Prestt?^.
and deputy from Virginia.
Attest William Jackson Secretary.
New Hampshire.. jJ°^^^^^^<i°'^
I Nicholas Gilman
Massachusetts
Connecticut ..
fNathaniel Gorham
■] Rufus King
Wm: Saml. Johnson
Roger Sherman
New York Alexander Hamilton
New Jersey
Wil : Livingston
David Brearley.
Wm. Paterson.
Jona: Dayton
CONSTITUTION OF THE UNITED STATES, xxiii
Pennsylvania
Delaware
Maryland
Virginia
North Carolina.
South Carolina.
Georgia
B Franklin
Thomas Mifflin
Robt Morris
Geo. Clymer
Thos. Fitzsimons
Jared IngersoU
James Wilson
Gouv Morris
Geo: Read
Gunning Bedford jun
John Dickinson
Richard Bassett
Jaco: Broom
James McHenry
Dan of St Thos. Jenifer
Danl. Carroll.
John Blair ^
James Madison Jr.
Wm. Blount
Richd. Dobbs Spaight.
Hu Williamson
J. Rutledge
Charles Cotesworth Pinekney
Charles Pinekney
Pierce Butler.
William Few
Abr Baldwin
Note. — On September 28, 1787, Congress directed that the Constitution,
"with the resolutions and letter accompanying the same, be transmitted to
the several Legislatures in order to be submitted to a Convention of Dele-
gates chosen in each State by the people thereof, in conformity to the
resolves of the Convention made and provided in that case." Jcmrnal of
Congress, XII, 166. When the new government went into operation, the
Constitution had been ratified by only eleven States, but ultimately it was
ratified by all of them in the following order: Delaware, December 7, 1787;
Pennsylvania, December 12, 1787; New Jersey, December 18, 1787; Georgia,
January 2, 1788; Connecticut, January 9, 1788; Massachusetts, February 6,
1788 ; Maryland, April 28, 1788 ; South Carolina, May 23, 1788 ; New Hamp-
shire, June 21, 1788; Virginia, June 26, 1788; New York, July 26, 1788;
North Carolina, November 21, 1789; Rhode Island, May 29, 1790.
xxiv CASES ON CONSTITUTIONAL LAW.
AETICLES in addition to and Amendment of the Constitu-
tion of the United States of America, proposed by Congress, and
ratified by the Legislatures of the several States, pursuant to the
fifth Article of the original Constitution.
[ARTICLE I.]
*'' Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press ; or the right of the people
peaceably to assemble, and to petition the Government for a re-
dress of grievances.
[ARTICLE II.]
88 A well regulated Militia, being necessary to the security of
a free State, the right of the people to keep and bear Arms, shall
not be infringed.
[ARTICLE III.]
8* 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.]
90 The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particu-
larly describing the place to be searched, and the persons or
things to be seized.
[ARTICLE v.]
91 No person shall be held to answer for a capital, or other-
wise 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 pub-
lic 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 de-
CONSTITUTION OF THE UNITED STATES. xxv
prived of life, liberty, or property, without due process of law ;
nor shall private property be taken for public use, without just
compensation.
[ARTICLE VI.]
^2 In all criminal prosecutions the accused 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 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 compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
[ARTICLE VII.]
^3 In suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be pre-
served, and no fact tried by a jury shaU be otherwise re-exam-
ined in any Court of the United States, than according to the
rules of the common law.
[ARTICLE VIII. ]
9* Excessive bail shall not be required, nor excessive fines im-
posed, nor cruel and unusual punishments inflicted.
[ARTICLE IX.]
85 The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the
people.
[ARTICLE X.]
96 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, or to the people.^
[ARTICLE XL]
9'^ The Judicial power of the United States shall not be con-
strued to extend to any suit in law or equity, commenced or
1 The first ten Amendments were proposed by Congress September 25,
1789, and were ratified by the necessary number of States December 15, 1791.
xxvi CASES ON CONSTITUTIONAL LAW.
prosecuted against one of the United States by Citizens of an-
other State, or by Citizens or Subjects of any Foreign State.*
[ARTICLE XII.]
•8 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 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 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 for President, shall be the President, if such number be
a majority 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 imme-
diately, 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 of the states, and a
majority of all the states shall be necessary to a choice. And if
the House of Representatives shall not choose a President when-
ever 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 con-
stitutional 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 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
1 The Eleventh Amendment was proposed by Congress March 4, 1794,
and was ratified by the necessary number of States February 7, 1795. In r
message to Congress on January 8, 1798, President Adams announced that
the Amendment might be regarded as a part of the Constitution.
CONSTITUTION OF THE UNITED STATES, xxvii
whole number shall be necessary to a choice. But no person con-
stitutionally ineligible to the office of President shall be eligible
to that of Vice-President of the United States.i
Article XIII.
*8 Section 1. Neither slavery nor involuntary servitude, ex-
cept as a punishment for crime whereof the party shall have been
duly convicted, shall exist within the United States, or any place
subject to their jurisdiction. Section 2. Congress shall have
power to enforce this article by appropriate legislation.^
Article XIV.
^°° Section 1. AU persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges
or immunities of 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 jurisdic-
tion the equal protection of the laws.
1°^ Section 2. Eepresentatives shall be apportioned among
the several States according to their respective numbers, count-
ing 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 and Judicial
officers of a State, or the members of the Legislature thereof, is
denied to any of the male 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.
102 Section 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
1 The Twelfth Amendment was proposed by Congress December 8, 1803,
and declared in force by the Secretary of State September 25, 1804.
2 The Thirteenth Amendment was proposed by Congress January 31, 1865,
and declared in force by the Secretary of State December 18, 1865.
xxviii CASES ON CONSTITUTIONAL LAW.
any State, who, having 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 rebellion against the same, or
given aid or comfort to the enemies thereof. But Congress may
by a vote of two-thirds of each House, remove such disability.
103 Section 4. The validity of the public debt of the United
States, authorized by law, including debts incurred for 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
incurred in aid of insurrection or rebellion against the United
States, or any claim for the loss or emancipation of any slave;
but all such debts, obligations and claims shall be held illegal
and void.
10* Section 5. The Congress shall the power to enforce, by
appropriate legislation, the provisions of this article.^
Article XV.
los 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. —
los Section 2. The Congress shall have power to enforce this
article by appropriate legislation.^ —
Article XVI.
107 Tj^g Congress shall have power to lay and collect taxes on
incomes, from whatever source derived, without apportionment
among the several States, and without regard to any census oi
enumeration.*
[ARTICLE XVII.]
108 The Senate of the United States shall be composed of two
Senators from each State, elected by the people thereof, for six
1 The Fourteenth Amendment was proposed by Congress June 13, 1866,
and was declared in force by the Secretary of State July 28, 1868.
2 The Fifteenth Amendment was proposed by Congress February 26, 1869
and was declared in force by the Secretary of State, March 30, 1870.
3 The Sixteenth Amendment was proposed by Congress July 12, 1909
and was declared in force by the Secretary of State February 25, 1913.
CONSTITUTION OF THE UNITED STATES, xxix
years; and each Senator shall have one vote. The electors in
each State shall have the qualifications requisite for electors of
the most numerous branch of the State legislatures.
109 l^hen vacancies happen in the representation of any State
in the Senate, the executive authority of such State shall issue
writs of election to fill such vacancies : Provided, That the legis-
lature of any State may empower the executive thereof to make
temporary appointments until the people fill the vacancies by
election as the legislature may direct.
110 This amendment shall not be so construed as to affect the
election or term of any Senator chosen before it becomes valid
as part of the Constitution.^
1 The Seventeenth Amendment was proposed by Congress May 13, 1912,
and was declared. in force by the Secretary of State May 31, 1913.
Leading Cases
on
Constitutional Law
CHAPTEE I.
THE AMEEICAN SYSTEM OF GOVERNMENT.
Section 1. The Supreme Law op the Land.
This Constitution, and the laws of the United States which shall
be made in pursuance thereof, and all treaties made or which shall
be made, under the authority of the United States, shall be the
supreme law of the land; and thei judges in every State shall be
bound thereby, anything in the constitution or laws of any State
to the contrary notwithstanding.
Constitution of the United States, Art. VI.
MARBURY V. MADISON.
Supreme Couet of the United States. 1803.
1 Cranch. 137; 2 Lawyers' Ed. 60.
[Near the end of his term of office President Adams nominated
William Marhury to the office of justice of the peace in the Dis-
trict of Columbia. The nomination was confirmed by the Senate,
the commission was signed by the President, and the great seal
of the United States was affixed by the Secretary of State. On
the expiration of Adams' term of office, Marbury applied to
James Madison, Secretary of State under Jefferson, for the de-
livery of his commission. Jefferson held that the appointment
was not complete until the commission had been delivered, and
directed Madison to withhold it. Marbury and several others
similarly circumstanced then moved the court for a rule to James
Madison to show cause why a writ of mandamus should not issue
ordering him to deliver the commission. No cause having been
shown there was a motion for a writ of mandamus.]
1
E. C. L.— 1
2 CASES ON CONSTITUTIONAL LAW.
Marshall, C. J. . . . The first object of inquiry is,
1st. Has the applicant a right to the commission he demands ?
. . . [The court finds that as Mar bury 's appointment was
complete he has a right to the commission.]
This brings us to the second inquiry, which is,
2dly. If he has a right, and that right has been violated, do
the laws of his country afford him a remedy? . . . [The
court finds that they do.]
It remains to be inquired whether,
3dly. He is entitled to the remedy for which he applies. This
depends on,
1st. The nature of the writ applied for ; and,
2dly. The power of this court.
1st. The nature of the writ. . . . This, then, is a plain
case for a mandamus, either to deliver the commission, or a copy
of it from the record j and it only remains to be inquired,
Whether it can issue from this^ court.
The act to establish the judicial courts of the United States
authorizes the supreme court "to issue writs of mandamus, in
cases warranted by the principles and usages of law, to any courts
appointed, or persons holding office, under the authority of the
United States." . . . The constitution vests the whole judi-
cial power of the United States in one supreme court, and such
inferior courts as congress shall, from time to time, ordain and
establish. ... In the distribution of this power it is declared
that "the supreme court shall have original jurisdiction in all
cases affecting ambassadors, other public ministers and consuls,
and those in which a State shall be a party. In all other cases,
the supreme court shall have appellate jurisdiction." . . .
If it had been intended to leave it in the discretion of the legis-
lature to apportion the judicial power between the supreme and
inferior courts according to the will of that body, it would cer-
tainly have been useless to have proceeded further than to have
defined the judicial power, and the tribunals in which it should
be vested. The subsequent part of the section is mere surplusage,
is entirely without meaning, if such is to be the construction.
. . . To enable this court, then, to issue a mandamus, it must
be shown to be an exercise of appellate jurisdiction, or to be
necessary to enable them to exercise appellate jurisdiction. . . .
It is the essential criterion of appellate jurisdiction, that it revises
and corrects the proceedings in a cause already instituted, and
does not create that cause, Although, therefore, a mandamus may
be directed to courts, yet to issue such a writ to an officer for the
MARBURY V. MADISON. 3
delivery of a paper, is in effect the same as to sustain an original
action for that paper, and, therefore, seems not to belong to
appellate, but to original jurisdiction. Neither is it necessary in
such a case as this, to enable the court to exercise its appellate
jurisdiction.
The authority, therefore, given to the supreme court, by the
act establishing the judicial courts of the United States, to issue
writs of mandamus to public officers, appears not to be warranted
by the constitution ; and it becomes necessary to inquire whether
a jurisdiction so conferred can be exercised.
The question whether an act repugnant to the constitution can
become the law of the land, is a question deeply interesting to
the United States ; but, happily, not of an intricacy proportioned
to its interest. It seems only necessary to recognize certain prin-
ciples supposed to have been long and well established, to
decide it.
That the people have an original right to establish, for their
future government, such principles as, in their opinion, shall most
conduce to their own happiness, is the basis on which the whole
American fabric has been erected. The exercise of this original
right is a very great exertion; nor can it nor ought it to be
frequently repeated. The principles, therefore, so established,
are deemed fundamental. And as the authority from which they
proceed is supreme, and can seldom act, they are designed to be
permanent.
This original and supreme will organizes the government, and
assigns to different departments their respective powers. It may
either stop here, or establish certain limits not to be transcended
by those departments.
The government of the United States is of the latter descrip-
tion. The powers of the legislature are defined and limited ; and
that those limits may not be mistaken, or forgotten, the consti-
tution is written. To what purpose are powers limited, and to
what purpose is that limitation committed to writing, if these
limits may, at any time, be passed by those intended to be re-
strained? The distinction between a government with limited
and unlimited powers is abolished, if those limits do not confine
the persons on whom they are imposed, and if acts prohibited and
acts allowed are of equal obligation. It is a proposition too plain
to be contested, that the constitution controls any legislative act
repugnant to it; or, that the legislature may alter the constitu-
tion by an ordinary act.
Between these alternatives there is no middle ground. The
4 CASES ON CONSTITUTIONAL LAW.
constitution is either a superior paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative acts,
and, like other acts, is alterable when the legislature shall please
to alter it.
If the former part of the alternative be true, then a legislative
act contrary to the constitution is not law ; if the latter part' be
true, then written constitutions are absurd attempts, on the part
of the people, to limit a power in its own nature illimitable.
Certainly all those who have framed written constitutions con-
template them as forming the fundamental and paramount law of
the nation, and, consequently, the theory of every such govern-
ment must be, that an act of the legislature, repugnant to the
constitution, is void.
This theory is essentially attached to a written constitution,
and is consequently to be considered, by this court, as one of the
fundamental principles of our society. It is not, therefore, to .be
lost sight of in the further consideration of this subject.
If an act of the legislature, repugnant to the constitution, is
void, does it, notwithstanding its invalidity, bind the courts, and
oblige them to give it effect? Or, in other words, though it be
not law, does it constitute a rule as operative as if it was a law ?
This would be to overthrow in fact what was established in
theory ; and would seem, at first view, an absurdity too gross to
be insisted on. It shall, however, receive a more attentive con-
sideration.
It is emphatically the province and duty of the judicial depart-
ment to say what the law is. Those who apply the rlile to particu-
lar cases, must of necessity expound and interpret that rule. If
two laws conflict with each other, the courts must decide on the
operation of each.
So if a law be in opposition to the constitution ; if both the law
and the constitution apply to a particular case, so that the court
must either decide that case conformably to the law, disregarding
the constitution, or conformably to the constitution, disregarding
the law, the court must determine which of these conflicting rules
governs the case. This is of the very essence of judicial duty.
If, then, the courts are to regard the constitution, and the con-
stitution is superior to any ordinary act of the legislature, the
constitution, and not such ordinary act, must govern the case- to
which they both apply.
Those, then, who controvert the principle that the constitution
is to be considered, in court, as a paramount law, are reduced to
MARBURT V. MADISON. 5
the necessity of maintaining that courts must close their eyes on
the constitution, and see only the law.
This doctrine would subvert the very foundation of all written
constitutions. It would declare that an act which, according to
the principles and theory of our government, is entirely void, is
yet, in practice, completely obligatory. It would declare that if
the legislature shall do what is expressly forbidden, such act,
notwithstanding the express prohibition, is in reality effectual. It
would be giving to the legislature a practical and real omni-
potence, with the same breath which professes to restrict their
powers within narrow limits. It is prescribing limits, and declar-
ing that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the great-
est improvement on political institutions, a written constitution,
would of itself be sufficient, in America, where written constitu-
tions have been viewed with so much reverence, for rejecting the
construction. But the peculiar expressions of the, constitution of
the United States furnish additional arguments in favor of its
rejection.
The judicial power of the United States is extended to all cases
arising under the constitution.
Could it be the intention of those who gave this power, to say
that in using it the constitution should not be looked into ? That
a case arising under the constitution should be decided without
examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases, then, the constitution must be looked into by the
judges. And if they can open it at all, what part of it are they
forbidden to read or to obey?
There are many other parts of the constitution which serve to
illustrate this subject.
It is declared that "no tax or duty shall be laid on articles
exported from any State. ' ' Suppose a duty on the export of cot-
ton, of tobacco, or of flour; and a suit instituted to recover it.
Ought judgment to be rendered in such a case ? Ought the judges
to close their eyes on the constitution, and only see the law?
The constitution declares "that no bill of attainder or ex post
facto law shall be passed."
If, however, such a bill should be passed, and a person should
be prosecuted under it, must the court condemn to death those
victims whom the constitution endeavors to preserve?
"No person," says the constitution, "shall be convicted of
6 CASES ON CONSTITUTIONAL LAW.
treason unless on the testimony of two witnesses to the same overt
act, or on confession in open court. ' '
Here the language of the constitution is addressed especially to
the courts. It prescribes, directly for them', a rule of evidence not
to be departed from. If the legislature should change that rule,
and declare one witness, or a confession out of court, sufficient for
conviction, must the constitutional principle yield to the legis-
lative act ?
From these, and many other selections which might be made, it
is apparent that the framers of the constitution contemplated
that instrument as a rule for the government of courts, as well as
of the legislature.
Why otherwise does it direct the judges to take an oath to sup-
port it ? This oath certainly applies in an especial manner to their
conduct in their official character. How immoral to impose it on
them, if they were to be used as the instruments, and the knowing
instruments, for violating what they swear to support !
The oath of office, too, imposed by the legislature, is completely
demonstrative of the legislative opinion on this subject. It is in
these words : " I do solemnly swear that I will administer justice
without respect to persons, and do equal right to the poor and to
the rich ; and that I will faithfully and impartially discharge all
the duties incumbent on me as , according to the best of my
abilities and understanding, agreeably to the constitution and
laws of the United States. ' '
Why does a judge swear to discharge his duties agreeably to
the constitution of the United States, if that constitution forms
no rule for his government — if it is closed upon him, and cannot
be inspected by him?
If such be the real state of things, this is worse than solemn
mockery. To prescribe, or to take this oath, becomes equally a
crime.
It is also not entirely unworthy of observation, that in declaring
what shall be the supreme law of the land, the constitution itself
is first mentioned; and not the laws of the United States gen-
erally, but those only which shall be made in pursuance of the
constitution, have that rank.
Thus, the particular phraseology of the constitution of the
United States confirms and strengthens the principle, supposed
to be essential to all written constitutions, that a law repugnant
to the constitution is void; and that courts, as well as other
departments, are bound by that instrument.
The rule must be discharged.
MARBURY V. MADISON. 7
Note. — The principle that an act of legislation contrary to the law under
which a legislative body is organized is invalid was familiar to Americans at
the time the Constitution was adopted. Prior to the Revolution, the validity
of an act could be tested in two ways, — by an appeal to the King in Council
to set aside the enactment of a colonial legislature, or by an appeal from
the decision of a colonial court. Beginning with the Virginia charter of
1612, the legislatures of the colonies were always expressly restricted to the
adoption of laws not repugnant to those of England, while it was necessarily
implied that their enactments should conform to all the terms of the charters
under which they acted. In all the royal colonies it was required that the
enactments of the colonial legislatures should be submitted to the Crown, and
such as did not meet with its approval could be "disallowed." On July 4,
1660, there was appointed a Committee of the Privy Council for the consid-
eration of "petitions, propositions, memorials, and other addresses ....
respecting the Plantations." Acts of the Privy Council, I, xiii. In 1677
this Committee annulled three acts of the legislature of Virginia on the
ground that they were in excess of its powers. In 1696 this Committee was
succeeded by a more famous one known as the ' ' Lords of Trade and Planta-
tion, " commonly called the Board of Trade, which until its dissolution in
1782 was the chief instrumentality of the Privy Council for dealing with all
matters relating to the legislation of the colonies. In reviewing the acts of
the colonial legislatures, the Board was concerned not only with the power
of the legislature to enact the measure in question but also with the expediency
of the enactment. Before beginning the consideration of such acts, the
Board commonly referred them to law officers for an opinion ' ' in point of
law," the point which was most frequently raised being that of legislative
power. It was not unusual for such officers to hear counsel for the colonists
or for persons interested in the legislation under discussion. On the ground
that they conflicted with the colonial charter or with the laws of England,
enactments were disallowed from Virginia in 1677, from Ehode Island in
1704, from Connecticut in 1705, from North Carolina in 1747, from Pennsyl-
vania in 1760, from New Hampshire in 1764, and from Massachusetts in
1772. In all, 8563 acts of the colonies which later formed the United States
were submitted to the Privy Council, of which 469 were disallowed. The
records of the Privy Council are so imperfect as to make it impossible to
determine how many of these were set aside because of lack of authority on
the part of the legislature to enact them, but enough is known to know that
the proportion is large. For a full treatment of this subject see Eussell,
The Eeview of Colonial Legislation by the King in Council; Andrews, British
Committees, Commissions, and Councils of Trade and Plantations; Chalmers,
Opinions.
Besides appeals to the Privy Council from the enactments of colonial
legislatures, there were also many appeals from the decisions of colonial
courts. The best known instance of this is the famous case of Winthrop v.
Lechmere (1727-8), Thayer, Cases on Constitutional Law, I, 34. In this case
the appellant argued that an act of the General Assembly of Connecticut
entitled "An Act for the Settlement of Intestates' Estates" was void "as
not being warranted by the Charter, ' ' and the Privy Council so advised His
Majesty, who thereupon issued a decree declaring the Act "nuU and void
and of no force or effect whatever. ' ' The nature of the King 's action was
8 CASES ON CONSTITUTIONAL LAW.
appreciated by Winthrop and correctly set forth by him in a petition in 1730,
in which he said :
This action being for the reasons above mentioned, in its own /
nature null, void, and repugnant to the very powers granted by
King Charles the Second, it is a gross mistake in the petitioners to
allege that the same was annulled by his Majesty's order in Council
of the 5th of February, 1727. Whereas his Majesty did, upon
counsel heard upon both sides thereof, only relieve your memorialist
as a subject and an inhabitant of the Province of Connecticut, who
resorted to his royal justice for relief against the oppression of a
Court of Probates acting without any legal jurisdiction, under the
pretended authority of an Act of Assembly, which being contrary
to law and to their charter was in itself void and null, even before
his Majesty for the future information of his Majesty's subjects
in Connecticut was graciously pleased to declare it so.
n., I, 39n.
Here again the records of the Privy Council are so imperfect that it is
impossible to determine how many of the cases appealed to it from the
American colonies, aggregating more than 260 in number, were based on an
alleged conflict between a legislative enactment and a colonial charter.
Besides Winthrop v. Lechmere, two other well authenticated cases are known
— Philips V. Savage (1738), Acts of the Privy Council, III, 432, in which
the Privy Council upheld the decrees of the Massachusetts court, and Clark
V. Tousey (1745), 76., Ill, 580, in which the Privy Council reversed its
decision in Winthrop v. Lechmere. For an excellent treatment of this sub-
ject see Schlesinger, ' ' Colonial Appeals to the Privy Council, ' ' in Political
Science Quarterly, XXVIII, 279, 433. Also see Hazeltine, "Appeals from
the Colonial Courts to the King in Council, ' ' Annual Export of the American
Historical Association for 1894, 299. In several of the colonies attempts
were made to prevent appeals to the King in Council, thus leaving to the
colonial courts the final determination of the validity of colonial legislation.
But the Privy Council declared that "an appeal doth lye to H. M. in his
Council as a right inherent in the Crown. ' ' Cited by Schlesinger, in Political
Science Quarterly, XXVIII, 295. See also the case of Christian v. Corren
(1716), 1 Peere Williams, 329, also in MacQueen, 2*7*6 Appellate Jurisdiction
qf the House of Lords and Privy Council, 740.
The distinction between the function of the Privy Council as a sort of
board for the review of colonial legislation and its function as a court to hear
appeals from the decisions of colonial courts was well indicated in an
opinion of Sir Charles Pratt (afterwards Lord Camden), Attorney General,
and Hon. Charles Yorke, Solicitor General, given Augusi< 19, 1760. Ques-
tioned as to the power of the King to set aside particular clauses of an act
of colonial legislation leaving the rest of the act in force, they advised that
this should not be done, but added :
At the same time we are of opinion that there may be cases in
which particular provisions may be void ah initio though other parts
of the law may be valid, as in clauses where any act of Parliament
may be eontraversed or any legal right of a private subject
bound without his consent. These are cases the decision of which
does not depend on the exercise of a discretionary prerogative,
MAKBURY V. MADISON. 9
but may arise judicially and must be determined by the general
rules of law and the constitution of England. And upon this ground
it is, that in some instances whole acts of assembly have been de-
clared void in the courts of Westminster Hall, and by His Majesty
in council upon appeals from the plantations.
Statutes at Large of Pennsylvania, V, 735.
Besides the cases appealed to the Privy Council, the right of the courts
to determine the validity of acts of the legislature had been involved in cases
in at least five States before the assembling of the Federal Convention, viz.
in Holmes v. Walton, New Jersey, 1780 ; in Commonwealth v. Caton, Virginia,
1782; in Eutgers v. Waddington, New York, 1784; in Trevett v. Weeden,
Ehode Island, 1786; and Bayard v. Singleton, North Carolina, 1787. All
these cases are printed in Thayer, Cases, I, 55-83, except Holmes v. Walton,
for which see American Historical Review, TV, 456. In Eutgers v. Wadding-
ton, the court distinctly repudiated any claim of right to question the valid-
ity of a legislative enactment. In Commonwealth v. Caton the facts did not
require the court to pass upon the question, but in the opinion of Chancellor
Wythe, there is this strong dictum :
If the whole legislature, an event to be deprecated, should at-
tempt to overleap the bounds prescribed to them by the people, I, in
administering the public justice of the country, will meet the united
powers at my seat in this tribunal ; and, pointing to the Constitution,
will say to them, here is the limit of your authority, and hither shall
you go, but no further.
This dictum derives additional interest from the fact that the judge who
made it was John Marshall 's preceptor in law at the College of William and
Mary.
By far the best known of these cases is that of Trevett v. Weeden, where
the judges, while dismissing the case for lack of jurisdiction, nevertheless
pronounced an act of the legislature invalid, and were summoned before that
body to give an account of themselves. One of the judges defended their
decision " in a very learned, sensible, and elaborate discourse in which he
was upwards of six hours upon the floor." Neither this argument nor that
of the other judges satisfied the legislature, for it "Besolved, that no satis-
factory reasons had been rendered by them for their judgment on the fore-
going information. ' ' See Beoords of the State of Rhode Island and Provi-
dence Plantations, edited by J. E. Bartlett, X, 215. When the terms of the
judges, who were elected by the legislature, expired a short time after, the
legislature allowed all but one of them to retire from the bench. In Holmes
v. Walton and Bayard v. Singleton, the judgment of the court pronouncing
a legislative act invalid was acquiesced in by the legislature.
In the Federal Convention and also in the State conventions called to act
on the new Constitution, the question was frequently raised as to what would
happen in case Congress should adopt an act which contravened or exceeded
the powers with which it was vested. This discussion is well summarized in
Melvin, "The Judicial Bulwark of the Constitution," in Xhe American
Political Science Beview, VIII, 167. In the Convention of Virginia Marshall
said, "If they were to make a law not warranted by any of the powers enu-
10 CASES ON CONSTITUTIONAL LAW.
merated, it would be considered by the judges as an infringement of the
Constitution which they are to guard. They would not consider such a law
as coming under their jurisdiction. They would declare it void. ' ' EUiot 's
Delates, III, 553. Patrick Henry said in the same body, ' ' I take it as the
highest encomium on this country, that the acts of the legislature, if, uncon-
stitutional, are liable to be opposed by the judiciary. ' ' IT)., Ill, 325. Similar
declarations were made in many other States, as for instance by William E.
Davie in the North Carolina Convention, lb., IV, 155; by Oliver EUsworth
in the Connecticut Convention, Ih., II, 196 ; by Samuel Adams in the Massa-
chusetts Convention, 11., II, 151 ; by Charles Pinckney in the South Carolina
Legislature, Ih., IV, 257, and by James "Wilson in the Pennsylvania Conven-
tion, lb., II, 489; while Alexander Hamilton made the same idea current
throughout the country by saying in The Federalist :
The interpretation of the laws is the proper and peculiar province
of the courts. A Constitution is, in fact, and must be regarded by
the judges as a fundamental law. It must therefore belong to them
to ascertain its meaning, as well as the meaning of any particular
act proceeding from the legislative body. If there should happen to
be an irreconcilable variance between the two, that which has the
superior obligation and validity ought, of course, to be preferred:
In other words, the Constitution ought to be preferred to the
statutes, the intention of the people to the intention of their agents.
The power of the courts to declare legislative acts invalid because of
conflict with the Constitution is often said to be peculiar to the United
States, but it is found in many other countries. The Privy Council of Great
Britain still continues to set aside acts of the colonial legislatures because
of conflict with the fundamental colonial law. Among recent cases, see
Eoyal Bank of Canada v. The King, 1913, Appeal Cases, 283; Cotton v. The
King, 1914, Appeal Cases, 176; Attorney-General for Alberta v. Attorney-
General for Canada, 1915, Appeal Cases, 363. The courts of appeals of the
several colonies exercise a similar power. See the decisions of the High
Court of Australia in Australian Boot Trade Employees ' Federation v. Why-
brow (1910), 10 Commonwealth Law Eeports, 267, and The King v. Com-
monwealth Court of Conciliation and Arbitration (1910), 11 Commonwealth
Law Eeports, 2. For New Zealand, see Clemison v. Mayor of West Harbour
(1895), 13 New Zealand Law Eeports, 695. For South Africa, see Mu-
nicipality of Worcester v. Colonial Government (1907), 24 S. C, Cape of
Good Hope, 67, and Howard v. The Attorney General (1909), Transvaal Law
Eeports, High Court, 164. This power is not confined to British and
American jurisdictions but is found in Argentina (Eosooe Pound, The
Judicial Office in the United States, 17, 20), in Bolivia (Annual Bulletin,
Comparative Law Bureau of the American Bar Association, July 1, 1914,
69), Colombia {lb., 101), Cuba (Z6., 104), Mexico (76., 121), Venezuela
(16., 148). For these and other details see Beport to the New Yorlc State
Bar Association, Senate Document, No. 941, 63rd Congress, Srd Session.
A statute is always presumed to be valid. Ex parte Young (1908), 209
U. S. 123, and if its language permits, the courts will so construe it as to
preserve its validity. Knights Templars ' Indemnity Company v. Jarmau
(1902), 187 U. S. 197; United States v. Delaware & Hudson By. (1909), 213
MARBtJRY V. MADISON. 11
TT. S. 366; St. Louis Southwestern Ey. v. Arkansas (1914), 235 U. S. 350.
Except in a few States where the courts are required to give advisory
opinions, a court will not pass upon the validity of a statute except as inci-
dental to the decision of a case before it, and then only when it is necessary
to the decision. California v. San Pablo & Tulare Ey. (1893), 149 XT. S. 308.
Only one whose rights are affected by a statute will be allowed to question
its constitutionality. The Winnebago (1907), 205 U. S. 354; Mallinckrodt
Chemical Works v. St. Louis (1915), 238 TJ. S. 41. Hence the courts
will not permit the validity of a statute to be tested in a friendly suit where
there is no real antagonism of interests, Chicago & Grand Trunk By. v.
Wellman (1892), 143 U. S. 339, nor will they accept jurisdiction for the
sole purpose of testing the validity of a statute, Muskrat v. United States
(1911), 219 U. S. 346; nor will the Tederal Supreme Court review the de-
cision of a State court where the interest involved is an official and not a
personal one. Marshall v. Dye (1913), 231 U. S. 250.
A statute may contain provisions which are constitutional and others
which are not. If they are separable the court will enforce those which
are valid, provided it is convinced that the legislature would have enacted
them without the invalid provisions. Pollock v. Farmers' Loan and Trust
Co. (1895), 158 U. S. 601; Illinois Central Eailway v. McKendree
(1906), 203 U. S. 514; The Employers' Liability Cases (1908), 207
TJ. S. 463. In all such cases the courts endeavor to ascertain and
apply the will of the legislature. The Trade Mark Cases (1879),
100 U. S. 82; James v. Bowman (1903), 190 U. S. 127. In determining
whether an act is valid the courts do not inquire into the motives of the legis-
lature, Eletcher v. Peck (1810), 6 Cranch, 87; Interstate Commerce Com-
mission V. Brimson (1894), 154 U. S. 447; McCray v. United States (1904),
195 U. S. 27 ; nor are they concerned with the wisdom or expediency of the
act, Halter v. Nebraska (1907), 205 V. S. 34. The validity of an act depends
upon its actual operation and effect as applied and enforced rather than
upon its form. Minnesota v. Barber (1890), 136 U. S. 313; United States
V. Eeynolds (1914), 235 U. S. 133. "An unconstitutional act is not a law.
It confers no rights ; it imposes no duties ; it affords no protection ; it creates
no office. It is, in a legal contemplation, as inoperative as though it had
never been passed." Justice Field in Norton v. Shelby County (1886), 118
U. S. 425. There is authority however for holding that an unconstitutional
act may not be treated as an absolute nullity from the date of its enactment
to the date of its setting aside by the courts. United States v. Eealty Co.
(1896), 163 U. S. 427. Especially may an officer who conforms to a legislative
act claim the protection of that act if it is not void on its face. The State
V. Carroll (1871), 38 Connecticut 449; State ex rel. New Orleans Canal and
Banking Co. et al. v. Heard (1895), 47 La. Ann. 1679;. 47 L. E. A. 512,
where a learned note collects the cases on the subject. See also Allison v.
Corker (1902), 67 N. J. Law, 596, annotated in 60 L. E. A. 564, where the
court says "For many purposes an unconstitutional statute may influence
judicial judgment, where, for example, under color of it private or public
actions have been taken. An unconstitutional statute is not merely blank
paper. The solemn act of the legislature is a fact to be reckoned with.
Nowhere has power been vested to expunge it or remove it from its proper
place among the statutes. ' '
There is a voluminous literature upon the power of the courts to disregard
12 CASES ON CONSTITUTIONAL LAW.
unconstitutional legislation. Besides the authorities cited above, see Baldwin,
The American Judiciary; Beard, The Supreme Court and the Constitution;
Brinton Cox, Judicial Power, and Unconstitutional Legislation ; Corwin, The
Doctrine of Judicial Review; Dougherty, Vomer of the Federal Judiciary over
Legislation; Haines, The American Doctrine of Judicial Supremacy ; Mc-
Laughlin, The Courts, the Constitution and Parties; J. B. Thayer, Legal
Essays. A list of eases in which the Federal Supreme Court has declared
statutes or parts of statutes invalid down to the end of the October Term,
1888, is given in 131 U. S., Appendix, cexxxv; but it is not accurate.
United States v. Ferreira, 13 Howard 40, which is included, should be
omitted, and Scott v. Sandford, 19 Howard 393, which is omitted, should be
included. A later and more reliable enumeration and classification of such
decisions may be found in Moore, The Supreme Court and Unconstitutional
Legislation. For the argument against the doctrine of Marbury v. Madison
see Eakin v. Eaub (1825), 12 Sargeant & Eawle, 330, also in Thayer, Cases, I,
133, Jackson's veto of the United States Bank bill, Eichardson, Messages
and Papers of the Presidents, II, 581-583, and a speech by Eoscoe Conkling,
AprU 16, 1860, Congressional Globe, 36tb Congress, 1st session, App. 233.
Section 2. Implied and Inherent Powers of
THE Federal Government.
The Congress shall have power ... To make all laws which
shall be necessary and proper for carrying into execution the fore-
going powers, and all other powers vested by the Constitution in the
government of the United States, or in any department or ofB.cer
thereof.
Constitution of the United States, Art. I, sec. 8.
McCULLOCH V. THE STATE OF MARYLAND et al.
Supreme Court of the United States. 1819.
4 Wheaton, 316; 4 Lawyers' Ed. 579.
Error to the Court of Appeals of the State of Maryland. . . .
[In 1816, Congress incorporated the Bank of the United States,
which in 1817 established a branch in Baltimore. In 1818 the
legislature of Maryland passed "An Act to impose a Tax on all
Banks, or Branches thereof, in the State of Maryland, not char-
tered by the Legislature." McCulloch, the cashier of the branch
in Baltimore, having issued notes upon unstamped paper in vio-
lation of this act, this suit was brought against him. In the
course of the argument both the power of Congress to incorporate
a bank and the power of a State to tax such a bank were called
in question.]
Mcculloch v. state of Maryland. 13
Maeshalii, C. J., delivered the opinion of the court. ■
In the ease now to be determined, the defendant, a sovereign
state, denies the obligation of a law enacted by the legislature of
the Union ; and the plaintiff, on his part, contests the validity of
an act which has been passed by the legislature of the State.
The constitution of our country, in its most interesting and vital
parts, is to be considered; the conflicting powers of the govern-
ment of the Union and of its members, as marked in that consti-
tution, are to be discussed; and an opinion given, which may
essentially influence the great operations of the government. No
tribunal can approach such a question without a deep sense of its
importance, and of the awful responsibility involved in its deci-
sion. But it must be decided peacefully, or remain a source of
hostile legislation, perhaps of hostility of a still more serious
nature ; and if it is to be so decided, by this tribunal alone can
the decision be made. On the supreme court of the United States
has the constitution of our country devolved this important duty.
The first question made in the cause is, has congress power to
incorporate a bank 1
It has been truly said, that this can scarcely be considered as
an open question, entirely unprejudiced by the former proceed-
ings of the nation respecting it. The principle now contested
was introduced at a very early period of our history, has been
recognized by many successive legislatures, and has been acted
upon by the judicial department, in cases of peculiar delicacy, as
a law of undoubted obligation.
It will not be denied, that a bold and daring usurpation might
be resisted, after an acquiescence still longer and more complete
than this. But it is conceived that a doubtful question, one on
which human reason may pause, and the human judgment be sus-
pended, in the decision of which the great principles of liberty
are not concerned, but the respective powers of those who are
equally the representatives of the people, are to be adjusted, if
not put at rest by the practice of the government, ought to re-
ceive a considerable impression from that practice. An exposi-
tion of the constitution, deliberately established by legislative
acts, on the faith of which an immense property has been ad-
vanced, ought not to be lightly disregarded.
The power now contested was exercised by the first congress
elected under the present constitution. The bill for incorporating
the Bank of the United States did not steal upon an unsuspecting
legislature, and pass unobserved. Its principle was completely
understood, and was opposed with equal zeal and ability. After
14 CASES ON CONSTITUTIONAL LAW.
being resisted, first in the fair and open field of debate, and after-
wards in the executive cabinet, with as much persevering talent
as any measure has ever experienced, and being supported by
arguments which convinced minds as pure and as intelligent as
this country can boast, it became a law. The original act was
permitted to expire ; but a short experience of the embarrassments
to which the refusal to revive it exposed the government, con-
vinced those who were most prejudiced against the measure of its
necessity, and induced the passage of the present law. It would
require no ordinary share of intrepidity to assert, that a meas-
ure adopted under these circumstances, was a bold and plain
usurpation, to which the constitution gave no countenance.
These observations belong to the cause : but they are not made
under the impression that, were the question entirely new, the
law would be found irreconcilable with the constitution.
In discussing this question, the counsel for the State of Mary-
land have deemed it of some importance, in the construction of
the constitution, to consider that instrument not as emanating
from the people, but as the act of sovereign and independent
States. The powers of the general government, it has been said,
are delegated by the States, who alone are truly sovereign ; and
must be exercised in subordination to the States, who alone pos-
sess supreme dominion.
It would be difficult to sustain this proposition. The conven-
tion which framed the constitution was, indeed, elected by the
state legislatures. But the instrument, when it came from their
hands, was a mere proposal, without obligation, or pretensions
to it. It was reported to the then existing congress of the United
States, with a request that it might "be submitted to a conven-
tion of delegates, chosen in each State, by the people thereof,
under the recommendation of its legislature, for their assent and
ratification. ' ' This mode of proceeding was adopted ; and by the
convention, by congress, and by the State legislatures, the instru-
ment was submitted to the people. They acted upon it, in the
only manner in which they can act safely, effectively, and wisely,
on such a subject, by assembling in convention. It is true, they
assembled in their several States; and where else should they
have assembled ? No political dreamer was ever wild enough to
think of breaking down the lines which separate the States, and
of compounding the American people into one common mass. Of
consequence, when they act, they act in their States. But the
measures they adopt do not, on that account, cease to be the
McCULLOCfl V. STATE OF MARYLAND. 15
measures of the people themselves, or become the measures of the
State governments.
From these conventions the constitution derives its whole au-
thority. The government proceeds directly from the people; is
"ordained and established" in the name of the people; and is de-
clared to be ordained, "in order to form a more perfect union,
establish justice, insure domestic tranquility, and secure the bless-
ings of liberty to themselves and to their posterity." The assent
of the States, in their sovereign capacity, is implied in calling a
convention, and thus submitting that instrument to the people.
But the people were at perfect liberty to accept or reject it ; and
their act was final. It required not the affirmance, and could not
be negatived, by the State governments. The constitution, when
thus adopted, was of complete obligation, and bound the State
sovereignties.
It has been said that the people had already surrendered all
their powers to the State sovereignties, and had nothing more to
give. But, surely, the question whether they may resume and
modify the powers granted to government, does not remain to be
settled in this country. Much more might the legitimacy of the
general government be doubted, had it been created by the States.
The powers delegated to the State sovereignties were to be exer-
cised by themselves, not by a distinct and independent sov-
ereignty, created by themselves. To the formation of a league,
such as was the confederation, the State sovereignties were cer-
tainly competent. But when, "in order to form a more perfect
union, ' ' it was deemed necessary to change this alliance into an
effective government, possessing great and sovereign powers, and
acting directly on the people, the necessity of referring it to the
people, and of deriving its powers directly from them, was felt
and acknowledged by all.
The government of the Union, then (whatever may be the in-
fluence of this fact on the case), is emphatically and truly a gov-
ernment of the people. In form and in substance it emanates
from them. Its powers are granted by them, and are to be exer-
cised directly on them, and for their benefit.
This government is acknowledged by all to be one of enumer-
ated powers. The principle, that it can exercise only the powers
granted to it, would seem too apparent to have required to be
enforced by all those arguments which its enlightened friends,
while it was depending before the people, found it necessary to
urge. That principle is now universally admitted. But the ques-
tion respecting the extent of the powers actually granted, is per-
16 CASES ON CONSTITUTIONAL LAW.
petually arising, and will probably continue to arise, as long as
our system shall exist.
In discussing these questions, the conflicting powers of the gen-
eral and State governments must be brought into view, and the
supremacy of their respective laws, when they are in opposition,
must be settled.
If any one proposition could command the universal assent of
mankind, we might expect that it would be this : that the govern-
ment of the Union, though limited in its powers, is supreme
within its sphere of action. This would seem to result necessarily
from its nature. It is the government of all ; its powers are dele-
gated by all ; it represents all, and acts for all. Though any one
State may be willing to control its operations, no State is willing
to allow others to control them. The nation, on those subjects
on which it can act, must necessarily bind its component parts.
But this question is not left to mere reason : the people have, in
express terms, decided it, by saying, "this constitution, and the
laws of the United States, which shall be made in pursuance
thereof," "shall be the supreme law of the land," and by requir-
ing that the members of the State legislatures, and the ofiScers
of the executive and judicial departments of the States, shaU take
the oath of fidelity to it.
The government of the United States, then, though limited in
its powers, is supreme ; and its laws, when made in pursuance of
the constitution, form the supreme law of the land, ' ' anything in
the constitution or laws of any State, to the contrary notwith-
standing."
Among the enumerated powers, we do not find that of estab-
lishing a bank or creating a corporation. But there is no phrase
in the instrument which, like the articles of confederation, ex-
cludes incidental or implied powers; and which requires that
everything granted shall be expressly and minutely described.
Even the 10th amendment, which was framed for the purpose of
quieting the excessive jealousies which had been excited, omits the
word "expressly," and declares only that the powers "not dele-
gated to the United States, nor prohibited to the States, are re-
served to the States or to the people ; ' ' thus leaving the question,
whether the particular power which may become the subject of
contest, has been delegated to the one government, or prohibited
to the other, to depend on a fair construction of the whole instru-
ment. The men who drew and adopted this amendment had ex-
perienced the embarrassments resulting from the insertion of this
word in the articles of confederation, and probably omitted it to
Mcculloch v. state of maeyland. 17
avoid those embarrEissmeiits. A constitution, to contain an accu-
rate detail of all the subdivisions of which its great powers will
admit, and of all the means by which they may be carried into
execution, would partake of the prolixity of a legal code, and
could scarcely be embraced by the human mind. It would prob-
ably never be understood by the public. Its nature, therefore, re-
quires, that only its great outlines should be marked, its impor-
tant objects designated, and the minor ingredients which com-
pose those objects be deduced from the nature of the objects
themselves. That this idea was entertained by the framers of the
American constitution, is not only to be inferred from the nature
of the instrument, but from the language. Why else were some
of the limitations, found in the 9th section of the 1st article, in-
troduced ? It is also, in some degree, warranted by their having
omitted to use any restrictive term which might prevent its re-
ceiving a fair and just interpretation. In considering this ques-
tion, then, we must never forget, that it is a constitution we are
expounding.
Although, among the enumerated powers of government, we
do not find the word "bank," or "incorporation," we find the
great powers to lay and collect taxes ; to borrow money ; to regu-
late commerce; to declare and conduct war; and to raise and
support armies and navies. The sword and the purse, all the ex-
ternal relations, and no inconsiderable portion of the industry of
the nation, are intrusted to its government. It can never be pre-
tended that these vast powers draw after them others of inferior
importance, merely because they are inferior. Such an idea can
never be advanced. But it may, with great reason, be contended;
that a government, intrusted with such ample powers, on the due
execution of which the happiness and prosperity of the nation so
vitaUy depends, must also be intrusted with ample means for their
execution. The power being given, it is the interest of the nation
to facilitate its execution. It can never be their interest, and
cannot be presumed to have been their intention, to clog and
embarrass its execution by withholding the most appropriate
means. Throughout this vast republic, from the St. Croix to the
Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be
collected and expended, armies are to be marched and supported.
The exigencies of the nation may require, that the treasure raised
in the North should be transported to the South, that raised in
the East conveyed to the "West, or that this order should be re-
versed. Is that construction of the constitution to be preferred
which would render these operations difficult, hazardous, and ex-
B. C. L.— 2
18 CASES ON CONSTITUTIONAL LAW.
pensive ? Can we adopt that construction (unless the words im-
periously require it) which would impute to the framers of that
instrument, when granting these powers for the public good, the
intention of impeding their exercise by withholding a choice of
means ? If, indeed, such be the mandate of the constitution, we
have only to obey ; but that instrument does not profess to enu-
merate the means by which the powers its confers may be exe-
cuted; nor does it prohibit the creation of a corporation, if the
existence of such a being be essential to the beneficial exercise of
those powers. It is, then, the subject of fair inquiry, how far
such means may be employed.
It is not denied, that the powers given to the government imply
the ordinary means of execution. That, for example, of raising
revenue, and applying it to national purposes, is admitted to im-
ply the power of conveying money from place to place, as the
exigencies of the nation may require, and of employing the usual
means of conveyance. But it is denied that the government has
its choice of means ; or, that it may employ the most convenient
means, if, to employ them, it be necessary to erect a corporation.
On what foundation does this argument rest ? On this alone :
The power of creating a corporation, is one appertaining to sov-
ereignty, and is not expressly conferred on Congress. This is true.
But all legislative powers appertain to sovereignty. The original
power of giving the law on any subject whatever, is a sovereign
power; and if the government of the Union is restrained from
creating a corporation, as a means for performing its functions,
on the single reason that the creation of a corporation is an act
of sovereignty ; if the sufficiency of this reason be acknowledged,
there would be some difSculty in sustaining the authority of con-
gress to pass other laws for the accomplishment of the same
objects.
The government which has a right to do an act, and has im-
posed on it the duty of performing that act, must, according to
the dictates of reason, be allowed to select the means ; and those
who contend that it may not select any appropriate means, that
one particular mode of effecting the object is excepted, take upon
themselves the burden of establishing that exception.
The creation of a corporation, it is said, appertains to sov-
ereignty. This is admitted. But to what portion of sovereignty
does it appertain? Does it belong to one more than to another?
In America, the powers of sovereignty are divided between the
government of the Union and those of the States. They are each
sovereign, with respect to the objects committed to it, and neither
McCULLOCH V. STATE OP MARYLAND. 19
I
sovereign with respect to the objects committed to the other. We
cannot comprehend that train of reasoning which would maintain,
that the extent of power granted by the people is to be ascer-
tained, not by the nature and terms of the grant, but by its date.
Some state constitutions were formed before, some since that of
the United States. We cannot believe that their relation to each
other is in any degree dependent upon this circumstance. Their
respective powers must, we think, be precisely the same as if they
had been formed at the same time. Had they been formed at the
same time, and had the people conferred on the general govern-
ment the power contained in the constitution, and on the States
the whole residuum of power, would it have been asserted that
the government of the Union was not sovereign with respect to
those objects which were entrusted to it, in relation to which its
laws were declared to be supreme ? If this could not have been
asserted, we cannot well comprehend the process of reasoning
which maintains, that a power appertaining to sovereignty can-
not be connected with that vast portion of it which is granted to
the general government, so far as it is calculated to subserve the
legitimate objects of that government. The power of creating
a corporation, though appertaining to sovereignty, is not, like the
power of making war, or levying taxes, or of regulating com-
merce, a great substantive and independent power, which cannot
be implied as incidental to other powers, or used as a means of
executing them. It is never the end for which other powers are
exercised, but a means by which other objects are accomplished.
No contributions are made to charity for the sake of an incorpo-
ration, but a corporation is created to administer the charity;
no seminary of learning is instituted in order to be incorporated,
but the corporate character is conferred to subserve the purposes
of education. No city was ever built with the sole object of being
incorporated, but is incorporated as affording the best means of
being well governed. The power of creating a corporation is
never used for its own sake, but for the purpose of effecting some-
thing else. No sufficient -reason is, therefore, perceived, why it
may not pass as incidental to those powers which are expressly
given, if it be a direct mode of executing them.
But the constitution of the' United States has not left the right
of congress to employ the necessary means, for the execution
the powers conferred on the government, to general reasoning.
To its enumeration of powers is added that of making "all laws
which shall be necessary and proper, for carrying into execution
the foregoing powers, and all other powers vested by this consti-
20 CASES ON CONSTITUTIONAL LAW.
tution, in the government of the United States, or in any depart-
ment thereof."
The counsel for the State of Maryland have urged various argu-
ments to prove that this clause, though in terms a grant of power,
is not so in effect ; but is really restrictive of the general right,
which might otherwise be implied, of selecting means for exe-
cuting the enumerated powers.
In support of this proposition, they have found it necessary to
contend, that this clause was inserted for the purpose of confer-
ring on congress the power of making laws. That, without it,
doubts might be entertained whether congress could exercise its
powers in the form of legislation.
But could this be the object for which it was inserted? A
government is created by the people, having legislative, executive,
and judicial powers. Its legislative powers are vested in a con-
gress, which is to consist of a senate and house of representa-
tives. Each house may determine the rule of its proceedings ; and
it is declared that every bill which shall have passed both houses,
shall, before it becomes a law, be presented to the President of
the United States. The 7th section describes the course of pro-
ceedings, by which a bill shall become a law ; and, then, the 8th
section enumerates the powers of congress. Could it be necessary
to say, that a legislature should exercise legislative powers, in the
shape of legislation? After allowing each house to prescribe its
own course of proceeding, after describing the manner in which
a bill should become a law, would it have entered into the mind
of a single member of the convention, that an express power to
make laws was necessary to enable the legislature to make them ?
That a legislature, endowed with legislative powers, can legislate,
is a proposition too self-evident to have been questioned.
But the argument on which most reliance is placed is drawn
from the peculiar language of this clause. Congress is not em-
powered by it to make all laws, which may have relation to the
powers conferred on the government, but only such as may be
"necessary and proper" for carrying them into execution. The
word "necessary" is considered as controlling the whole sentence,
and as limiting the right to pass laws for the execution of the
granted powers, to such as are indispensable, and without which
the power would be nugatory. That it excludes the choice of
means, and leaves to congress, in each case, that only which is
most direct and simple.
Is it true that this is the sense in which the word "necessary"
is always used ? Does it always import an absolute physical neces-
Mcculloch v. state op Maryland. 21
sity, so strong, that one thing, to which another may be termed
necessary, cannot exist without that other ? We think it does not.
If reference be had to its use, in the common affairs of the world,
or in approved authors, we find that it frequently imports no
more than that one thing is convenient, or useful, or essential to
another. To employ the means necessary to an end is generally
understood as employing any means calculated to produce the
end, and not as being confined to those single means, without
which the end would be entirely unattainable. Such is the char-
acter of humaji language, that no word conveys to the mind, in
all situations, one single definite idea ; and nothing is more com-
mon than to use words in a figurative sense. Almost all compo-
sitions contain words, which, taken in their rigorous sense, would
convey a meaning different from that which is obviously intended.
It is essential to just construction that many words which import
something excessive, should be understood in a more mitigated
sense — in that sense which common usage justifies. The word
"necessary" is of this description. It has not a fixed character
peculiar to itself. It admits of all degrees of comparison ; and is
often connected with words, which increase or diminish the im-
pression the mind receives of the urgency it imports. A thing
may be necessary, very necessary, absolutely or indispensably
necessary. To no mind would the same idea be conveyed by
these several phrases. This comment on the word is well illus-
trated, by the passage cited at the bar, from the 10th section of
the 1st article of the constitution. It is, we think, impossible to
compare the sentence which prohibits a State from laying "im-
posts, or duties on imports or exports, except what may be abso-
lutely necessary for executing its inspection laws," with that
which authorizes congress "to make all laws which shall be neces-
sary and proper for carrying into execution" the powers of the
general government, without feeling a conviction that the con-
vention understood itself to change materially the meaning of
the word ' ' necessary ' ' by prefixing the word ' ' absolutely. ' ' This
word, then, like others, is used in various senses; and, in its
construction, the subject, the context, the intention of the person
using them, are all to be taken into view.
Let this be done in the case under consideration. The subject
is the execution of those great powers on which the welfare of a
nation essentially depends. It must have been the intention of
those who gave these powers, to insure, as far as human prudence
could insure, their beneficial execution. This could not be done
by confining the choice of means to such narrow limits are not to
22 CASES ON CONSTITUTIONAL LAW.
leave it in the power of congress to adopt any which might be
appropriate, and which were conducive to the end. This pro-
vision is made in a constitution intended to endure for ages to
come, and, consequently, to be adapted to the various crises of
human affairs. To have prescribed the means by which govern-
ment should, in all future time, execute its powers, would have
been to change, entirely, the character of the instrument, and
give it the properties of a legal code. It would have been an un-
wise attempt to provide, by immutable rules, for exigencies which,
if foreseen at all, must have been seen dimly, and which can be
best provided for as they occur. To have declared that the best
means shall not be used, but those alone without which the power
given would be nugatory, would have been to deprive the legisla-
ture of the capacity to avail itself of experience, to exercise its
reason, and to accommodate its legislation to circumstances. If
we apply this principle of construction to any of the powers of
the government, we shall find it so pernicious in its operation that
we shall be compelled to discard it. The powers vested in con-
gress may certainly be carried into execution, without prescribing
an oath of office. The power to exact this security for the faith-
ful performance of duty is not given, nor is it indispensably
necessary. The different departments may be established ; taxes
may be imposed and collected ; armies and navies may be raised
and maintained ; and money may be borrowed, without requiring
an oath of office. It might be argued, with as much plausibility,
as other incidental powers have been assailed, that the convention
was not unmindful of this subject. The oath which might be
exacted — that of fidelity to the constitution — is prescribed, and
no other can be required. Yet, he would be charged with insanity
who should contend that the legislature might not superadd to
the oath directed by the constitution, such other oath of office as
its wisdom might suggest.
So, with respect to the whole penal code of the United States.
"Whence arises the power to punish in cases not prescribed by the
constitution? All admit that the government may, legitimately,
punish any violation of its laws ; and yet this is not among the
enumerated powers of congress. The right to enforce the ob-
servance of law, by punishing its infraction, might be denied with
the more plausibility, because it is expressly given in some cases.
Congress is empowered "to provide for the punishment of coun-
terfeiting the securities and current coin of the United States,"
and "to define and punish piracies and felonies committed on
the high seas, and offenses against the law of nations." The
Mcculloch v. state of Maryland. 23
several powers of congress may exist, in a very imperfect state
to be sure, but they may exist and be carried into execution,
although no punishment should be inflicted in cases where the
right to punish is not expressly given.
Take, for example, the power "to establish post-offices and
post-roads." This power is executed by the single act of making
the establishment. But from this has been inferred the power
and duty of carrying the mail along the post-road, from one post-
office to another. And, from this implied power, has again been
inferred the right to punish those who steal letters from the post-
office, or rob the mail. It may be said, with some plausibility, that
the right to carry the mail, and to punish those who rob it, is not
indispensably necessary to the establishment of a post-office and
post-road. This right is, indeed, essential to the beneficial exer-
cise of the power, but not indispensably necessary to its exist-
ence. So, of the punishment of the crimes of stealing or falsify-
ing a record or process of a court of the United States, or of per-
jury in such court. To punish these offenses is certainly con-
ducive to the due administration of justice. But courts may
exist, and may decide the causes brought before them, though
such crimes escape punishment.
The baneful influence of this narrow construction on all the
operations of the government, and the absolute impracticability
of maintaining it without rendering the government incompetent
to its great objects, might be illustrated by numerous examples
drawn from the constitution and from our laws. The good sense
of the public has pronounced, without hesitation, that the power
of punishment appertains to sovereignty, and may be exercised
whenever the sovereign has a right to act, as incidental to his
constitutional powers. It is a means for carrying into execution
all sovereign powers, and may be used, although not indispensa-
bly necessary. It is a right incidental to the power, and con-
ducive to its beneficial exercise.
If this limited construction of the word "necessary" must be
abandoned in order to punish, whence is derived the rule which
would reinstate it, when the government would carry its powers
into execution by means not vindictive in their nature ? If the
word "necessary" means "needful," "requisite," "essential,"
"conducive to," in order to let in the power of punishment for
the infraction of law, why is it not equally comprehenisve when
required to authorize the use of means which facilitate the exe-
cution of the powers of government without the infliction of
punishment ?
24 CASES ON CONSTITUTIONAL LAW.
In ascertaining the sense in which the word "necessary" is
used in this clause of the constitution, we may derive some aid
from that with which it is associated. Congress shall have power
"to make all laws which shall be necessary and properly to carry
into execution" the powers of the government. If the word
"necessary" was used in that strict and rigorous sense for which
the counsel for the State of Maryland contend, it would be an
extraordinary departure from the usual course of the human
mind, as exhibited in composition, to add a word, the only possi-
ble effect of which is to qualify that strict and rigorous meaning ;
to present to the mind the idea of some choice of means of legisla-
tion not straitened and compressed within the narrow limits for
which gentlemen contend.
But the argument which most conclusively demonstrates the
error of the construction contended for by the counsel for the
State of Maryland, is founded on the intention of the convention,
as manifested in the whole clause. To waste time and argument
in proving that, without it, congress might carry its powers into
execution, would be not much less idle than to hold a lighted
taper to the sun. As little can it be required to prove, that in the
absence of this clause, congress would have some choice of means.
That it might employ those which, in its judgment, would most
advantageously effect the object to be accomplished. That any
means adapted to the end, any means which tended directly to
the execution of the constitutional powers of the government,
were in themselves constitutional. This clause, as construed by
the State of Maryland, would abridge and almost annihilate this
useful and necessary right of the legislature to select its means.
That this could not be intended, is, we should think, had it not
been already controverted, too apparent for controversy. We
think so for the following reasons: —
1. The clause is placed among the powers of congress, not
among the limitations on those powers.
2. Its terms purport to enlarge, not to diminish the powers
vested in the government. It purports to be an additional power,
not a restriction on those already granted. No reason has been
or can be assigned for thus concealing an intention to narrow the
discretion of the national legislature, under words which purport
to enlarge it. The f ramers of the constitution wished its adoption,
and weU knew that it would be endangered by its strength, not by
its weakness. Had they been capable of using language which
would convey to the eye one idea, and after deep reflection, im-
press on the mind another, they would rather have disguised the
Mcculloch v. state of Maryland. 25
grant of power, than its limitation. If then, their intention had
been, by this clause, to restrain the free use of means which might
otherwise have been implied, that intention would have been in-
serted in another place, and would have been expressed in terms
resembling these: "In carrying into execution the foregoing
powers, and all others," &c., "no laws shall be passed but such
as are necessary and proper." Had the intention been to makd
this clause restrictive, it would unquestionably have been so in
form as well as in effect.
The result of the most careful and attentive consideration be-
stowed upon this clause is, that if it does not enlarge, it cannot
be construed to restrain the powers of congress, or to impair the
right of the legislature to exercise its best judgment in the selec-
tion of measures, to carry into execution the constitutional pow-
ers of the government. If no other motive for its insertion can
be suggested, a sufficient one is found in the desire to remove all
doubts respecting the right to legislate on that vast mass of inci-
dental powers which must be involved in the constitution, if that
instrument be not a splendid bauble.
We admit, as all must admit, that the powers of the govern-
ment are limited, and that its limits are not to be transcended.
But we think the sound construction of the constitution must
allow to the national legislature that discretion, with respect to
the means by which the powers it confers are to be carried into
execution, which will enable that body to perform the high duties
assigned to it, in the manner most beneficial to the people. Let
the end be legitimate, let it be within the scope of the constitu-
tion, and all means which are appropriate, which are plainly
adapted to that end, which are not prohibited, but consist with
the letter and spirit of the constitution, are constitutional.
That a corporation must be considered as a means not less
usual, not of higher dignity, not more requiring a particular
specification than other means, has been sufficiently proved. If
we look to the origin of corporations, to the manner in which
they have been framed in that government, from which we have
derived most of our legal principles and ideas, or to the uses to
which they have been applied, we find no reason to suppose that
a constitution, omitting, and wisely omitting, to enumerate all the
means for carrying into execution the great powers vested in gov-
ernment ought to have specified this. Had it been intended to
grant this power as one which should be distinct and independ-
ent, to be exercised in any case whatever, it would have found a
place among the enumerated powers of the government. But
26 CASES ON CONSTITUTIONAL LAW.
being considered merely as a means, to be employed only for the
purpose of carrying into execution the given powers, there could
be no motive for particularly mentioning it.
The propriety of this remark would seem to be generally ac-
knowledged by the universal acquiescence in the construction
which has been uniformly put on the 3d section of the 4th arti-
cle of the constitution. The power to "make all needful rules
and regulations respecting the territory or other property belong-
ing to the United States," is not more comprehensive, than the
power "to make all laws which shall be necessary and proper for
carrying into execution" the powers of the government. Yet 'all
admit the constitutionality of a territorial government, which is
a corporate body.
If a corporation may be employed indiscriminately with other
means to carry into execution the powers of the government, no
particular reason can be assigned for excluding the use of a bank,
if required for its fiscal operations. To use one, must be within
the discretion of congress, if it be an appropriate mode of exe-
cuting the powers of government. That it is a convenient, a use-
ful, and essential instrument in the prosecution of its fiscal opera-
tions, is not now a subject of controversy. All those who have
been concerned in the administration of our finances, have con-
curred in representing its importance and necessity; and so
strongly have they been felt, that statesmen of the first class,
whose previous opinions against it had been confirmed by every
circumstance which can fix the human judgment, have yielded
those opinions to the exigencies of the nation. Under the con-
federation, congress justifying the measure by its necessity,
transcended, perhaps, its powers to obtain the advantage of a
bank; and our own legislation attests the universal conviction
of the utility of this measure. The time has passed away when
it can be necessary to enter into any discussion in order to prove
the importance of this instrument, as a means to effect the legiti-
mate objects of the government.
But were its necessity less apparent, none can deny its being an
appropriate measure ; and if it is, the degree of its necessity, as
has been very justly observed, is to be discussed in another place.
Should congress, in the execution of its powers, adopt measures
which are prohibited by the constitution; or should congress,
under the pretext of executing its powers, pass laws for the
accomplishment of objects not intrusted to the government, it
would become the painful duty of this tribunal, should a case
requiring such a decision come before it, to say that such an act
Mcculloch v. state of maeyland. 27
was not the law of the land. But where the law is not prohibited,
and is really calculated to effect any of the objects intrusted to
the government, to undertake here to inquire into the degree of
its necessity, would be to pass the line which circumscribes the
judicial department, and to tread on legislative ground. This
court disclaims all pretensions to such a power.
After this declaration, it can scarcely be necessary to say, that
the existence of state banks can have no possible influence on the
question. No trace is to be found in the constitution of an inten-
tion to create a dependence of the government of the Union on
those of the States, for the execution of the great powers assigned
to it. Its means are adequate to its ends ; and on those means
alone was it expected to rely for the accomplishment of its ends.
To impose on it the necessity of resorting to means which it can-
not control, which another government may furnish or withhold,
would render its course precarious, the result of its measures un-
certain, and create a dependence on other governments, which
might disappoint its most important designs, and is incompatible
with the language of the constitution. But were it otherwise, the
choice of means implies a right to choose a national bank in pref-
erence to state banks, and congress alone can make the election.
After the most deliberate consideration, it is the unanimous
and decided opinion of this court, that the act to incorporate
the Bank of the United States is a law made in pursuance of the
constitution, and is a part of the supreme law of the land.
The branches, proceeding from the same stock, and being con-
ducive to the complete accomplishment of the object, are equally
constitutional. It would have been unwise to locate them in the
charter, and it would be unnecessarily inconvenient to employ the
legislative power in making those subordinate arrangements. The
great duties of the bank are prescribed; those duties require
branches, and the bank itself may, we think, be safely trusted
with the selection of places where those branches shall be fixed ;
reserving always to the government the right to require that a
branch shall be located where it may be deemed necessary.
It being the opinion of the court that the act incorporating the
bank is constitutional; and that the power of establishing a
branch in the State of Maryland might be properly exercised by
the bank itself, we proceed to inquire :—
2. "Whether the State of Maryland may, without violating the
constitution, tax that branch? . . . [This part of the opin-
ion is given post, page 212.]
"We are unanimously of opinion, that the law passed by the
28 CASES ON CONSTITUTIONAL LAW.
legislature of Maryland, imposing a tax on the Bank of the
United States, is unconstitutional and void. . . .
Note. — The doctrine of implied powers as worked out by Marshall in
McCuUoeh v. Maryland has been so unreservedly accepted that it has now
become almost axiomatic and has been aiiirmed in scores of decisions. The
essential principles upon which Marshall based his argument had been stated
by Hamilton in his Opinion on the Constitutionality of the United States
Bank, a paper with which Marshall was familiar. In this paper Hamilton
had said:
Every power vested in a government is in its nature sovereign,
and includes by force of the term a right to employ all the means
requisite and fairly applicable to the attainment of the ends of
such power, and which are not precluded by restrictions and excep-
tions specified in the Constitution.
Hamilton, Worlcs (Lodge, Ed.) Ill, 181.
And again, in discussing ' ' a criterion of what is constitutional and of what
is not so," Hamilton said:
This criterion is the end, to which the measure relates as a means.
If the end be clearly comprehended within any of the specified
powers, and if the measure have an obvious relation to that end,
and is not forbidden by any particular provision of the Constitution,
it may safely be deemed to come within the compass of the national
authority.
76., Ill, 192.
No other opinion of the Supreme Court has been so much praised as has
that of Marshall in McCulloeh v. Maryland. A most competent critic has
said:
If we regard at once the greatness of the questions at issue in
the particular case, the influence of the opinion, and the large
method and clear and skillful manner in which it is worked out,
there is nothing so fine as the opinion in MeCuUoch v. Maryland.
Thayer, John Marshall, 85.
IN RE NEAGLE.
Supreme Court of the United States. 1890.
135 U. S. 1; 34 Lawyers' Ed. 55.
Appeal from the Circuit Court of the United States for the
Northern District of California.
[When Mr. Justice Field, of the Supreme Court of the United
States, was travelling on circuit in California, there was reason
to believe that one Terry, a suitor in Justice Field's court,
would attack him and do him bodily harm. Therefore, by direc-
tion of the Attorney General of the United States, David Neagle,
In re NEAGLE. 29
a deputy United States marshal, was instructed to accompany
Justice Field for his protection. While on the way from Los
Angeles to San Francisco for the purpose of holding court,
Justice Field was attacked by Terry, whereupon Neagle shot
and killed Terry. Having been arrested by officers of the State
of California charged with the murder of Terry, Neagle sued
out a writ of habeas corpus in the United States Circuit Court
on the ground that he was in custody for an act done in pur-
suance of the laws of the United States. The court having or-
dered his discharge, the sheriff having Neagle in custody appealed
from this order to the Supreme Court of the United States.]
Me. Justice MiliLeb . . . delivered the opinion of the
court. . . .
These are the material circumstances produced in evidence be-
fore the Circuit Court on the hearing of this habeas corpus case.
It is but a short sketch of a history which is given in over five
hundred pages in the record, but we think it is sufficient to enable
us to apply the law pf the case to the question before us. With-
out a more minute discussion of this testimony, it produces upon
us the conviction of a settled purpose on the part of Terry and
his wife, amounting to a conspiracy, to murder Justice Field.
And we are quite sure that if Neagle had been merely a brother
or a friend of Judge Field, travelling with him, and aware of all
the previous relations of Terry to the Judge, — as he was, — of his
bitter animosity, his declared purpose to have revenge even to
the point of killing him, he would have been justified in what he
did in defense of Mr. Justice Field 's life, and possibly of his own.
But such a justification would be a proper subject for consid-
eration on a trial of the case for murder in the courts of the State
of California, and there exists no authority in the courts of the
United States to discharge the prisoner while held in custody by
the State authorities for this offence, unless there be found in aid
of the defence of the prisoner some element of power and author-
ity asserted under the government of the United States.
This element is said to be found in the facts that Mr. Justice
Field, when attacked, was in the immediate discharge of his duty
as judge of the Circuit Courts of the United States within Cali-
fornia ; that the assault upon him grew out of the animosity of
Terry and wife, arising out of the previous discharge of his duty
as circuit justice in the case for which they were committed for
contempt of court; and that the deputy marshal of the United
States, who killed Terry in defence of Field's life, was charged
30 CASES ON CONSTITUTIONAL LAW.
with a duty under the law of the United States to protect Field
from the violence which Terry was inflicting, and which was in-
tended to lead to Field's death.
To the inquiry whether this proposition is sustained by law and
the facts which we have recited, we now address ourselves. . . .
"We have no doubt that Mr. Justice Field when attacked by
Terry was engaged in the discharge of his duties as Circuit Jus-
tice of the Ninth Circuit, and was entitled to all the protection
under those circumstances which the law could give him.
It is urged, however, that there exists no statute authorizing
any such protection as that which Neagle was instructed to give
Judge Field in the present case, and indeed no protection what-
ever against a vindictive or malicious assault growing out of the
faithful discharge of his official duties, and that the language
of section 753 of the Revised Statutes, that the party seeking the
benefit of the writ of habeas corpus must in this connection show
that he is "in custody for an act done or omitted in pursuance
of a law of the United States," makes it necessary that upon this
occasion it should be shown that the act for which Neagle is im-
prisoned was done by virtue of an act of Congress. It is not sup-
posed that any special act of Congress exists which authorizes
the marshals or deputy marshals of the United States in express
terms to accompany the judges of the Supreme Court through
their circuits, and act as a body-guard to them, to defend them
against malicious assaults against their persons. But we are of
opinion that this view of the statute is an unwarranted restric-
tion of the meaning of a law designed to extend in a liberal man-
ner the benefit of the writ of habeas corpus to persons imprisoned
for the performance of their duty. And we are satisfied that if
it was the duty of Neagle, under the circumstances, a duty which
could only arise under the laws of the United States, to defend
Mr. Justice Field from a murderous attack upon him, he brings
himself within the meaning of the section we have recited. This
view of the subject is confirmed by the alternative provision, that
he must be in custody ' ' for an act done or omitted in pursuance
of a law of the United States or of an order, process, or decree of
a court or judge thereof, or is in custody in violation of the Con-
stitution or of a law or treaty of the United States. ' '
In the view we take of the Constitution of the United States,
any obligation fairly and properly inferrible from that instru-
ment, or any duty of the marshal to be derived from the general
scope of his duties under the laws of the United States, is "a law"
within the meaning of this phrase. It would be a great reproach
In ee NEAGLE. 31
to the system of government of the United States, declared to be
within its sphere sovereign and supreme, if there is to be found
•within the domain of its powers no means of protecting the
judges, in the conscientious and faithful discharge of their duties,
from the malice and hatred of those upon whom their judgments
may operate unfavorably. . . .
Where, then, are we to look for the protection which we have
shown Judge Field was entitled to when engaged in the discharge
of his official duties? Not to the courts of the United States;
because, as has been more than once said in this court, in the
division of the powers of government between the three great
departments, executive, legislative and judicial, the judicial is the
weakest for the purposes of self -protection and for the enforce-
ment of the powers which it exercises. The ministerial officers
through whom its commands must be executed are marshals of
the United States, and belong emphatically to the executive de-
partment of the government. They are appointed by the Presi-
dent, with the advice and consent of the Senate. They are remov-
able from office at his pleasure. They are subjected by act of
Congress to the supervision and control of the Department of
Justice, in the hands of one of the cabinet officers of the Presi-
dent, and their compensation is provided by acts of Congress.
The same may be said of the district attorneys of the United
States, who prosecute and defend the claims of the government
in the courts.
The legislative branch of the government can only protect
the judicial officers by the enactment of laws for that purpose,
and the argument we are now combating assumes that no such
law has been passed by Congress.
If we turn to the executive department of the government, we
find a very different condition of affairs. The Constitution, sec-
tion 3, article 2, declares that the President "shall take care that
the laws be faithfully executed," and he is provided with the
means of fulfilling this obligation by his authority to commission
all the officers of the United States, and, by and with the advice
and consent of the Senate, to appoint the most important of them
and to fill vacancies. He is declared to be commander-in-chief
of the army and navy of the United States. The duties which
are thus imposed upon him he is further enabled to perform by
the recognition in the Constitution, and the creation by acts of
Congress, of executive departments, which have varied in num-
ber from four or five to seven or eight, the heads of which are
familiarly called cabinet ministers. These aid him in the per-
32 CASES ON CONSTITUTIONAL LAW.
formanee of the great duties of his office, and represent him in a
thousand acts to which it can hardly be supposed his personal
attention is called, and thus he is enabled to fulfill the duty of
his great department, expressed in the phrase that "he shall take
care that the laws be faithfully executed."
Is this duty limited to the enforcement of acts of Congress or
of treaties of the United States according to their express terms,
or does it include the rights, duties and obligations growing out
of the Constitution itself, our international relations, and all the
protection implied by the nature of the government under the
Constitution? . . .
We cannot doubt the power of the President to take measures
for the protection of a judge of one of the courts of the United
States, who, while in the discharge of the duties of his office, is
threatened with a personal attack which may probably result in
his death, and we think it clear that where this protection is to be
afforded through the civil power, the Department of Justice is
the proper one to set in motion the necessary means of protection.
The correspondence already cited in this opinion between the
marshal of the Northern District of California, and the Attorney-
General, and the district attorney of the United States for that
district, although prescribing no very specific mode of affording
this protection by the Attorney-General, is sufficient, we think,
to warrant the marshal in taking the steps which he did take, in
making the provision which he did make, for the protection and
defence of Mr. Justice Field.
But there is positive law investing the marshals and their
deputies with powers which not only justify what Marshal Neagle
did in this matter, but which imposed it upon him as a duty. In
chapter fourteen of the Revised Statutes of the United States,
which is devoted to the appointment and duties of the district
attorneys, marshals, and clerks of the courts of the United States,
section 788 declares:
"The marshals and their deputies shall have, in each State, the
same powers, in executing the laws of the United States, as the
sheriffs and their deputies in such State may have, by law, in
executing the laws thereof. ' '
If, therefore, a sheriff of the State of California was author-
ized to do in regard to the laws of California what Neagle did,
that is, if he is authorized to keep the peace, to protect a judge
from assault and murder, then Neagle was authorized to do the
same thing in reference to the laws of the United States. . . .
That there is a peace of the United States; that a man assault-
In ee NEAGLE. 33
ing a judge of the United States while in the discharge of his
duties violates that peace; that in such case the marshal of the
United States stands in the same relation to the peace of the
United States which the sheriff of the county does to the peace
of the State of California ; are questions too clear to need argu-
ment to prove them. That it would be the duty of a sheriff, if
one had been present at this assault by Terry upon Judge Field,
to prevent this breach of the peace, to prevent this assault, to
prevent the murder which was contemplated by it, cannot be
doubted. And if, in performing this duty, it became necessary
for the protection of Judge Field, or of himself, to kill Terry,
in a case where, like this, it was evidently a question of the
choice of who should be killed, the assailant and violator of the
law and disturber of the peace, or the unoffending man who was
in his power, there can be no question of the authority of the
sheriff to have killed Terry. So the marshal of the United States,
charged with the duty of protecting and guarding the judge of
the United States court against this special assault upon his per-
son and his life, being present at the critical moment, when
prompt action was necessary, found it to be his duty, a duty
which he had no liberty to refuse to perform, to take the steps
which resulted in Terry's death. This duty was imposed on him
by the section of the Revised Statutes which we have cited, in
connection with the powers conferred by the State of California
upon its peace officers, which become, by this statute, in proper
cases, transferred as duties to the marshals of the United States.
The result at which we have arrived upon this examination is,
that in the protection of the person and the life of Mr. Justice
Field while in the discharge of his official duties, Neagle was au-
thorized to resist the attack of Terry upon him ; that Neagle was
correct in the belief that without prompt action on his part the
assault of Terry upon the judge would have ended in the death
of the latter ; that such being his well-founded belief, he was jus-
tified in taking the life of Terry, as the only means of prevent-
ing the death of the man who was intended to be his victim ; that
in taking the life of Terry, under the circumstances, he was acting
under the authority of the law of the United States, and was jus-
tified in so doing ; and that he is not liable 'to answer in the courts
of California on account of his part in that transaction.
We therefore affirm the judgment of the Circuit Court author-
izing his discharge from the custody of the sheriff of San Joaquin
County.
E. C. L.— 3
34 CASES ON CONSTITUTIONAL LAW.
Mr. Justice Lamae (with whom concurred Mb. Chief Justice
Fuller) dissenting. . . .
Note. — The inherent powers of the Federal Government should be dis-
tinguished from its implied powers. The latter are always derived from an
express grant. The former are involved in the very nature of the government
and the exigencies of the situation. The argument upon which they are
founded was thus expressed in 1785 by James Wilson, afterwards a Justice
of the Supreme Court of the United States :
Though the United States in Congress assembled derive from the
particular States no power, jurisdiction, or right which is not ex-
pressly delegated by the Constitution, it does not then follow that
the United States in Congress have no other powers, jurisdiction, or
rights, than those delegated by the particular States. The United
States have general rights, ganeral powers, and general obligations,
not derived from any particular States, nor from all the particular
States taken separately; but resulting from the union of the whole
. . . . To many purposes the United States are to be considered
as one undivided, independent nation; and as possessed of all the
rights, powers and properties by the law of nations incident to such.
Whenever an object occurs, to the direction of which no particular
State is competent, the management of it must of necessity belong
to the United States in Congress assembled. There are many objects
of this extended nature.
Wilson, Worlcs (Andrews, Ed.), I, 557.
The same idea was expressed by Alexander Hamilton, in his Opinion on
the National Bank which he submitted to President Washington. He said:
It is not denied that there are implied, as well as express powers,
and that the former are as effectually delegated as the latter. And
for the sake of accuracy it shall be mentioned that there is another
class of powers, which may be properly denominated resulting
powers. It will not be doubted that if the United States should
make a conquest of any of the territories of its neighbors, they
would possess sovereign jurisdiction over the conquered territory.
This would be rather a result from the whole mass of the powers of
the government, and from the nature of political society, than a
consequence of either of the powers specially enumerated.
Hamilton, Worhs (Lodge, Ed.), Ill, 184.
With this should be compared the language used by Mr. Justice Bradley
in his concurring opinion in The Legal Tender Cases (1871), 12 Wallace,
457, 555, 556:
The Constitution of the United States established a government,
and not a league, compact or partnership .... As a
government it was invested with aU the attributes of sovereignty
. . . . The United States is not only a government, but it is a
National government, and the only government in this country that
has the character of nationality .... Such being the char-
FONG YUE TING v. UNITED STATES. 35
acter of the General government, it seems to be a self-evident propo-
sition that it is invested with all those inherent and implied powers
which, at the time of adopting the Constitution, were generally
considered to belong to every government as such, and as being
essential to the exercise of its functions.
To the same effect is the language of Mr. Justice MUler in United States
V Kagama (1886), 118 U. S. 375:
The power of Congress to organize territorial governments, and
make laws for their inhabitants, arises not so much from the clause
in the Constitution in regard to disposing of and making rules and
regulations concerning the territory and other property of the
United States, as from the ownership of the country in which its
territories are, and the right of exclusive sovereignty which must
exist in the National Government, and can be found nowhere else.
In a later case, however, when this doctrine was urged upon the Supreme
Court, it was expressly repudiated. See Kansas v. Colorado (1907), 206 U. S.
46. The whole subject is well discussed in WiUoughby, The Constitutional
Law of the United States, I, 49 seq., and in Tiedeman, The Unwritten Con-
stitution of the United States.
FONG YUE TING v. UNITED STATES.
WONG QUAN V. UNITED STATES.
LEE JOE V. UNITED STATES.
Supreme Couet of the United States. 1893.
149 U. S. 698; 37 Lawyers' Ed. 905.
Appeals from the Circuit Court of the United States for the
Southern District of New York.
These were three writs of habeas corpus, granted by the Circuit
Court of the United States for the Southern District of New
YorS, upon petitions of Chinese laborers, arrested and held by
the marshal of the district for not having certificates of residence,
under section 6 of the act of May 5, 1892, c. 60, . . .
Each petition alleged that the petitioner was arrested and de-
tained without due process of law, and that section 6 of the act
of May 5, 1892, was unconstitutional and void. [The section com-
plained of required Chinese laborers within the limits of the
United States at the time of the passage of the act to take out
certificates of residence. Those who neglected to do so within
one year without good cause were made liable to deportation.]
36 CASES ON CONSTITUTIONAL LAW.
In each case, the Circuit Court, after a hearing upon the writ
of habeas corpus and the return of the marshal, dismissed the writ
of habeas corpus, and allowed an appeal of the petitioner to this
court, and admitted him to bail pending the appeal. . . .
Mr. Justice Gray, after stating the facts, delivered the opin-
ion of the court.
The general principles of public law which lie at the founda-
tion of these cases are clearly established by previous judgments
of this court, and by the authorities therein referred to.
In the recent case of Nishimura Ekiu v. United States, 142
U. S. 651, 659, the court, in sustaining the action of the execu-
tive department, putting in force an act of Congress for the ex-
elusion of aliens, said : " It is an accepted maxim of international
law, that every sovereign nation has the power, as inherent in
sovereignty, and essential to self-preservation, to forbid the en-
trance of foreigners within its dominions, or to admit them only
in such cases and upon such conditions as it may see fit to pre-
scribe. In the United States, this power is vested in the national
government, to which the Constitution has committed the entire
control of international relations, in peace as well as in war. It
belongs to the political department of the government, and may
be exercised either through treaties made by the President and
Senate, or through statutes enacted by Congress."
The same views were more fully expounded in the earlier case
of Chae Chan Ping v. United States, 130 U. S. 581, in which the
validity of a former act of Congress, excluding Chinese laborers
from the United States, under the circumstances therein stated,
was afSrmed.
In the elaborate opinion delivered by Mr. Justice Field, in be-
half of the court, it was said : ' ' Those laborers are not citizens of
the United States; they are aliens. That the government of the
United States, through the action of the legislative department,
can exclude aliens from its territory is a proposition which we do
not think open to controversy. Jurisdiction over its own terri-
tory to that extent is an incident of every independent nation.
It is a part of its independence. If it could not exclude aliens,
it would be to that extent subject to the control of another
power." "The United States, in their relation to foreign coun-
tries and their subjects or citizens, are one nation, invested with
powers which belong to independent nations, the exercise of
which can be invoked for the maintenance of its absolute inde-
FONG YUE TING v. UNITED STATES. 37
pendenee and security throughout its entire territory." 130
U. S. 603, 604.
It was also said, repeating the language of Mr. Justice Bradley
in Knox v. Lee, 12 Wall. 457, 555 : "The United States is not
only a government, but it is a national government, and the only
government in this country that has the character of nationality.
It is invested with power over all the foreign relations of the
country, war, peace, and negotiations and intercourse with other
natioiis; all of which are forbidden to the State governments."
130 U. S. 605. And it was added : ' ' For local interests the sev-
eral States of the Union exist; but for international purposes,
embracing our relations with foreign nations, we are but one
people, one nation, one power." 130 U. S. 606.
The court then went on to say : "To preserve its independence,
and give security against foreign aggression and encroachment,
is the highest duty of every nation, and to attain these ends
nearly all other considerations are to be subordinated. It mat-
ters not in what form such aggression and encroachment come,
whether from the foreign nation acting in its national character,
or from vast hordes of its people crowding in upon us. The gov-
ernment, possessing the powers which are to be exercised for pro-
tection and security, is clothed with authority to determine the
occasion on which the powers shall be called forth ; and its deter-
mination, so far as the subjects affected are concerned, is neces-
sarily conclusive upon all its departments and oiScers. If,
therefore, the government of the United States, through its legis-
lative department, considers the presence of foreigners of a dif-
ferent race in this country, who will not assimiliate with us, to
be dangerous to its peace and security, their exclusion is not to
be stayed because at the time there are no actual hostilities with
the nation of which the foreigners are subjects. The existence
of war would render the necessity of the proceeding only more
obvious and pressing. The same necessity, in a less pressing de-
gree, may arise when war does not exist, and the same authority
which adjudges the necessity in one ease must also determine it
in the other. In both cases, its determination is conclusive upon
the judiciary. If the government of the country of which the
foreigners excluded are subjects is dissatisfied with this action,
it can make complaint to the executive head of our government,
or resort to any other measures which, in its judgment, its inter-
ests or dignity may demand ; and there lies its only remedy. The
power of the government to exclude foreigners from the coun-
try, whenever, in its judgment, the public interests require such
38 CASES ON CONSTITUTIONAL LAW.
exclusion, has been asserted in repeated instances, and never de-
nied by the executive or legislative departments." 130 U. S.
606, 607. This statement was supported by many citations from
the diplomatic correspondence of successive Secretaries of State,
collected in Wharton's International Law Digest, § 206.
The right of a nation to expel or deport foreigners, who have
not been naturalized or taken any steps towards becoming citi-
zens of the country, rests upon the same grounds, and is as abso-
lute and unqualified as the right to prohibit and prevent their
entrance into the country.
This is clearly affirmed in dispatches referred to by the court
in Chae Chan Ping's Case. In 1856, Mr. Marcy wrote : "Every
society possesses the undoubted right to determine who shall com-
pose its members, and it is exercised by all nations, both in peace
and war. A memorable example of the exercise of this power in
time of peace was the passage of the alien law of the United
Statesin the year 1798." In 1869, Mr. Pish wrote: "The con-
trol of the people within its limits, and the right to expel from
its territory persons who are dangerous to the peace of the State,
are too clearly within the essential attributes of sovereignty to be
seriously contested." Wharton's International Law Digest,
§ 206 ; 130 U. S. 607. . . .
The right to exclude or to expel all aliens, or any class of
aliens, absolutely or upon certain conditions, in war or in peace,
being an inherent and inalienable right of every sovereign and
independent nation, essential to its safety, its independence, and
its welfare, the question now before the court is whether the
manner in which Congress has exercised this right in sections 6
and 7 of the act of 1892 is consistent with the Constitution.
The United States are a sovereign and independent nation,
and are vested by the Constitution with the entire control of in-
ternational relations, and with all the powers of government nec-
essary to maintain that control and to make it effective. The
only government of this country, which other nations recognize
or treat with, is the government of the Union; and the only
American flag known throughout the world is the flag of the
United States.
The Constitution of the United States speaks with no uncertain
sound upon this subject. That instrument, established by the
people of the United States as the fundamental law of the land,
has conferred upon the President the executive power; has made
him the commander-in-chief of the army and navy; has author-
ized him, by and with the consent of the Senate, to make treaties,
FONa YUE TING v. UNITED STATES. 39
and to appoint ambassadors, public ministers, and consuls; and
has made it his duty to take care that the laws be faithfully exe-
cuted. The Constitution has granted to Congress the power to
regulate commerce with foreign nations, including the entrance
of ships, the importation of goods, and the bringing of persons
into the ports of the United States ; to establish a uniform rule of
naturalization; to define and punish piracies and felonies com-
mitted on the high seas, and offences against the law of nations ;
to declare war, grant letters of marque and reprisal, and make
rules concerning captures on land and water ; to raise and support
armies, to provide and maintain a navy, and to make rules for the
government and regulation of the land and naval forces; and
to make all laws necessary and proper for carrying into execu-
tion these powers, and all other powers vested by the Constitu-
tion in the government of the United States, or in any depart-
ment or officer thereof. And the several States are expressly for-
bidden to enter into any treaty, alliance, or confederation; to
grant letters of marque and reprisal ; to enter into any agreement
or compact with another State, or with a foreign power; or to
engage in war, unless actually invaded, or in such imminent
danger as will not admit of delay. . . .
The power to exclude or to expel aliens, being a power affecting
international relations, is vested in the political departments of
the government, and is to be regulated by treaty or by act of
Congress, and to be executed by the executive authority accord-
ing to the regulations so established, except so far as the judicial
department has been authorized by treaty or by statute, or is
required by the paramount law of the Constitution, to inter-
vene. . . .
Congress, having the right, as it may see fit, to expel aliens of a
particular class, or to permit them to remain, has undoubtedly the
right to provide a system of registration and identification of the
members of that class within the country, and to take all proper
means to carry out the system which it provides. . . .
In our jurisprudence, it is well settled that the provisions of an
act of Congress, passed in the exercise of its constitutional author-
ity, on this, as on any other subject, if clear and explicit, must be
upheld by the courts even in contravention of express stipulations
in an earlier treaty. As was said by this court in Chae Chan
Ping's Case, following previous decisions: "The treaties were of
no greater legal obligation than the act of Congress. By the Con-
stitution, laws made in pursuance thereof and treaties made under
the authority of the United States are both declared to be the
40 CASES ON CONSTITUTIONAL LAW.
supreme law of the land, and no paramount authority is given to
one over the other. A treaty, it is true, is in its nature a eon-
tract between nations, and is often merely promissory in its char-
acter, requiring legislation to carry its stipulations into effect.
Such legislation will be open to future repeal or amendment. If
the treaty operates by its own force, and relates to a subject
within the power of Congress, it can be deemed in that particular
only the equivalent of a legislative act, to be repealed or modified
at the pleasure of Congress. In either case, the last expression of
the sovereign will must control. " " So far as a treaty made by the
United States with any foreign nation can become the subject
of judicial cognizance in the courts of this country, it is subject
to such acts as Congress may pass for its enforcement, modifica-
tion, or repeal." 130 U. S. 600. See also Foster v. Neilson, 2
Pet. 253, 314; Edye v. Robertson, 112 U. S. 580, 597-599 ; Whit-
ney V. Eobertson, 124 U. S. 190. . . .
The question whether, and upon what conditions, these aliens
shall be permitted to remain within the United States being one
to be determined by the political departments of the government,
the judicial department cannot properly express an opinion upon
the wisdom, the policy or the justice of the measures enacted by
Congress in the exercise of the powers confided to it by the Con-
stitution over this subject.
Upon careful consideration of the subject, the only conclusion
which appears to us to be consistent with the principles of inter-
national law, with the Constitution and laws of the United States,
and with the previous decisions of this court, is that in each of
these cases the judgment of the Circuit Court, dismissing the writ
of habeas corpus, is right and must be Affirmed.
[Mr. Chief Justice Fuller, Mb. Justice Beewer, and Mr.
Justice Field delivered dissenting opinions.]
Note. — On a similar state of facts involving the right of an alien to enter
the colony of Victoria, the Privy Council of Great Britain reached the same
result. Musgrove v. Chun Teeong Toy, L. E. 1891, Appeal Cases, 272; 60
L. J. P. C. 28. In the United States, Congress may legislate for the ex-
elusion of aliens not only in the exercise of the inherent authority of the
Federal Government, but also by virtue of its delegated authority to regulate
foreign commerce. Nishimura Ekiu v. United States (1892), 142 U. S. 651.
The inherent right to exclude aliens has found many applications, all of
which rest exclusively within the discretion of the political departments of
the government. Among the first classes excluded were contract laborers,
United States v. Laws (1896), 163 U. S. 258, but the restriction has been
extended to anarchists. United States v. Williams (1904), 194 U. S. 279, to
FONG YUE TING v. UNITED STATES. 41
persons convicted of crime, United States v. "Williams (1913), 203 Fed. 155,
to paupers or persons liable to become a public charge, Japanese Immigrant
Cases (1903), 189 U. S. 86, to persons assisted by others to come to the
United States, United States v. Kodgers (1911), 191 Fed. 970, and to
prostitutes, United States v. Bitty (1908), 208 U. S. 393, Low Wah Suey v.
Backus (1912), 225 U. S. 460, Lapina v. WUliams (1914), 232 U. S. 78. The
right to exclude aliens involves the right to control the privilege of transit
through the United States, Fok Yung Yo v. United States (1902), 185
U. S. 296.
The most important measures adopted for the exclusion of aliens are those
directed to the exclusion of Chinese "laborers." This word has been held
to include a lodging-house keeper, In re Tenny (1898), 86 Fed. 303, a pros-
titute, Lee Ah Yin v. United States (1902), 116 Fed. 614, a gambler, United
States V. Ah Fawn (1893), 57 Fed. 591, a merchant who worked in a laundry,
United States v. Yong Yew (1897), 83 Fed. 832, and a tenant of a farm,
Lew Quen Wo v. United States (1911), 184 Fed. 685.
The right to exclude aliens involves the right to expel, Tiaco v. Forbes
(1913), 228 U. S. 549.
While the abstract right to exclude or expel aliens is admitted, the duties
attendant upon membership in the family of nations must not be overlooked.
The political and commercial relations of nations are so close and the
privilege of entrance ajid residence has been so freely accorded that an
arbirtrary exclusion or expulsion may give rise to a diplomatic claim. Bonfils,
Manuel de Droit International Public, §§ 441, 442.
For a state to exclude all foreigners would be to withdraw from
the brotherhood of civilized peoples ; to exclude any without reason-
able or at least plausible cause, is regarded as so vexatious and
oppressive that a government is thought to have the right of inter-
fering in favor of its subjects in cases where sufficient cause does
not, in its judgment, exist.
Hall, International Law, 223.
The expulsion of aliens even more than their exclusion imposes upon the
state the duty of showing circumstances which justify its act. The pre-
vailing practice was well stated by Gresham, Secretary of State, in these
words:
The just rule would seem to be that no nation can single out for
expulsion from its territory any individual citizen of a friendly
nation without special and suflScient grounds therefor. And even
when such grounds exist the exclusion should be effected with as
little injury to the individual and his property interest as may be
compatible with the safety and interests of the country which expels
him.
Moore, Digest of International Law, IV, 84.
The whole subject is admirably treated in Bouv6, A Treatise on the Laws
Governing the Exclusion and Expulsion of Aliens in the United States.
42 CASES ON CONSTITUTIONAL LAW.
Section 3. The Relations op the Federal Gov-
ernment AND THE States.
CRANDALL v. STATE OF NEVADA.
Supreme Court of the United States. 1867.
6 Wallace, 35; 18 Lawyers' Ed. 745.
Error to the Supreme Court of Nevada.
In 1865, the legislature of Nevada enacted that "there shall
be levied and collected a capitation tax of one dollar upon every
person leaving the State by any railroad, stage-coach, or other
vehicle engaged or employed in the business of transporting pas-
sengers for hire," and that the proprietors, owners, and corpora-
tions so engaged should pay the said tax of one dollar for each
and every person so conveyed or transported from the State.
For the purpose of collecting the tax, another section required
from persons engaged in such business, or their agents, a report
every month, under oath, of the number of passengers so trans-
ported, and the payment of the tax to the sheriff or other proper
officers.
"With the statute in existence, Crandall, who was the agent of a
stage company engaged in carrying passengers through the State
of Nevada, was arrested for refusing to report the number of
passengers that had been carried by the coaches of his company,
and for refusing to pay the tax of one dollar imposed on each
passenger by the law of that State. He pleaded that the law of
the State under which he was prosecuted was void, because it was
in conflict with the Constitution of the United States; and his
plea being overruled, the case came into the Supreme Court of
the State. That court — considering that the tax laid was not an
impost on "exports," nor an interference with the power of
Congress "to regulate commerce among the several States" —
decided against the right thus set up under the Federal Constitu-
tion. Its judgment was now here for review. . . .
Mb. Justice Miller delivered the opinion of the court.
The question for the first time presented to the court by this
record is one of importance. The proposition to be considered
is the right of a State to levy a tax upon persons residing in the
State who may wish to get out of it, and upon persons not resid-
ing in it who may have occasion to pass through it. . . .
Having determined tbftt the statute of Nevada imposes a tax
CRANDALL V. STATE OP NEVADA. 43
upon the passenger for the privilege of leaving the State, or pass-
ing through it by the ordinary mode of passenger travel, we
proceed to inquire if it is for that reason in conflict with the Con-
stitution of the United States.
In the argument of the counsel for the defendant in error, and
in the opinion of the Supreme Court of Nevada, which is found
in the record, it is assumed that this question must be decided
by an exclusive reference to two provisions of the Constitution,
namely: that which forbids any State, without the consent of
Congress, to lay any imposts or duties on imports or exports, and
that which confers on Congress the power to regulate commerce
with foreign nations and among the several States. . . .
But we do not concede that the question before us is to be de-
termined by the two clauses of the Constitution which we have
been examining.
The people of these United States constitute one nation. They
have a government in which all of them are deeply interested.
This government has necessarily a capital established by law,
where its principal operations are conducted. Here sits its legis-
lature, composed of senators and representatives, from the States
and from the people of the States. Here resides the President,
directing through thousands of agents, the execution of the laws
over all this vast country. Here is the seat of the supreme judi-
cial power of the nation, to which all its citizens have a right to
resort to claim justice at its hands. Here are the great executive
departments, administering the ofHces of the mails, of the public
lands, of the collection and distribution of the public revenues,
and of our foreign relations. These are all established and con-
ducted under the admitted powers of the Federal government.
That government has a right to call to this point any or all of its
citizens to aid in its service, as members of the Congress, of the
courts, of the executive departments, and to fill all its other
offices ; and this right cannot be made to depend upon the pleas-
ure of a State over whose territory they must pass to reach the
point where these services must be rendered. The government,
also, has its offices of secondary importance in all other parts of
the country. On the sea-coasts and on the rivers it has its ports
of entry. In the interior it has its land offices, its revenue offices,
and its sub-treasuries. In all these it demands the services of its
citizens, and is entitled to bring them to those points from all
quarters of the nation, and no power can exist in a State to
obstruct this right that would not enable it to defeat the purposes
for which the government was established.
44 CASES ON CONSTITUTIONAL LAW.
The Federal power has a right to declare and prosecute wars,
and, as a necessary incident, to raise and transport troops through
and over the territory of any State of the Union.
If this right is dependent in any sense, however limited, upon
the pleasure of a State, the government itself may be overthrown
by an obstruction to its exercise. Much the largest part of the
transportation of troops during the late rebellion was by rail-
roads, and largely through States whose people were hostile to the
Union. If the tax levied by Nevada on railroad passengers had
been the law of Tennessee, enlarged to meet the wishes of her
people, the treasury of the United States could not have paid the
tax necessary to enable its armies to pass through her territory.
But if the government has these rights on her own account, the
citizen also has correlative rights. He has the right to come to
the seat of government to assert any claim he may have upon that
government, or to transact any business he may have with it. To
seek its protection, to share its offices, to engage in administering
its functions. He has a right to free access to its sea-ports,
through which all the operations of foreign trade and commerce
are conducted, to the sub-treasuries, the land offices, the revenue
offices, and the courts of justice in the several States, and this
right is in its nature independent of the will of any State over
whose soil he must pass in the exercise of it.
The views here advanced are neither novel or unsupported
by authority. The question of the taxing power of the States, ,as
its exercise has affected the functions of the Federal government,
has been repeatedly considered by this court, and the right of the
States in this mode to impede or embarrass the constitutional
operations of that government, or the rights which its citizens
hold under it, has been uniformly denied. . . . [Here fol-
lows a discussion of MeCuUoch v. Maryland, 4 Wheat. 316;
Brown v. Maryland, 12 Wheat. 419 ; Weston v. Charleston, 2 Pet.
449.]
In all these cases, the opponents of the taxes levied by the
States were able to place their opposition on no express provision
of the Constitution, except in that of Brown v. Maryland. But in
all the other eases, and in that case also, the court distinctly
placed the invalidity of the State taxes on the ground that they
interfered with an authority of the Federal government, which
was itself only to be sustained as necessary and proper to the exer-
cise of some other power expressly granted.
In The Passenger Cases, to which reference 'has already been
made. Justice Grier, with whom Justice Catron concurred, makea
CRANDALL v. STATE OF NEVADA. 45
this one of the four propositions on which they held the tax void
in those eases. Judge Wayne expresses his assent to Judge
Grier's views; and perhaps this ground received the concurrence
of more of the members of the court who constituted the major-
ity than any other. But the principles here laid down may be
found more clearly stated in the dissenting opinion of the Chief
Justice in those cases, and with more direct pertinency to the case
now before us than anywhere else. After expressing his views
fully in favor of the validity of the tax, which he said had ex-
clusive reference to foreigners, so far as those cases were con-
cerned, he proceeds to say, for the purpose of preventing mis-
apprehension, that so far as the tax affected American citizens it
could not in his opinion be maintained. He then adds : ' ' Living
as we do under a common government, charged with the great
concerns of the whole Union, every citizen of the United States
from the most remote States or territories, is entitled to free
access, not only to the principal departments established at "Wash-
ington, but also to its judicial tribunals and public ofSces in every
State of the Union. . . . For all the great purposes for which
the Federal government was formed we are one people, with one
common country. We are all citizens of the United States, and
as members of the same community must have the right to pass
and repass through every part of it without interruption, as
freely as in our own States. And a tax imposed by a State, for
entering its territories or harbors, is inconsistent with the rights
which belong to citizens of other States as members of the Union,
and with the objects which that Union was intended to attain.
Such a power in the States could produce nothing but discord
and mutual irritation, and they very clearly do not possess it."
Although these remarks are found in a dissenting opinion, they
do not relate to the matter on which the dissent was founded.
They accord with the inferences which we have already drawn
from the Constitution itself, and from the decisions of this court
in exposition of that instrument.
Those principles, as we have already stated them in this opin-
ion, must govern the present ease. . . .
Judgment reversed, and the case remanded to the Supreme
Court of the State of Nevada, with directions to discharge the
plaintiff in error from custody.
Mr. Justice Cliftord. I agree that the State law in question
is unconstitutional and void, but I am not able to concur in the
principal reasons assigned in the opinion of the court in sup-
46 CASES ON CONSTITUTIONAL LAW.
port of that conclusion. ... I hold that the act of the State
legislature is inconsistent with the power conferred upon Con-
gress to regulate commerce among the several States, and I think
the judgment of the court should have been placed exclusively
upon that ground. . . . The Chief Justice . . . con-
curs in the views I have expressed.
TEXAS v. WHITE et al.
SUPEEME CODBT OF THE UNITED STATES. 1868.
7 WaUace, 700; 19 Lawyer*' Ed. 227.
The Chief Justice delivered the opinion of the court.
This is an original suit in this court, in which the State of
Texas, claiming certain bonds of the United States as her prop-
erty, asks an injunction to restrain the defendants from receiv-
ing payment from the National government, and to compel the
surrender of the bonds to the State. . . .
It is not to be questioned that this court has original jurisdic-
tion of suits by States against citizens of other States, or that the
States entitled to invoke this jurisdiction must be States of the
Union. But, it is equally clear that no such jurisdiction has been
conferred upon this court of suits by any other political com-
munities than such States.
If, therefore, it is true that the State of Texas was not at the
time of filing this bill, or is not now, one of the United States, we
have no jurisdiction of this suit, and it is our duty to dismiss
it. . . .
It [the word state] describes sometimes a people or com-
munity of individuals united more or less closely in political rela-
tions, inhabiting temporarily or permanently the same country ;
often it denotes only the country or territorial region, inhabited
by such a community ; not unf requently it is applied to the gov-
ernment under which the people live ; at other times it represents
the combined idea of people, territory, and government. . . .
In the Constitution the term state most frequently expresses
the combined idea just noticed, of people, territory, and govern-
ment. A state, in the ordinary sense of the Constitution, is a
political community of free citizens, occupying a territory of
defined boundaries, and organized under a government sanctioned
and limited by a written constitution, and established by the con-
sent of the governed. It is the union of such states, under a com-
TEXAS V. WHITE et al. 47
mon constitution, which forms the distinct and greater political
unit, which that Constitution designates as the United States, and
makes of the people and states which compose it one people and
one country. . . .
In all respects, so far as the object could be accomplished by
ordinances of the convention, by acts of the legislature, and by
votes of the citizens, the relations of Texas to the Union were
broken up, and new relations to a new government were estab-
lished for them.
The position thus assumed could only be maintained by arms,
and Texas accordingly took part, with the other Confederate
States, in the war of the rebellion, which these events made in-
evitable. During the whole of that war there was no governor,
or judge, or any other State ofScer in Texas, who recognized the
National authority. Nor was any officer of the United States per-
mitted to exercise any authority whatever under the National
government within the limits of the State except under the
immediate protection of the National military forces.
Did Texas, in consequence of these acts, cease to be a State?
Or^ if not, did the State cease to be a member of the Union ?
It is needless to discuss, at length, the question whether the
right of a State to withdraw from the Union for any cause, re-
garded by herself as sufficient, is consistent with the Constitu-
tion of the United States.
The Union of the States never was a purely artificial and arbi-
trary relation. It began among the Colonies, and grew out of
common origin, mutual sympathies, kindred principles, similar
interests, and geographical relations. It was confirmed and
strengthened by the necessities of war, and received definite form,
and character, and sanction from the Articles of Confederation.
By these the Union was solemnly declared to "be perpetual."
And when these Articles were found to be inadequate to the
exigencies of the country, the Constitution was ordained "to form
a more perfect Union. " It is difficult to convey the idea of indis-
soluble unity more clearly than by these words. What can be
indissoluble if a perpetual Union, made more perfect, is not ?
But tlie perpetuity and indissolubility of the Union, by no
means implies the loss of distinct and individual existence, or of
the right of self-government by the States. Under the Articles
of Confederation, each State retained its sovereignty, freedom,
and independence, and every power, jurisdiction, and right not
expressly delegated to the United States. Under the Constitution,
though the powers of the States were much restricted, still, all
48 CASES ON CONSTITUTIONAL LAW.
powers not delegated to the United States, nor prohibited to the
States, are reserved to the States respectively, or to the people.
And we have already had occasion to remark at this term, that
"the people of each State compose a State, having its own gov-
ernment, and endowed with all the functions essential to separate
and independent existence," and that "without the States in
union, there could be no such political body as the United States. ' '
County of Lane v. Oregon, 7 Wallace, 76. Not only therefore can
there be no loss of separate and independent autonomy to the
States, through their union under the Constitution, but it may
be not unreasonably said that the preservation of the States,
and the maintenance of their governments, are as much within
the design and care of the Constitution as the preservation of
the Union and the maintenance of the National government.
The Constitution, in all of its provisions, looks to an indestruc-
tible Union, composed of indestructible States.
When, therefore, Texas became one of the United States, she
entered into an indissoluble relation. All the obligations of per-
petual union and all the guarantees of republican government in
the Union, attached at once to the State. The act which con-
summated her admission into the Union was something more than
a compact; it was the incorporation of a new member into the
political body. And it was final. The union between Texas and
the other States was as complete, as perpetual, and as indissoluble
as the union between the original States. There was no place for
reconsideration, or revocation, except through revolution, or
through consent of the States.
Considered therefore as transactions under the Constitution,
the ordinance of secession, adopted by the convention and rati-
fied by a majority of the citizens of Texas, and all the acts of
her legislature intended to give effect to that ordinance, were
absolutely null. They were utterly without operation in law. The
obligations of the State, as a member of the Union, and of every
citizen of the State, as a citizen of the United States, remained
perfect and unimpaired. It certainly follows that the State did
not cease to be a State, nor her citizens to be citizens of the Union.
If this were otherwise, the State must have become foreign, and
her citizens foreigners. The war must have ceased to be a war
for the suppression of rebellion, and must have become a war for
conquest and subjugation.
Our conclusion therefore is, that Texas continued to be a State,
and a State of the Union, notwithstanding the transactions to
which we have referred. And this conclusion, in our judgment.
TEXAS V. WHITE et al. 49
is not in conflict with any act or declaration of any department
of the National government, but entirely in accordance with the
whole series of such acts and declarations since the first outbreak
of the rebellion.
But in order to the exercise, by a State, of the right to sue in
this court, there needs to be a State government, competent to
represent the State in its relations with the National government,
so far at least as the institution and prosecution of a suit is con-
cerned.
And it is by no means a logical conclusion, from the premises
which we have endeavored to establish, that the governmental
relations of Texas to the Union remained unaltered. Obligations
often remain unimpaired, while relations are greatly changed.
The obligations of allegiance to the State, and of obedience to her
laws, subject to the Constitution of the United States, are binding
upon all citizens, whether faithful or unfaithful to them ; but the
relations which subsist while these obligations are performed, are
essentially different from those which arise when they are disre-
garded and set at nought. And the same must necessarily be
true of the obligations and relations of States and citizens to the
Union. No one has been bold enough to contend that, while Texas
was controlled by a government hostile to the United States, and
in affiliation with a hostile confederation, waging war upon the
United States, senators chosen by her legislature, or representa-
tives elected by her citizens, were entitled to seats in Congress ;
or that any suit, instituted in her name, could be entertained in
this court. All admit that, during this condition of civil war,
the rights of the State as a member, and her people as citizens of
the Union, were suspended. The government and the citizens of
the State, refusing to recognize their constitutional obligations,
assumed the character of enemies, and incurred the consequences
of rebellion.
These new relations imposed new duties upon the United
States. The first was that of suppressing the rebellion. The next
was that of re-establishing the broken relations of the State with
the Union. The first of these duties having been performed, the
next necessarily engaged the attention of the National govern-
ment.
The authority for the performance of the first had been found
in the power to suppress insurrection and carry on war ; for the
performance of the second, authority was derived from the obliga-
tion of the United States to guarantee to every State in the Union
a republican form of government. The latter, indeed, in the case
E. C. I/.— 4
50 CASES ON CONSTITUTIONAL LAW.
of a rebellion which involves the government of a State, and f oi"
the time excludes the National authority from its limits, seems to
be a necessary complement to the former.
Of this, the case of Texas furnishes a striking illustration.
"When the war closed there was no government in the State except
that which had been organized for the purpose of waging war
against the United States. That government immediately disap-
peared. The chief functionaries left the State. Many of the
subordinate officials followed their example. Legal responsibili-
ties were annulled or greatly impaired. It was inevitable that
great confusion should prevail. If order was maintained, it was
where the good sense and virtue of the citizens gave support to
local acting magistrates, -or supplied more directly the needful
restraints.
A great social change increased the difficulty of the situation.
Slaves, in the insurgent States, with certain local exceptions, had
been declared free by the Proclamation of Emancipation; and
whatever questions might be made as to the effect of that act,
under the Constitution, it was clear, from the beginning, that its
practical operation, in connection with legislative acts of like
tendency, must be complete enfranchisement. Wherever the
National forces obtained control, the slaves became freemen. Sup-
port to the acts of Congress and the proclamation of the President,
concerning slaves, was made a condition of amnesty (13 Stat, at
Large, 737), by President Lincoln, in December, 1863, and by
President Johnson, in May, 1865 (lb., 758). And emancipation
was confirmed, rather than ordained, in the insurgent States, by
the amendment to the Constitution prohibiting slavery through-
out the Union, which was proposed by Congress in February,
1865, and ratified, before the close of the following autumn, by
the requisite three-fourths of the States (lb., 774-5).
The new freemen necessarily became part of the people, and
the people still constituted the State ; for States, like individuals,
retain their identity, though changed to some extent in their con-
stituent elements. And it was the State, thus constituted, which
was now entitled to the benefit of the constitutional guarantee.
There being then no government in Texas in constitutional re-
lations with the Union, it became the duty of the United States to
provide for the restoration of such a government. But the resto-
ration of the government which existed before the rebellion,
without a new election of officers, was obviously impossible ; and
before any such election could be properly held, it was necessary
that the old constitution should receive such amendments as
TEXAS V. WHITE et al. 51
would conform its provisions to the new conditions created by
emancipation, and afford adequate security to the people of the
State. , . .
It is not important to review, at length, the measures which
have been taken, under this power, by the executive and legis-
lative departments of the National government. It is proper,
however, to observe that almost immediately after the cessation
of organized hostilities, and while the war yet smouldered in
Texas, the President of the United States issued his proclama-
tion appointing a provisional governor for the State, and provid-
ing for the assembling of a convention, with a view to the re-
establishment of a republican government, under an amended
constitution, and to the restoration of the State to her proper
constitutional relations. A convention was accordingly assem-
bled, the constitution amended, elections held, and a State gov-
ernment, acknowledging its obligations to the Union, established.
Whether the action then taken was, in all respects, warranted
by the Constitution, it is not now necessary to determine. The
power exercised by the President was supposed, doubtless, to be
derived from his constitutional functions, as commander-in-chief ;
and, so long as the war continued, it cannot be denied that he
might institute temporary government within insurgent dis-
tricts, occupied by the National forces, or take measures, in any
State, for the restoration of State government faithful to the
Union, employing, however, in such efforts, only such means
and agents as were authorized by constitutional laws.
But, the power to carry into effect the clause of guarantee is
primarily a legislative power, and resides in Congress. "Under
the fourth article of the Constitution, it rests with Congress to
decide what government is the established one in a State. For, as
the United States guarantee to each State a republican govern-
ment. Congress must necessarily decide what government is es-
tablished in the State, before it can determine whether it is repub-
lican or not. ' ' Luther v. Borden, 7 Howard, 42.
This is the language of the late Chief Justice, speaking for this
court, in a ease from Ehode Island, arising from the organization
of opposing governments in that State. And, we think that the
principle sanctioned by it may be applied, with even more pro-
priety, to the case of a State deprived of all rightful government,
by revolutionary violence; though necessarily limited to cases
where the rightful government is thus subverted, or in imminent
danger of being overthrown by an opposing government, set up
by force within the State,
52 CASES ON CONSTITUTIONAL LAW.
The action of the President must, therefore, be considered as
provisional, and, in that light, it seems to have been regarded by
Congress. It was taken after the term of the 38th Congress had
expired. The 39th Congress, which assembled in December, 1865,
followed by the 40th Congress, which met in March, 1867, pro-
ceeded, after long deliberation, to adopt various measures for
reorganization and restoration. These measures were embodied in
proposed amendments to the Constitution, and in the acts known
as the Reconstruction Acts, which have been so far carried into
effect, that a majority of the States which were engaged in the
rebellion have been restored to their constitutional relations,
under forms of government, adjudged to be republican by Con-
gress, through the admission of their ' ' Senators and Representa-
tives into the councils of the Union."
Nothing in the case before us requires the court to pronounce
judgment upon the constitutionality of any particular provision
of these acts.
But it is important to observe that these acts themselves show
that the governments, which had been established and had been
in actual operation under executive direction, were recognized
by Congress as provisional, as existing, and as capable of con-
tinuance. . . .
What has thus been said generally describes, with sufScient
accuracy, the situation of Texas. A provisional governor of the
State was appointed by the President in 1865 ; in 1866 a governor
was elected by the people under the constitution of that year ; at
a subsequent date a governor was appointed by the commander
of the district. Each of the three exercised executive functions
and actually represented the State in the executive department.
In the case before us each has given his sanction to the prose-
cution of the suit, and we find no difficulty, without investigating
the legal title of either to the executive office, in holding that the
sanction thus given sufficiently warranted the action of the solici-
tor and counsel in behalf of the State. The necessary conclusion
is that the suit was instituted and is prosecuted by competent
authority.
The question of jurisdiction being thus disposed of, we proceed
to the consideration of the merits as presented by the pleadings
and the evidence. . . .
On the whole case, therefore, our conclusion is that the State
of Texas is entitled to the relief sought by her bill, and a decree
must be made accordingly.
TARBLE'SCASE. 53
[Mr. Justice Grier, Mr. Justice Swayne, and Mr. Justice
Miller dissented.]
Note. — On the status of the Confederacy and its members during the
Civil War and the legal consequences of their acts, see Thorington v. Smith
(1868), 8 Wall. 1; MUler v. United States (1870), 11 Wall. 268; Delmaa v.
Insurance Co. (1872), 14 Wall. 661; Gunn v. Barry (1873), 15 Wall. 610;
Horn V. Lockhart (1874), 17 Wall. 570; Sprott v. United States (1874), 20
Wall. 459; WUliams v. Bruffy (1877), 96 U. S. 176; Bewing v. Perdicaries
(1877), 96 U. S. 193; Keith v. Clark (1878), 97 U. S. 454; Ford v. Surget
(1878), 97 U. S. 594; Lamar v. Micou (1884), 112 U. S. 452; Baldy v.
Hunter (1898), 171 U. S. 388; Cakes v. United States (1898), 174 U. S. 778.
As to the equality of the States in the Union, see Pollard's Leasee v.
Hagan (1845), 3 Howard 212; Permoli v. First Municipality (1845), 3
Howard 589; Strader v. Graham (1850), 10 Howard 82; Escanaba Co. v.
Chicago (1882), 107 U. S. 678; Van Brocklin v. Tennessee (1886), 117
U. S. 151; Huse v. Glover (1886), 119 U. S. 543; Sands v. Manistee Eiver
Improvement Co. (1887), 123 U. S. 288; WOlamette Iron Bridge Co. v.
Hatch (1888), 125 U. S. 1; Boyd v. Thayer (1892), 143 U. S. 135; Ward v.
Eace Horse (1896), 163 U. S. 504; Bolln v. Nebraska (1900), 176 U. 8. 83;
Stearns v. Minnesota (1900), 179 U. S. 223; Coyle v. Oklahoma (1911), 221
U. S. 559.
TARBLE'S CASE.
Supreme Court op the United States. 1871.
13 Wallace, 397; 20 Lawyers' Ed. 597.
Error to the Supreme Court of Wisconsin.
Mr. Justice Field . . . delivered the opinion of the
court. . . .
The important question is presented by this ease, whether a
State court commissioner has jurisdiction, upon habeas corpus, to
inquire into the validity of the enlistment of soldiers into the
military service of the United States, and to discharge them from
such service when, in his judgment, their enlistment has not been
made in conformity with the laws of the United States. The
question presented may be more generally stated thus : Whether
any judicial officer of a State has jurisdiction to issue a writ of
habeas corpus, or to continue proceedings under the writ when
issued, for the discharge of a person held under the authority,
or claim and color of the authority, of the United States, by an
officer of that government. For it is evident, if such jurisdiction
may be exercised by any judicial officer of a State, it may be exer-
cised by the court commissioner within the county for which he
is appointed ; and if it may be exercised with reference to soldiers
detained in the military service of the United States, whose enlist-
54 CASES ON CONSTITUTIONAL LAW.
ment is alleged to have been illegally made, it may be exercised
with reference to persons employed in any other department of
the public service when their illegal detention is asserted. It
may be exercised in all cases where parties are held under the
authority of the United States, whenever the invalidity of the
exercise of that authority is affirmed. The jurisdiction, if it
exists at all, can only be limited in its appUeation by the legis-
lative power of the State. It may even reach to parties impris-
oned under sentence of the National courts, after regular indict-
ment, trial, and conviction, for offenses against the laws of the
United States. As we read the opinion of the Supreme Court of
Wisconsin in this case, this is the claim of authority asserted by
that tribunal for itself and for the judicial officers of that State.
It does, indeed, disclaim any right of either to interfere with par-
ties in custody, under judicial sentence, when the National court
pronouncing sentence had jurisdiction to try and punish the
offenders, but it asserts, at the same time, for itself and for each
of those officers, the right to determine, upon habeas corpus, in
all cases, whether that court ever had such jurisdiction. . . .
It is in the consideration of this distinct and independent char-
acter of the government of the United States, from that of the
government of the several States, that the solution of the question
presented in this case, and in similar cases, must be found. There
are within tlie territorial limits of each State two governments,
restricted in their spheres of action, but independent of each
other, and supreme within their respective spheres. Each has its
separate departments; each has its distinct laws, and each has
its own tribunals for their enforcement. Neither government can
intrude within the jurisdiction, or authorize any interference
therein by its judicial officers with the action of the other. The
two governments in each State stand in their respective spheres
of action in the same independent relation to each other, except
in one particular, that they would if their authority embraced
distinct territories. That particular consists in the supremacy
of the authority of the United States when any conflict arises
between the two governments. The Constitution and the laws
passed in pursuance of it, are declared by the Constitution itself
to be the supreme law of the land, and the judges of every State
are bound thereby, ' ' anything in the constitution or laws of any
State to the contrary notwithstanding." Whenever, therefore,
any conflict arises between the enactments of the two sovereign-
ties, or in the enforcement of their asserted authorities, those of
the National government must have supremacy until the validity
TARBLE'SCASE. 55
of the different enactments axid authorities can be finally deter-
mined by the tribunals of the United States. This temporary
supremacy until judicial decision by the National tribunals, and
the ultimate determination of the conflict by such decision, are
essential to the preservation of order and peace, and the avoid-
ance of forcible collision between the two governments. "The
Constitution," as said by Mr. Chief Justice Taney, "was not
framed merely to guard the States against danger from abroad,
but chiefly to ^ecure union and harmony at home; and to ac-
complish this end it was deemed necessary, when the Constitution
was framed, that many of the rights of sovereignty which the
States then possessed should be ceded to the General government ;
and that in the sphere of action assigned to it, it should be su-
preme and strong enough to execute its own laws by its own
tribunals, without interruption from a State, or from State
authorities." And the judicial power conferred extends to all
cases arising under the Constitution, and thus embraces every
legislative act of Congress, whether passed in pursuance of it,
or in disregard of its provisions. The Constitution is under the
view of the tribunals of the United States when any act of Con-
gress is brought before them for consideration.
Such being the distinct and independent character of the two
governments, within their respective spheres of action, it follows
that neither can intrude with its judicial process into the domain
of the other, except so far as such intrusion may be necessary on
the part of the National government to preserve its rightful
supremacy in cases of conflict of authority. In their laws, and
mode of enforcement, neither is responsible to the other. How
their respective laws shall be enacted ; how they shall be carried
into execution ; and in what tribunals, or by what officers ; and
how much discretion, or whether any at all shall be vested in
their officers, are matters subject to their own control, and in the
regulation of which neither can interfere with the other.
Now, among the powers assigned to the National government,
is the power "to raise and support armies," and the power "to
provide for the government and regulation of the land and naval
forces." The execution of these powers falls within the line of
its duties; and its control over the subject is plenary and ex-
clusive. It can determine, without question from any State
authority, how the armies shall be raised, whether by voluntary
enlistment or forced draft, the age at which the soldier shall be
received, and the period for which he shall be taken, the com-
pensation he shall be allowed, and the eervice to which he shall
56 CASES ON CONSTITUTIONAL LAW.
be assigned. And it can provide the rules for the government
and regulation of the forces after they are raised, definfe what
shall constitute military offenses, and prescribe their punishment.
No interference v?ith the execution of this power of the National
government in the formation, organization, and government of
its armies by any State officials could be permitted without
greatly impairing the efficiency, if it did not utterly destroy, this
branch of the public service. Probably in every county and city
in the several States there are one or more officers authorized by
law to issue writs of habeas corpus on behalf of persons alleged
to be illegally restrained of their liberty ; and if soldiers could be
taken from the army of the United States, and the validity of
their enlistment inquired into by any one of these officers, such
proceeding could be taken by all of them, and no movement could
be made by the National troops without their commanders being
subjected to constant annoyance and embarrassment from this
source. The experience of the late rebellion has shown us that,
in times of great popular excitement, there may be found in
every State large numbers ready and anxious to embarrass the
operations of the government, and easily persuaded to believe
every step taken for the enforcement of its authority illegal and
void. Power to issue writs of habeas corpus for the discharge of
soldiers in the military service, in the hands of parties thus dis-
posed, might be used, and often would be used, to the great detri-
ment of the public service. In many exigencies the measures of
the National government might in this way be entirely bereft of
their efficacy and value. An appeal in such cases to this court,
to correct the erroneous action of these officers, would afford no
adequate remedy. Proceedings on habeas corpus are summary,
and the delay incident to bringing the decision of a State officer,
through the highest tribunal of the State, to this court for review
would necessarily occupy years, and in the meantime, where the
soldier was discharged, the mischief would be accomplished. It
is manifest that the powers of the National government could not
be exercised with energy and efficiency at all times, if its acts
could be interfered with and controlled for any period by officers
or tribunals of another sovereignty.
It is true similar embarrassment might sometimes be occa-
sioned, though in a less degree, by the exercise of the authority
to issue the writ possessed by judicial officers of the United States,
but the ability to provide a speedy remedy for any inconvenience
following from this source would always exist with the National
legislature.
TARBLE'SCASE. 57
State judges and State courts, authorized by laws of their
States to issue writs of habeas corpus, have undoubtedly a right
to issue the writ in any case where a party is alleged to be ille-
gally confined within their limits,' unless it appear upon his ap-
plication that he is confined under the authority, or claim and
color of the authority, of the United States, by an officer of that
government. If such fact appear upon the application the writ
should be refused. If it do not appear, the judge or court issu-
ing the writ has a right to inquire into the cause of imprison-
ment and ascertain by what authority the person is held within
the limits of the State ; and it is the duty of the marshal, or other
officer having the custody of the prisoner, to give, by a proper
return, information in this respect. His return should be suffi-
cient, in its detail of facts, to show distinctly that the imprison-
ment is under the authority, or claim and color of the authority,
of the United States, and to exclude the suspicion of imposition
or oppression on his part. And the process or orders, under
which the prisoner is held, should be produced with the return
and submitted to inspection, in order that the court or judge
issuing the writ may see that the prisoner is held by the officer,
in good faith, under the authority or claim and color of the au-
thority, of the United States, and not under the mere pretense
of having such authority.
This right to inquire by process of habeas corpus, and the duty
of the officer to make a return, "grows necessarily," says Mr.
Chief Justice Taney, "out of the complex character of our gov-
ernment and the existence of two distinct and separate sover-
eignties within the same territorial space, each of them restricted
in its power, and each within its sphere of action, prescribed by
the Constitution of the United States, independent of the other.
But, after the return is made, and the State judge or court
judicially apprised that the party is in custody under the author-
ity of the United States, they can proceed no further. They then
know that the prisoner is within the dominion and jurisdiction
of another government, and that neither the writ of habeas cor-
pus nor any other process issued under State authority can pass
over the line of division between the two sovereignties. He is
then within the dominion and exclusive jurisdiction of the United
States. If he has committed an offense against their laws, their
tribunals alone can punish him. If he is wrongfully imprisoned,
their judicial tribunals can release him and afford him redress. ' '
This limitation upon the power of State tribunals and State
58 CASES ON CONSTITUTIONAL LAW.
officers furnishes no just ground to apprehend that the liberty of
the citizen will thereby be endangered. The United States are as
much interested in protecting the citizen from illegal restraint
under their authority, as the several States are to protect him
from the like restraint under their authority, and are no more
likely to tolerate any oppression. Their courts and judicial offi-
cers are clothed with the power to issue the writ of habeas cor-
pus in all cases, where a party is illegally restrained of his lib-
erty by an officer of the United States, whether such illegality
consists in the character of the process, the authority of the offi-
cer, or the invalidity of the law under which he is held. And
there is no just reason to believe that they will exhibit any hesi-
tation to exert their power, when it is properly invoked. Cer-
tainly there can be no ground for supposing that their action
will be less prompt and efficient in such cases than would be that
of State tribunals and State officers. . . .
It follows, from the views we have expressed, that the court
commissioner of Dane County was without jurisdiction ^o issue
the writ of habeas corpus for the discharge of the prisoner in this
case, it appearing, upon the application presented to him for th«
writ, that the prisoner was held by an officer of the United States,
under claim and color of the authority of the United States, as
an enlisted soldier mustered into the military service of the
National government; and the same information was imparted
to the commissioner by the return of the officer. The commis-
sioner was, both by the application for the writ and the return to
it, apprised that the prisoner was within the dominion and juris-
diction of another government, and that no writ of habeas corpus
issued by him could pass over the line which divided the two
sovereignties. . . . Judgment reversed.
The Chief Justice, dissenting. ...
Note. — Aceord: Ableman v. Booth (1859), 21 Howard 506; Eobb v.
ConnoUy (1884), 111 U. S. 624; Logan v. Uuited States (1892), 144
U. S. 263.
AMERICAN INS. CO. v. CANTER. 59
Section 4. The Government of Teeritories and
Dependencies.
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.
Constitution of the United States, Art. IV, sec. S.
THE AMERICAN INSURANCE COMPANY AND THE
OCEAN INSURANCE COMPANY OF NEW YORK,
APPELLANTS, v. 356 BALES OF COTTON,
DAVID CANTER, CLAIMANT AND
APPELLEE.
Supreme Court op the TJNiTEn) States. 1828.
1 Peters, 511; 7 Lawyers' Ed. 242.
Mabshalij, C. J., delivered the opinion of the court.
The plaintiffs filed their libel in this cause in the district court
of South Carolina, to obtain restitution of 356 bales of cotton,
part of the cargo of the ship Point a Petre; which had been in-
sured by them on a voyage from New Orleans to Havre de Grace,
in, France. The Point a Petre was wrecked on the coast of Flori-
da, the cargo saved by the inhabitants and carried into Key
West, where it was sold for the purpose of satisfying the salvors ;
by virtue of a decree of a court consisting of a notary and five
jurors, which was erected by an act of the territorial legis-
lature of Florida. . . .
The cause depends mainly on the question whether the prop-
erty in the cargo saved was changed by the sale at Key West.
. . , Its validity has been denied on the ground that it was
ordered by an incompetent tribunal.
The tribunal was constituted by an act of the territorial legis-
lature of Florida, passed on the 4th July, 1823, which is in-
serted .in the record. That act purports to give the power which
has been exercised; consequently, the sale is valid, if the terri-
torial legislature was competent to enact the law.
The course which the argument has taken, will require that,
in deciding this question, the court should take into view the
relation in which Florida stands to the United States.
The constitution confers absolutely on the government of the
Union the powers of making war and of making treaties ; conse-
quently, that government possesses the power of acquiring terri-
tory, either by conquest or by treaty.
The usage of the world is, if a nation be not entirely subdued,
60 CASES ON CONSTITUTIONAL LAW.
to consider the holding of conquered territory as a mere military
occupation, until its fate shall be determined at the treaty of
peace. If it be ceded by the treaty, the acquisition is confirmed,
and the ceded territory becomes a part of the nation to which it is
annexed, either on the terms stipulated in the treaty of cession, or
on such as its new master shall impose. On such transfer of
territory, it has never been held that the relations of the in-
habitants with each other undergo any change. Their relations
with their former sovereign are dissolved, and new relations are
created between them and the government which has acquired
their territory. The same act which transfers their country, trans-
fers the allegiance of those who remain in it ; and the law, which
may be denominated political, is necessarily changed, although
that which regulates the intercourse and general conduct of in-
dividuals, remains in force until altered by the newly created
power of the state.
On the 2d of February, 1819, Spain ceded Florida to the
United States. The 6th article of the treaty of cession contains
the following provision: "The inhabitants of the territories
which his Catholic majesty cedes to the United States by this
treaty, shall be incorporated in the Union of the United States,
as soon as may be consistent with the principles of the federal
constitution, and admitted to the enjoyment of the privileges,
rights, and immunities of the citizens of the United States." 8
Stats, at Large, 252.
This treaty is the law of the land, and admits the inhabitants
of Florida to the enjoyment of the privileges, rights and immu-
nities of the citizens of the United States. It is unnecessary to
inquire whether this is not their condition, independent of stipu-
lation. They do not, however, participate in political power ; they
do not share in the government till Florida shall become a State.
In the meantime, Florida continues to be a territory of the United
States, governed by virtue of that clause in the constitution which
empowers congress "to make all needful rules and regulations
respecting the territory or other property belonging to the United
States."
Perhaps the power of governing a territory belonging to the
United States, which has not, by becoming a State, acquired the
means of self-government, may result necessarily from the facts
that it is not within the jurisdiction of any particular State, and
is within the power and jurisdiction of the United States. The
right to govern may be the inevitable consequence of the right to
acquire territory. "Whichever may be the source whence the
AMERICAN INS. CO. v. CANTER. 61
power is derived, the possession of it is unquestioned. In execu-
tion of it, congress, in 1822, passed "an act for the establishment
of a territorial government in Florida," (3 Stats, at Large, 654),
and on the 3d of March, 1823, passed another act to amend the
act of 1822. Under this act, the territorial legislature enacted the
law now under consideration.
The 5th section of the act of 1823 creates a territorial legis-
lature, which shall have legislative powers over all rightful ob-
jects of legislation; but no law shall be valid which is incon-
sistent with the laws and the constitution of the United States.
The 7th section enacts ' ' that the judicial power shall be vested
in two superior courts, and in such inferior courts and justices of
the peace as the legislative council of the territory may from
time to time establish. "...
It has been contended that, by the constitution, the judicial
power of the United States extends to all cases of admiralty and
maritime jurisdiction, and that the whole of this judicial power
must be vested ' ' in one supreme court and in such inferior courts
as congress shall from time to time ordain and establish."
Hence, it has been argued that congress cannot vest admiralty
jurisdiction in courts created by the territorial legislature.
We have only to pursue this subject one step further to per-
ceive that this provision of the constitution does not apply to it.
The next sentence declares that "the judges, both of the supreme
and inferior courts, shall hold their oiSces during good behavior. ' '
The judges of the superior courts of Florida hold their offices
for four years. These courts, then, are -not constitutional courts,
in which the judicial power conferred by the constitution on the
general government can be deposited. They are incapable of re-
ceiving it. They are legislative courts, created in virtue of the
general right of sovereignty which exists in the government, or
in virtue of that clause which enables congress to make all need-
ful rules and regulations respecting the territory belonging to the
United States. The jurisdiction with which they are invested is
not a part of that judicial power which is defined in the 3d
article of the constitution, but is conferred by congress, in the
execution of those general powers which that body possesses over
the territories of the United States. Although admiralty juris-
diction can be exercised in the States in those courts only which
are established in pursuance of the 3d article of the constitu-
tion, the same limitation does not extend to the territories. In
legislating for them, congress exercises the combined powers of
the general and of a state government
62 CASES On constitutional law.
"We think, then, that the act of the territorial legislature
erecting the court by whose decree the cargo of the Point a Petre
was sold, is not "inconsistent with the laws and constitution of
the United States," and is valid. Consequently, the sale made
in pursuance of it changed the property, and the decree of the
circuit court, awarding restitution of the property to the claim-
ant, ought to be affirmed, with costs.
CALLAN V. WILSON.
Supreme Court of the United States. 1888.
127 U. S. 540; 32 Lawyers' Ed. 223.
Appeal from the Supreme Court of the District of Columbia.
This was an appeal from a judgment refusing, upon writ of
habeas corpus, to discharge the appellant from the custody of the
appellee as marshal of the District of Columbia. It appears that
by an information filed by the United States in the Police Court
of the District, the petitioner, with others, was charged with the
crime of conspiracy, and having been found guilty by the court,
was sentenced to pay a fine of twenty-five dollars, and upon de-
fault in its payment to suffer imprisonment in jail for the period
of thirty days. . . .
The contention of the petitioner was that he is restrained of his
liberty in violation of the Constitution. ... To this infor-
mation the defendants interposed a demurrer, which was over-
ruled. They united in requesting a trial by jury. That request
was denied, and a trial was had before the court, without the
intervention of a jury. . . .
Mr. Justice Harlan . . . delivered the opinion of the
court.
It is contended by the appellant that the Constitution of the
United States secured to him the right to be tried by a jury, and,
that right having been denied, the Police Court was without juris-
diction to impose a fine upon him, or to order him to be impris-
oned until such fine was paid. This precise question is now, for
the first time, presented for determination by this court. If the
appellant's position be sustained, it will follow that the statute
(Rev. Stat. Dist. Col. §1064), dispensing with a petit jury, in
prosecutions by information in the police court, is inapplicable
to cases like the present one.
CALLAN V. WILSON. 63
The third article of the Constitution provides that "the trial of
all crimes, except in eases of impeachment, 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." The Fifth Amendment provides that no
person shall ' ' be deprived of life, liberty or property, without due
process of law." By the Sixth Amendment it is declared that
"in all criminal prosecutions the accused 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 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 compulsory
process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defense. ' '
The contention of the appellant is, that the offense with which
he is charged is a "crime" within the meaning of the third article
of the Constitution, and that he was entitled to be tried by a jury ;
that his trial by the police court, without a jury, was not ' ' due
process of law" within the meaning of the Fifth Amendment;
and that, in any event, the prosecution against him was a ' ' crim-
inal prosecution, ' ' in which he was entitled, by the Sixth Amend-
ment, to a speedy and public trial by an impartial jury.
The contention of the government is, that the Constitution does
not require that the right of trial by jury shall be secured to the
people of the District of Columbia; that the original provision,
that when a crime was not committed within any State "the trial
shaU be at such place or places as the Congress may by law have
directed," had, probably, reference only to offenses committed on
the high seas ; that, in adopting the Sixth Amendment, the people
of the States were solicitous about trial by jury in the States and
nowhere else, leaving it entirely to Congress to declare in what
way persons should be tried who might be accused of crime on the
high seas, and in the District of Columbia and in places to be
thereafter ceded for the purposes, respectively, of a seat of gov-
ernment, forts, magazines, arsenals, and dock-yards; and, conse-
quently that that Amendment should be deemed to have super-
seded so much of the third article of the Constitution as relates to
the trial of crimes by a jury.
Upon a careful examination of this position we are of opinion
that it cannot be sustained without violence to the letter and
spirit of the Constitution.
64 CASES ON CONSTITUTIONAL LAW.
The third article of the Constitution provides for a jury in the
trial of ' ' all crimes, except in eases of impeachment. ' ' The word
"crime," in its more extended sense, comprehends every viola-
tion of public law; in a limited sense, it embraces offenses of a
serious or atrocious character. In our opinion, the provision is
to be interpreted in the light of the principles which, at common
law, determined whether the accused, in a given class of cases,
was entitled to be tried by a jury. It is not to be construed as
relating only to felonies, or offenses punishable by confinement
in the penitentiary. It embraces as well some classes of misde-
meanors, the punishment of which involves or may involve the
deprivation of the liberty of the citizen. It would be a narrow
construction of the Constitution to hold that no prosecution for
a misdemeanor is a prosecution for a "crime" within the mean-
ing of the third article, or a "criminal prosecution" within the
meaning of the Sixth Amendment. And we do not think that
the amendment was intended to supplant that part of the third
article which relates to trial by jury. There is no necessary con-
flict between them. Mr. Justice Story says that the amendment,
"in declaring that the accused shall enjoy the right to a speedy
and public trial by an impartial jury of the State or district
wherein the crime shall have been committed (which district shall
be previously ascertained by law), and to be informed of the
nature and cause of the accusation, and to be confronted with the
witnesses against him, does but follow out the established course
of the common law in all trials for crimes." Story on the Con-
stitution, § 1791. And as the guarantee of a trial by jury, in the
third article, implied a trial in that mode and according to the
settled rules of the common law, the enumeration, in the Sixth
Amendment, of the rights of the accused in criminal prosecu-
tions, is to be taken as a declaration of what those rules were, and
is to be referred to the anxiety of the people of the States to have
in the supreme law of the land, and so far as the agencies of the
General G-overnment were concerned, a full and distinct recogni-
tion of those rules, as involving the fundamental rights of life,
liberty, and property. This recognition was demanded and se-
cured for the benefit of all the people of the United States, as
well those permanently or temporarily residing in the District
of Columbia, as those residing or being in the several States.
There is nothing in the history of the Constitution or of the
original amendments to justify the assertion that the people of
this district may be lawfully deprived of the benefit of any of
the constitutional guarantees of life, liberty, and property — es-
DOWNES V. BIDWELL. 65
peeially of the privilege of trial by jury in criminal cases. In
the Draft of a Constitution reported by the Committee of Five
on the 6th of August, 1787, in the convention which framed the
Constitution, the 4th section of Article XI read that "the trial
of all criminal offenses (except in cases of impeachment) shall
be in the States where they shall be committed ; and shall be by
jury." 1 Elliott's Deb., 2d ed., 229. But that article was, by
unanimous vote, amended so as to read : ' ' The trial of all crimes
(except in cases of impeachment) 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, then
the trial shall be at such place or places as the legislature may
direct." Id. 270. The object of thus amending the section,
Mr. Madison says, was "to provide for trial by jury of offenses
committed out of any State. ' ' 3 Madison Papers, 144. In Rey-
nolds V. United States, 98 U. S. 145, 154, it was taken for granted
that the Sixth Amendment of the Constitution secured to the
people of the Territories the right of trial by jury in criminal
prosecutions ; and it had been previously held in Webster v. Reid,
11 How. 437, 460, that the Seventh Amendment secured to them
a like right in civil actions at common law. We cannot think
that the people of this district have, in that regard, less rights
than those accorded to the people of the Territories of the
United States. . . .
The judgment is reversed, and the cause remanded with direc-
tions to discharge the appellant from custody.
DOWNES V. BIDWELL.
Supreme Court op the United States. 1901.
182 U. S. 244; 45 Lawyers' -Ed. 1088.
Error to the Circuit Court of the United States for the South-
em District of New York.
This was an action begun in the Circuit Court by Downes,
doing business under the firm name of S. B. Downes & Co.,
against the collector of the port of New York, to recover back
duties to the amount of $659.35 exacted and paid under pro-
test upon certain oranges consigned to the plaintiff at New York,
and Brought thither from the port of San Juan in the Island of
Porto Rico during the month of November, 1900, after the pas-
sage of the act temporarily providing a civil government and
revenues for the Island of Porto Rico, known as the Foraker act.
E. C. L.— 5
66 CASES ON CONSTITUTIONAL LAW.
The District Attorney demurred to the complaint for the want
of jurisdiction in the court, and for insufficiency of its aver-
ments. The demurrer was sustained, and the complaint dis-
missed. Whereupon plaintiff sued out this writ of error.' . . .
Mr. Justice Brown, after making the above statement, an-
nounced the conclusion and judgment of the court.
This case involves the question whether merchandise brought
into the port of New York from Porto Rico since the passage of
the Foraker act, is exempt from duty, notwithstanding the third
section of that act, which requires the payment^ of "fifteen per
centum of the duties which are required to be levied, collected
and paid upon like articles of merchandise imported from for-
eign countries." . . .
In the case of De Lima v. Bidwell, just decided, we held that
upon the ratification of the treaty of peace with Spain, Porto
Rico ceased to be a foreign country, and became a territory of
the United States, and that duties were no longer collectible
upon merchandise brought from that island. We are now asked
to hold that it became a part of the United States within that
provision of the Constitution which declares that "all duties,
imposts and excises shall be uniform throughout the United
States." (Art. I, § 8.) If Porto Rico be a part of the United
States, the Foraker act imposing duties upon its products is
unconstitutional, not only by reason of a violation of the uni-
formity clause, but because by section 9 "vessels bound to or from
one State" cannot "be obliged to enter, clear or pay duties in
another."
The ease also involves the broader question whether the reve-
nue clauses of the Constitution extend of their own force to our
newly acquired territories. The Constitution itself does not an-
swer the question. Its solution must be found in the nature of
the government created by that instrument, in the opinion of
its contemporaries, in the practical construction put upon it by
Congress and in the decisions of this court. . . .
It is sufficient to observe in relation to these three fundamental
instruments [The Articles of Confederation, the Ordinance of
1787, and the Constitution] that it can nowhere be inferred that
the territories were considered a part of the United States. The
Constitution was created by the people of the United States,
as a union of States, to be governed solely by representatives of
the States; and even the provision relied upon here, that all
duties, imposts and excises shaU be uniform "throughout the
DOWNBS V. BIDWELL. 67
United States, ' ' is explained by subsequent provisions of the Con-
stitution, that "no tax or duty shall be laid on articles exported
from any State," and "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." In
short, the Constitution deals with States, their people and their
representatives.
The Thirteenth Amendment to the Constitution, prohibiting
slavery and involuntary servitude "within the United States, or
in any place subject to their jurisdiction, ' ' is also significant as
showing that there may be places within the jurisdiction of the
United States that are no part of the Union. To say that the
phraseology of this amendment was due to the fact that it was
intended to prohibit slavery in the seceded States, under a possi-
ble interpretation that those States were no longer a part of the
Union, is to confess the very point in issue, since it involves an
admission that, if these States were not a part of the Union,
they were still subject to the jurisdiction of the United States.
Upon the other hand, the Fourteenth Amendment, upon the
subject of citizenship, declares only that "all persons born or
naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States, and of the State
wherein they reside. ' ' Here there is a limitation to persons born
or naturalized in the United States which is not extended to per-
sons born in any place "subject to their jurisdiction."
The question of the legal relations between the States and the
newly acquired territories first became the subject of public dis-
cussion in connection with the purchase of Louisiana in 1803.
. . . It is well known that Mr. Jefferson entertained grave
doubts as to his power to make the purchase, or, rather, as to
his right to annex the territory and make it part of the United
States, and had instructed Mr. Livingston to make no agreement
to that effect in the treaty, as he believed it could not be legally
done. Owing to a new war between England and France being
upon the point of breaking out, there was need for haste in the
negotiations, and Mr. Livingston took the responsibility of dis-
obeying his instructions, and, probably owing to the insistence
of Bonaparte, consented to the third article of the treaty, which
provided that "the inhabitants of the ceded territory shall be
incorporated in the Union of the United States, and admitted
as soon as possible, according to the principles of the Federal
Constitution, to the enjoyment of all the rights, advantages and
68 CASES ON CONSTITUTIONAL LAW.
immunities of citizens of the United States; and in the mean-
time they shall be maintained and protected in the free enjoy-
ment of their liberty, property and the religion which they
profess." This evidently committed the government to the ulti-
mate, but not to the immediate, admission of Louisiana as a
State, and postponed its incorporation into the Union to the
pleasure of Congress. . . .
The raising of money to provide for the purchase of this terri-
tory and the act providing a civil government gave rise to an
animated debate in Congress, in which two questions were promi-
nently presented : First, whether the provision for the ultimate
incorporation of Louisiana into the Union was constitutional;
and, second, whether the seventh article of the treaty admitting
the ships of Spain and France for the next twelve years "into
the ports of New Orleans, and in all other legal ports of entry
within the ceded territory, in the same manner as the ships of
the United States coming directly from France or Spain, or any
of their colonies, without being subject to any other or greater
duty on merchandise or other or greater tonnage than that paid
by the citizens of the United States," was an unlawful discrimi-
nation in favor of those ports and an infringement upon Art. I,
§ 9, of the Constitution, that "no preference shall be given by any
regulation of commerce or revenue to the ports of one State over
those of another. ' ' This article of the treaty contained the fur-
ther stipulation that ' ' during the space of time above mentioned
no other nation shall have a right to the same privileges in the
ports of the ceded territory ; . . . and it is well understood
that the object of the above article is to favor the manufactures,
commerce, freight and navigation of France and Spain. " . . .
As a sequence to this debate two bills were passed, one October
31, 1803, 2 Stat. 245, authorizing the President to take posses-
sion of the territory, and to continue the existing government,
and the other November 10, 1803, 2 Stat. 245, making provision
for the payment of the purchase price. These acts continued in
force until March 26, 1804, when a new act was passed provid-
ing for a temporary government, 2 Stat. 283, c. 38, and vesting
all legislative powers in a governor and legislative council, to
be appointed by the President. These statutes may be taken as
expressing the view of Congress, first, that territory may be law-
fully acquired by treaty, with a provision for its ultimate incor-
poration into the Union; and, second, that a discrimination in
favor of certain foreign vessels trading with the ports of a newly
acquired territory is no violation of that clause of the Consti-
DOWNES V. BIDWELL. 69
tution, Art. I, § 9, that declares that no preference shall be given
to the ports of one State over those of another. It is evident that
the constitutionality of this discrimination can only be supported
upon the theory that ports of territories are not ports of States
within the meaning of the Constitution.
The same construction was adhered to in the treaty with Spain
for the purchase of Florida, 8 Stat. 252, the sixth article of
which provided that the inhabitants should "be incorporated
into the Union of the United States, as soon as may be consistent
with the principles of the Federal Constitution"; and the fif-
teenth article of which agreed that Spanish vessels coming
directly from Spanish ports and laden with productions of Span-
ish growth or manufacture, should be admitted, for the term of
twelve years, to the ports of Pensacola and St. Augustine,
"without paying other or higher duties on their cargoes, or of
tonnage, than will be paid by the vessels of the United States,"
and that "during the said term no other nation shall enjoy
the same privileges within the ceded territories."
So, too, in the act annexing the Republic of Hawaii, there was
a provision continuing in effect the customs relations of the
Hawaiian Islands with the United States and other countries,
the effect of which was to compel the collection in those islands
of a duty upon certain articles, whether coming from the United
States or other countries, much greater than the duty provided
by the general tariff laws then in force. This was a discrimina-
tion against the Hawaiian ports wholly inconsistent with the
revenue clauses of the Constitution, if such clauses were there
operative.
The very treaty with Spain under discussion in this case con-
tains similar discriminative provisions, which are apparently
irreconcilable with the Constitution, if that instrument be held
to extend to these 'islands immediately upon their cession to the
United States. By Art. IV the United States agree "for the
term of ten years from the date of the exchange of the ratifica-
tions of the present treaty, to admit Spanish ships and merchan-
dise to the ports of the Philippine Islands on the same terms as
ships and merchandise of the United States" — a privilege not
extending to any other ports. It was a clear breach of the uni-
formity clause in question, and a manifest excess of authority
on the part of the commissioners, if ports of the Philippine Is-
lands be ports of the United States.
So, too, by Art. XIII, ' ' Spanish scientific, literary and artistic
works . . . shall be continued to be admitted free of duty
70 CASES ON CONSTITUTIONAL LAW.
in such territories, for the period of ten years, to be reckoned
from the date of the exchange of the ratifications of this treaty."
This is also a clear discrimination in favor of Spanish literary
productions into particular ports.
Notwithstanding these provisions for the incorporation of ter-
ritories into the Union, Congress, not only in organizing the ter-
ritory of Louisiana by act of March 26, 1804, but all other
territories carved out of this vast inheritance, has assumed that
the Constitution did not extend to them of its own force, and has
in each case made special provision, either that their legisla-
tures shall pass no law inconsistent with the Constitution of the
United States, or that the Constitution or laws of the United
States shall be the supreme law of such territories. Finally, in
Rev. Stat. §1891, a general provision was enacted that "the
Constitution and all laws of the United States which are not
locally inapplicable shall have the same force and effect within
all the organized territories, and in every territory hereafter
organized, as elsewhere within the United States."
So, too, on March 6, 1820, 3 Stat. 545, c. 22, in an act author-
izing the people of Missouri to form a state government, after a'
heated debate. Congress declared that in the territory of Lou-
isiana notth of 36° 30' slavery should be forever prohibited. It
is true that for reasons which have become historical, this act
was declared to be unconstitutional in Scott v. Sandf ord, 19 How.
393, but it is none the less a distinct annunciation by Congress of
power over property in the territories which it obviously did not
possess in the several States.
The researches of counsel have collated a large number of
other instances, in which Congress has in its enactments recog-
nized the fact that provisions intended for the States did not
embrace the territories, unless specially mentioned. These are
found in the laws prohibiting the slave trade, with "the United
States or territories thereof"; or equipping ships "in any port
or place within the jwrisdiction of the United States"; in the
internal revenue laws, in the early ones of which no provision
was made for the collection of taxes in the territory not included
within the boundaries of the existing States, and others of which
extended them expressly to the territories, or "within the exte-
rior boundaries of the United States"; and in the acts extend-
ing the internal revenue laws to the Territories of Alaska and
Oklahoma. It would prolong this opinion unnecessarily to set
forth the provisions of these acts in detail. It is sufficient to
say that Congress has or has not applied the revenue laws to the
DOWNES V. BIDWELL. 71
territories, as the circumstances of each case seemed to require,
and has specifically legislated for the territories whenever it
was its intention to execute laws beyond the limits of the States.
Indeed, whatever may have been the fluctuations of opinion in
other bodies, (and even this court has not been exempt from
them,) Congress has been consistent in recognizing the differ-
ence between the States and territories under the Constitution.
The decisions of this court upon this subject have not been
altogether harmonious. Some of them are based upon the theory
that the Constitution does not apply to the territories without
legislation. Other cases, arising from territories where such
legislation has been had, contain language which would justify
the inference that such legislation was unnecessary, and that the
Constitution took effect immediately upon the cession of the terri-
tory to the United States. It may be remarked, upon the thresh-
old of an analysis of these cases, that too much weight must not
be given to general expressions found in several opinions that
the power of Congress over territories is complete and supreme,
because these words may be interpreted as meaning only supreme
under the Constitution ; nor upon the other hand, to general state-
ments that the Constitution covers the territories as well as the
States, since in such cases it will be found that acts of Congress
had already extended the Constitution to such territories, and
that thereby it subordinated not only its own acts, but those of
the territorial legislatures, to what had become the supreme law
of the land. . . .
[Here follows a consideration of the cases of Hepburn v. EU-
zey, 2 Cranch, 445 ; New Orleans v. Winter, 1 Wheaton, 91 ; Scott
V. Jones, 5 Howard, 343; Miners' Bank v. Iowa, 12 Howard, 1;
Barney v. Baltimore City, 6 "Wallace, 280; Hooe v. Jamieson,
166 U. S. 395 ; Loughborough v. Blake, 5 Wheaton, 317 ; CaUan
V. Wilson, 127 U. S. 540; Geofroy v. Riggs, 133 U. S. 258;
American Insurance Co. v. Canter, 1 Peters, 511; Benner v.
Porter, 9 Howard, 235 ; Clinton v. Englebrecht, 13 Wallace, 434 ;
Good V. Martin, 95 U. S. 90 ; McAllister v. United States, 141
U. S. 174; McCuUoch v. Maryland, 4 Wheaton, 316; United
States V. Gratiot, 14 Peters, 526; Mormon Church v. United
States, 136 U. S. 1 ; National Bank v. County of Yankton, 101
U. S. 129 ; Murphy v. Ramsey, 114 U. S. 15 ; Webster v. Reid, 11
Howard, 437; Reynolds v. United States, 98 U. S. 145; Ross's
Case, 140 U. S. 453 ; American Publishing Co. v. Fisher, 166 U. S.
464; and Thompson v. Utah, 170 U. S. 343.]
Eliminating, then, from the opinion of this court all expres-
72 CASES ON CONSTITUTIONAL LAW.
sions unnecessary to the disposition of the particular ease, and
gleaning therefrom the exact point decided in each, the follow-
ing propositions may be considered as established:
1. That the District of Columbia and the territories are not
States, within the judicial clause of the Constitution giving juris-
diction in cases between citizens of different States;
2. That territories are not States, within the meaning of Re-
vised Statutes, § 709, permitting writs of error from this court
in cases where the validity of a state statute is drawn in ques-
tion;
3. That the District of Columbia and the territories are States,
as that word is used in treaties with foreign powers, with re-
spect to the ownership, disposition and inheritance of property;
4. That the territories are not within the clause of the Con-
stitution providing for the creation of a Supreme Court and
such inferior courts as Congress may see fit to establish;
5. That the Constitution does not apply to foreign countries or
to trials therein conducted, and that Congress may lawfully
provide for such trials before consular tribunals, without the
intervention of a grand or petit jury;
6. That where the Constitution has been once formally ex-
tended by Congress to territories, neither Congress nor the ter-
ritorial legislature can enact laws inconsistent therewith. . . .
[Here follows an analysis of the Dred Scott ease.]
While there is much in the opinion of the Chief Justice [in
the Dred Scott ease] which tends to prove that he thought all the
provisions of the Constitution extended of their own force to the
territories west of the Mississippi, the question actually decided
is readily distinguishable from the one involved in the case under
consideration. The power to prohibit slavery in the territories
is so different from the power to impose duties upon territorial
products, and depends upon such different provisions of the Con-
stitution,, that they can scarcely be considered as analogous, un-
less we assume broadly that every clause of the Constitution
attaches to the territories as well as to the States — a claim quite
inconsistent with the position of the court in the Canter case-
If the assumption be true, that slaves are indistinguishable from
other property, the inference from the Dred Scott case is irre^
sistible that Congress had no power to prohibit their introduc-
tion into a territory. . . . The difficulty with the Dred Seott
case was that the court refused to make a distinction between
property in general and a wholly exceptional class of property,
Mr. Benton tersely stated the distinction by saying that the
DOWNBS v. BIDWELL. 73
Virginian might carry his slave into the territories, but he could
not carry with him the Virginian law which made him a slave.
To sustain the judgment in the case under consideration it by
no means becomes necessary to show that none of the articles of
the Constitution apply to the Island of Porto Rico. There is a
clear distinction between such prohibitions as go to the very root
of the power of Congress to act at all, irrespective of time or
place, and such as are operative only "throughout the United
States" or among the several States.
Thus, when the Constitution declares that "no bill of attainder
or ex post facto law shall be passed," and that "no title of nobil-
ity shall be granted by the United States," it goes to the com-
petency of Congress to pass a bill of that description. Perhaps,
the same remark may apply to the First Amendment, that "Con-
gress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the free-
dom of speech, or of the press; or the right of the people to
peacefully assemble, and to petition the government for a redress
of grievances." "We do not wish, however, to be understood as
expressing an opinion how far the bill of rights contained in
the first eight amendments is of general and how far of local
application.
Upon the other hand, when the Constitution declares that all
duties shall be uniform "throughout the United States," it be-
comes necessary to inquire whether there be any territory over
which Congress has jurisdiction which is not a part of the
"United States," by which term we understand the States whose
people united to form the Constitution, and such as have since
been admitted to the Union upon an equality with them. Not
only did the people in adopting the Thirteenth Amendment thus
recognize a distinction between the United States and ' ' any place
subject to their jurisdiction," but Congress itself, in the act of
March 27, 1804, c. 56, 2 Stat. 298, providing for the proof of
public records, applied the provisions of the act not only to
"every court and office within the United States," but to the
"courts and offices of the respective territories of the United
States and countries subject to the jurisdiction of the United
States," as to the courts and offices of tlie several States. . . .
Unless these words are to be rejected as meaningless, we must
treat them as a recognition by Congress of the fact that there
may be territories subject to the jurisdiction of the United States,
which are not of the United States.
74 CASES ON CONSTITUTIONAL LAW.
In determining the meaning of the words of Art. I, § 6, "uni-
form throughout the United States," we are bound to consider
not only the provisions forbidding preference being given to the
ports of one State over those of another (to which attention
has already been called), but the other clauses declaring that no
tax or duty shall be laid on articles exported from any State, and
that no State shall, without the consent of Congress, lay any
imposts or duties upon imports or exports, nor any duty on ton-
nage. The object of all of these was to protect the States which
united in forming the Constitution from discriminations by Con-
gress, which would operate unfairly or injuriously upon some
States and not equally upon others. . . . Thus construed to-
gether, the purpose is irresistible that the words "throughout
the United States" are indistinguishable from the words "among
or between the several States, ' ' and that these prohibitions were
intended to apply only to commerce between ports of the several
States as they then existed or should thereafter be admitted to
the Union.
Indeed, the practical interpretation put by Congress upon the
Constitution has been long continued and uniform to the effect
that the Constitution is applicable to territories acquired by pur-
chase or conquest only when and so far as Congress shall so
direct. Notwithstanding its duty to "guarantee to every State
in this Union a republican form of government," Art. IV, §4,
by which we understand, according to the definition of "Webster,
"a government in which the supreme power resides in the whole
body of the people, and is exercised by representatives elected by
them," Congress did not hesitate, in the original organization
of the territories of Louisiana, Florida, the Northwest Territory,
and its subdivisions of Ohio, Indiana, Michigan, Illinois and
"Wisconsin, and still more recently in the case of Alaska, to estab-
lish a form of government bearing a much greater analogy to a
British crown colony than a republican State of America, and to
vest the legislative power either in a governor and council, or a
governor and judges, to be appointed by the President. It was
not until they had attained a certain population that power was
given them to organize a legislature by vote of the people. In
all these cases, as well as in territories subsequently organized
west of the Mississippi, Congress thought it necessary either to
extend the Constitution and laws of the United States over them,
or to declare that the inhabitants should be entitled to enjoy
the right of trial by jury, of bail, and of the privilege of the writ
of habeas corpus, as well as other privileges of the bill of rights.
DOWNES V. BllDWfiLL. 16
We are also of opinion that the power to acquire territory by
treaty implies not only the power to govern such territory, but
to prescribe upon what terms the United States will receive its
inhabitants, and what their status shall be in what Chief Justice
Marshall termed the "American Empire." There seems to be
no middle ground between this position and the doctrine that if
their inhabitants do not become, immediately upon annexation,
citizens of the United States, their children thereafter bom,
whether savages or civilized, are such, and entitled to all the
rights, privileges and immunities of citizens. If such be their
status, the consequences will be extremely serious. Indeed, it is
doubtful if Congress would ever assent to the annexation of
territory upon the condition that its inhabitants, however for-
eign they may be to our habits, traditions and modes of life,
shall become at once citizens of the United States. In all its
treaties hitherto the treaty-making power has made special pro-
vision for this subject; in the eases of Louisiana and Florida,
by stipulating that "the inhabitants shall be incorporated into
the Union of the United States and admitted as soon as possible
. . . to the enjoyment of all the rights, advantages and immu-
nities of citizens of the United States"; in the case of Mexico,
that they should "be incorporated into the Union, and be ad-
mitted at the proper time (to be judged of by the Congress of
the United States), to the enjoyment of all the rights of citizens
of the United States" ; in the case of Alaska, that the inhabitants
who remained three years, "with the exception of uncivilized
native tribes, shall be admitted to the enjoyment of all the
rights," etc.; and in the ease of Porto Rico and the Philippines,
"that the civil rights and political status of the native inhab-
itants . . . shall be determined by Congress." In all these
cases there is an implied denial of the right of the inhabitants
to American citizenship until Congress by further action shall
signify its assent thereto. . . .
"We suggest, without intending to decide, that there may be
a distinction between certain natural rights, enforced in the Con-
stitution by prohibitions against interference with them, and
what may be termed artificial or remedial rights,' which are
peculiar to oiTr own system of jurisprudence. Of the former
class are the rights to one 's own religious opinions and to a pub-
lic expression of them, or, as sometimes said, to worship God
according to the dictates of one 's own conscience ; the right to
personal liberty and individual property; to freedom of speech
and of the press ; to free access to courts of justice, to due proc-
76 CASES ON CONSTITUTIONAL LAW.
ess of law and to an equal protection of the laws ; to immunities
from unreasonable searches and seizures, as well as cruel and un-
usual punishments; and to such other immunities as are indis-
pensable to a free government. Of the latter class are the rights
to citizenship, to suffrage. Minor v. Happersett, 21 Wall. 162,
and to the particular methods of procedure pointed out in the
Constitution, which are peculiar to Anglo-Saxon jurisprudence,
and some of which have already been held by the States to be un-
necessary to the proper protection of individuals.
Whatever may be finally decided by the American people as
to the status of these islands and their inhabitants — whether they
shall be introduced into the sisterhood of States or be permitted
to form independent governments — it does not follow that, in the
meantime, awaiting that decision, the people are in the matter
of personal rights unprotected by the provisions of our Constitu-
tion, and subject to the merely arbitrary control of Congress.
Even if regarded as aliens, they are entitled under the princi-
ples of the Constitution to be protected in life, liberty and prop-
erty. This has been frequently held by this court in respect to
the Chinese, even when aliens, not possessed of the'political rights
of citizens of the United States. Tick Wo. v. Hopkins, 118 U. S.
356 ; Fong Yue Ting v. United States, 149 U. S. 698 ; Lem Moon
Sing, 158 U. S. 538, 547 ; Wong Wing v. United States, 163 U. S.
228. We do not desire, however, to anticipate the difficulties
which would naturally arise in this connection, but merely to
disclaim any Intention to hold that the inhabitants of these
territories are subject to an unrestrained power on the part of
Congress to deal with them upon the theory that they have no
rights which it is bound to respect. . . .
In passing upon the questions involved in this case and kindred
cases, we ought not to overlook the fact that, while the Consti-
tution was intended to establish a permanent form of govern-
ment for the States which should elect to take advantage of its
conditions, and continue for an indefinite future, the vast possi-
bilities of that future could never have entered the minds of its
framers. The States had but recently emerged from a war with
one of the most powerful nations of Europe ; were disheartened
by the failure of the confederacy, and were doubtful as to the
feasibility of a stronger union. Their territory was confined to
a narrow strip of land on the Atlantic coast from Canada to
Florida, with a somewhat indefinite claim to territory beyond
the AUeghenies, where their sovereignty was disputed by tribes
of hostile Indians supported, as was popularly believed, by the
DOWNES V. BIDWBLL. 77
British, who had never formally delivered possession under the
treaty of peace. The vast territory beyond the Mississippi, which
formerly had been claimed by France, since 1762 had belonged
to Spain, still a powerful nation, and the owner of a great part
of the Western Hemisphere. Under these circumstances it is
little wonder that the question of annexing these territories was
not made a subject of debate. The difficulties of bringing about
a union of the States were so great, the objections to it seemed
so formidable, that the whole thought of the convention centered
upon surmounting these obstacles. The question of territories
was dismissed with a single clause, apparently applicable only
to the territories then existing, giving Congress the power to
govern and dispose of them.
Had the acquisition of other territories been contemplated as
a possibility, could it have been foreseen that, within little more
than one hundred years, we were destined to acquire not only the
whole vast region between the Atlantic and Pacific Oceans, but
the Russian possessions in America and distant islands in the
Pacific, it is incredible that no provision should have been made
for them, and the question whether the Constitution should or
should not extend to them have been definitely settled. If it be
once conceded that we are at liberty to acquire foreign territory,
a presumption arises that our power with respect to such terri-
tories is the same power which other nations have been accus-
tomed to exercise with respect to territories acquired by them.
If, in limiting the power which Congress was to exercise within
the United States, it was also intended to limit it with regard
to such territories as the people of the United States should
thereafter acquire, such limitations should have been expressed.
Instead of that, we find the Constitution speaking only to States,
except in the territorial clause, which is absolute in its terms,
and suggestive of no limitations upon the power of Congress in
dealing with them. The States could only delegate to Congress
such powers as they themselves possessed, and as they had no
power to acquire new territory they had none to delegate in that
connection. The logical inference from this is, that if Congress
had power to acquire new territory, which is conceded, that
power was not hampered by the constitutional provisions. If,
upon the other hand, we assume that the territorial clause of
the Constitution was not intended to be restricted to such terri-
tory as the United States then possessed, there is nothing in the
Constitution to indicate that the power of Congress in dealing
78 CASES ON CONSTITUTIONAL LAW.
with them was intended to be restricted by any of the other
provisions.
There is a provision that "new States may be admitted by
the Congress into this Union." These words, of course, carry
the Constitution with them, but nothing is said regarding the
acquisition of new territories or the extension of the Constitution
over them. The liberality of Congress in legislating the Con-
stitution into all our contiguous territories has undoubtedly fos-
tered the' impression that it went there by its own force, but there
is nothing in the Constitution itself, and little in the interpre-
tation put upon it, to confirm that impression. There is not
even an analogy to the provisions of an ordinary mortgage for
its attachment to after-acquired property, without which it cov-
ers only property existing at the date of the mortgage. In short,
there is absolute silence upon the subject. The executive and
legislative departments of the government have for more than
a century interpreted this silence as precluding the idea that
the Constitution attached to these territories as soon as acquired,
and unless such interpretation be manifestly contrary to the
letter or spirit of the Constitution, it should, be followed by the
judicial department. Cooley's Consti. Lim., sees. 81 to 85.
Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57 ; Field
V. Clark, 143 U. S. 649, 691; . . .
We are therefore of opinion that the Island of Porto Rico is
a territory appurtenant and belonging to the United States, but
not a part of the United States within the revenue clauses of
the Constitution ; that the Foraker act is constitutional, so far as
it imposes duties upon imports from such island, and that the
plaintiff cannot recover back the duties exacted in this case.
The judgment of the Circuit Court is therefore
Afjirmed.
[Me. Justice White delivered a concurring opinion, in which
Me. Justice Shieas and Me. Justice McKenna joined. Mr.
Justice Geay also delivered a concurring opinion. Me. Chief
Justice Fulleb delivered a dissenting opinion in which Me.
Justice Haelan, Me. Justice Beewee and Me. Justice Peck-
ham concurred. Mr. Justice Haelan also delivered a separate
dissenting opinion.]
Note. — As to the operation of the guarantees of the Constitution in the
court of an American consul in China, see In re Eoss (1890), 140 U. S. 453;
DOWNES V. BIDWELL. 79
in the government of an Indian tribe, see Talton v. Mayes (1896), 163 U. S.
376 ; in territory which has been made part of the United States, see Thomp-
son V. Utah (1898), 170 U. S. 343; Easmussen v. United States (1905), 197
U. S. 516; in territory not incorporated in the United States, see Hawaii v.
Mankichi (1903), 190 U. S. 197, Dorr v. United States (1904), 195 U. S. 138.
CHAPTER II.
CITIZENSHIP IN THE UNITED STATES.
Section 1. Who aee Citizens.
All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of
the State wherein they reside.
Constitution of the United States, Amendment XIV, sec. 1.
DRED SCOTT, Plaintiff in Error, v. JOHN F. A. SAND-
FORD.
SUPEEMB CO0RT OF THE UnITBD StATES. 1857.
19 Howard, 393; 15 Lawyers' Ed. 691.
This case was brought up, by writ of error, from the Circuit
Court of the United States for the district of Missouri. . . .
[In 1834, Dred Scott, a negro slave belonging to Dr. Emerson, a
surgeon in the United States army, was taken by his master from
Missouri to Rock Island, Illinois, where slavery was prohibited
by statute. Thence he was taken, in 1836, to Fort Snelling, in
the territory of upper Louisiana. This post was situated on the
west bank of the Mississippi, north of latitude 36° 30', and north
of Missouri, and hence within the territory in which slavery had
been forbidden by the Missouri Compromise. In 1836, with the
consent of their master, Dred and Harriet were married. In
1838, Dr. Emerson returned with his slaves to Missouri. In 1847,
Dred brought suit in the Missouri circuit court to recover his
freedom, having discovered that according to previous decisions
of Missouri courts, residence in free territory conferred free-
dom. Judgment was rendered in his favor, but was reversed by
the Missouri Supreme Court. Before the commencement of the
present suit, Dred and his wife and two children were sold to
Sandford, a citizen of New York. Scott having brought suit in
trespass for assault and battery against Sandford in the Federal^
Circuit Court of Missouri, Sandford pleaded to the jurisdiction
of the court that this could not be a suit between citizens of dif-
ferent States, because Scott was not a citizen of Missouri, but
"a negro of pure African descent; his ancestors were of pure
African blood and were brought into this country and sold as
80
SCOTT V. SANDFORD. 81
negro slaves." To this Scott demurred and the demurrer was
sustained. The defendant then pleaded in bar to the action that
the plaintiff was his negro slave, and that he had only gently
laid hands on him to restrain him, as he had a right to do. The
judge instructed the jury that, "upon the facts in this case, the
law is with the defendant." The plaintiff excepted to this in-
struction, and upon his exceptions the case was taken to the
United States Supreme Court.]
Mr. Chief Justice Taney delivered the opinion of the court.^
There are two leading questions presented by the record:
1. Had the Circuit Court of the United States jurisdiction to
hear and determine the case between these parties? And
2. If it had jurisdiction, is the judgment it has given erro-
neous or not?
The plaintiff in error, who was also the plaintiff in the court
below, was, with his wife and children, held as slaves by the de-
fendant, in the State of Missouri ; and he brought this action in
the Circuit Court of the United States for that district, to assert
the title of himself and his family to freedom.
The declaration is in the form usually adopted in that State
to try questions of this description, and contains the averment
necessary to give the court jurisdiction ; that he and the defend-
ant are citizens of different States ; that is, that he is a citizen of
Missouri, and the defendant a citizen of New York.
The defendant pleaded in abatement to the jurisdiction of the
court, that the plaintiff was not a citizen of the State of Mis-
souri, as alleged in his declaration, being a negro of African de-
scent, whose ancestors were of pure African blood, and who were
brought into this country and sold as slaves.
To this plea the plaintiff demurred, and the defendant joined
in demurrer. The court overruled the plea, and gave judgment
that the defendant should answer over. And he thereupon put
in sundry pleas in bar, upon which issues were joined ; and at
1 The reporter of the Court is in error in describing Chief Justice Taney 's
opinion as ' ' the opinion of the court. ' ' Care should be taken to distinguish
the opinion of the court from the judgment of the court. The Supreme Court
consisted of nine judges, seven of whom concurred in the judgment an-
nounced by the Chief Justice, but only two of the seven, Justice Wayne and
Justice Daniel, concurred. entirely in the opinion of the Chief Justice. All
the justices of the majority concurred in the opinion of Justice Nelson, which
was originally prepared to stand as the opinion of the court.
E. C L.— 6
82 CASES ON CONSTITUTIONAL LAW.
the trial the verdict and judgment were in his favor. Where-
upon the plaintiff brought this writ of error.
Before we speak of the pleas in bar, it will be proper to dis-
pose of the questions which have arisen on the plea in abatement.
That plea denies the right of the plaintiff to sue in a court of
the United States, for the reasons therein stated. . . . It is
suggested, however, that this plea is not before us. . . . We
think they [the plea and the judgment of the court upon it]
are before us . . . and it becomes, therefore, our duty to
decide whether the facts stated in the plea are or are not sufS-
cient to show that the plaintiff is not entitled to sue as a citizen
in a court of the United States. . . .
The question is simply this : Can a negro, whose ancestors were
imported into this country, and sold as slaves, become a member
of the political community formed and brought into existence by
the Constitution of the United States, and as such become entitled
to all the rights, privileges and immunities, guarantied by that
instrument to the citizen ? One of which rights is the privilege of
suing in a court of the United States in the cases specified in the
Constitution. . . . And this being the only matter in dis-
pute on the pleadings, this court must be understood as speak-
ing in this opinion of that class only, that is, of those persons
who are the descendants of Africans who were imported into
this country and sold as slaves. . . .
The words "people of the United States" and "citizens" are
synonymous terms, and mean the same thing. They both de-
scribe the political body who, according to our republican insti-
tutions, form the sovereignty, and who hold the power and con-
duct the Government through their representatives. They are
what we familiarly call the "sovereign people," and every citi-
zen is one of this people, and a constituent member of this sov-
ereignty. The question before us is, whether the class of per-
sons described in the plea of abatement compose a portion of this
people, and are constituent members of this sovereignty? We
think they are not, and that they are not included, and were not
intended to be included, under the word "citizens" in the Con-
stitution, and can therefore claim none of the rights and privi-
leges which that instrument provides for and secures to citizens
of the United States. On the contrary they were at that time
considered as a subordinate and inferior class of beings, who
had been subjugated by the dominant race, and whether eman-
cipated or not, yet remained subject to their authority, and had
SCOTT y. SANDFORD. 83
no rights or privileges but such as those who held the power and
the Government might choose to grant them. . . .
In discussing this question, we must not confound the rights
of citizenship which a State may confer within its own limits,
and the rights of citizenship as a member of the Union. It does
not by any means follow, because he has all the rights and privi-
leges of a citizen of a State, that he must be a citizen of the
United States. He may have all the rights and privileges of the
citizen of a State, and yet not be entitled to the rights and privi-
leges of a citizen in any other State. For, previous to the adop-
tion of the Constitution of the United States, every State had the
undoubted right to confer on whomsoever it pleased the charac-
ter of citizen, and to endow him with all his rights. But this
character of course was confined to the boundaries of the State,
and gave him no rights or privileges in other States beyond
those secured to him by the laws of nations and the comity of
States. Nor have the several States surrendered the power of
conferring these rights and privileges by adopting the Consti-
tution of the United States. Each State may still confer them
upon an alien, or any one it thinks proper, or upon any class
or description of persons; yet he would not be a citizen in the
sense in which that word is used in the Constitution of the United
States, nor entitled to sue as such in one of its courts, nor to the
privileges and immunities of a citizen in the other States. The
rights which he would acquire would be restricted to the State
which gave them. The Constitution has conferred on Congress
the right to establish an uniform rule of naturalization, and this
right is evidently exclusive, and has always been held by this
court to be so. Consequently, no State, since the adoption of the
Constitution, can, by naturalizing an alien, invest him with the
rights and privileges secured to a citizen of a State under the
Federal Government, although, so far as the State alone was
concerned, he would undoubtedly be entitled to the rights of a
citizen, and clothed with all the rights and immunities which
the Constitution and laws of *he State attached to that character.
It is very clear, therefore, that no State can, by any act or
law of its own, passed since the adoption of the Constitution, in-
troduce a new member into the political community created by
the Constitution of the United States. It cannot make him a
member of this community by making him a member of its own.
And for the same reason it cannot introduce any person, or de-
scription of persons, who are not intended to be embraced in this
84 CASES ON CONSTITUTIONAL LAW.
new political family, which the Constitution brought into exist-
ence, but were intended to be excluded from it.
The question then arises, whether the provisions of the Con-
stitution, in relation to the personal rights and privileges to
which the citizen of a State should be entitled, embraced the
negro African race, at that time in this country, or who might
afterward be imported, .who had then or should afterwards be
made free in any State ; and to put it in the power of a single
State to make him a citizen of the United States, and endow
him with the full rights of citizenship in every other State with-
out their consent? Does the Constitution of the United States
act upon him whenever he shall be made free under the laws of
a State, and raised there to the rank of a citizen, and immedi-
ately clothe him with all the privileges of a citizen in every
other State, and in its own courts?
The court think the affirmative of these propositions cannot
be maintained. And if it cannot, the plaintiff in error could not
be a citizen of the State of Missouri, within the meaning of the
Constitution of the United States, and, consequently, was not
entitled to sue in its courts.
It is true, every person, and every class and description of per-
sons, who were at the time of the adoption of the Constitution
recognized as citizens in the several States, became also citizens
of this new political body; but none other; it was formed by
them, and for them and their posterity, but for no one else. And
the personal rights and privileges guarantied to citizens of this
new sovereignty were intended to embrace those only who were
then members of the several State communities, or who should
afterwards, by birthright or otherwise, become members, accord-
ing to the provisions of the Constitution and the principles on
which it was founded. It was the union of those who were at
that time members of distinct and separate political communi-
ties into one political family, whose power, for certain specified
purposes, was to extend over the whole territory of the United
States. And it gave to each citizen rights and privileges outside
of his State which he did not before possess, and placed him in
every other State upon a perfect equality with its own citizens
as to rights of person and rights of property ; it made him a citi-
zen of the United States.
It becomes necessary, therefore, to determine who were citizens
of the several States when the Constitution was adopted. And in
order to do this, we must recur to the Governments and institu-
tions of the thirteen colonies, when they separated from Great
SCOTT V. SANDFORD. 85
Britain and formed new sovereignties, and took their places in
the family of independent nations. We must inquire who, at
that time, were recognized as the people or citizens of a State,
whose rights and liberties had been outraged by the English
Government ; and who declared their independence, and assumed
the powers of Government to defend their rights by force of
arms.
In the opinion of the court, the legislation and histories of the
times, and the language used in the Declaration of Independence,
show, that neither the class of persons who had been imported
as slaves, nor their descendants, whether they had become free
or not, were then acknowledged as a part of the people, nor
intended to be included in the general words used in that mem-
orable instrument. . . .
They had for more than a century before been regarded as
beings of an inferior order, and altogether unfit to associate with
the white race, either in social or political relations; and so far
inferior, that they had no rights which the white man was bound
to respect ; and that the negro might justly and lawfully be re-
duced to slavery for his benefit. ^ . . .
The legislation of the different colonies furnishes positive and
indisputable proof of this fact. . . . The language of the
Declaration of Independence is equally conclusive. . . . This
state of public opinion had undergone no change when the Con-
stitution was adopted, as is equally evident from its provisions
1 These statements of the Chief Justice as to the legal status of free
negroes in the several States at the time of the adoption of the Constitution
were not well founded, as was pointed out by Mr. Justice Curtis in his dis-
senting opinion. In New Hampshire, Massachusetts, New York, New Jersey,
and even in the slave-holding State of North Carolina, aU free native-born
inhabitants, even though descended from slaves, were not only citizens but
also voters. In State v. Manuel (1838), 4 Devereaux and Battle, 20, 25, the
Supreme Court of North Carolina said, " It is a matter of universal notoriety
that .... free persons, without regard to color claimed and exercised
the franchise, until it was taken from free men of color a few years since
[1835] by our amended Constitution." This change of attitude toward free
negroes was not confined to North Carolina, and by the time the Dred Scott
case was decided they were quite generally disfranchised, and in many States,
especially those in which slavery existed, they were not recognized as citizens.
This whole subject has been well treated by Gordon E. Sherman in ' ' Eman-
cipation and Citizenship," in the Tale Law Journal, XV, 263. See also
Report on Citizenship in the United States, House Document, No. 326, 59th
Congress, 2nd Session, and the learned Opinion of the Justices (1857), 44
Maine, 507, given in answer to an inquiry from the legislature as to whether
free colored persons of African descent were authorized to vote under the
constitution of Maine.
86 CASES ON CONSTITUTIONAL LAW.
and language. . . . But there are two clauses in the Consti-
tution which point directly and specifically to the negro race aa
a separate class of persons, and show clearly that they were not
regarded as a portion of the people or citizens of the Govern-
ment then formed.
One of these clauses reserves to each of the thirteen States
the right to import slaves until the year 1808, if it thinks proper.
. . . And by the other provision the States pledge themselves
to each other to maintain the right of property of the master,
by delivering up to him any slave who may have escaped from his
service, and be found within their respective territories. . . .
The legislation of the States therefore shows, in a manner
not to be mistaken, the inferior and subject condition of that
race at the time the Constitution was adopted, and long after-
wards, throughout the thirteen States by which that instrument
was framed ; and it is hardly consistent with the respect due to
these States, to suppose that they regarded at that time, as fel-
low-citizens and members of the sovereignty, a class of beings
whom they had thus stigmatized ; whom, as we are bound, out of
respect to the State sovereignties, to assume they had deemed it
just and necessary thus to stigmatize, and upon whom they had
impressed such deep and enduring marks of inferiority and
degradation ; or, that when they met in convention to form the
Constitution, they looked upon them as a portion of their con-
stituents, or designed to include them in the provisions so care-
fully inserted for the security and protection of the liberties
and rights of their citizens. It cannot be supposed that they
intended to secure to them rights, and privileges, and rank, in
the new political body throughout the Union, which every one
of them denied within the limits of its own dominion. More
especially, it cannot be believed that the large slave-holding
States regarded them as included in the word citizens, or would
have consented to a Constitution which might compel them to
receive them in that character from another State. For if they
were so received, and entitled to the privileges and immunities
of citizens, it would exempt them from the operation of the spe-
cial laws and from the police regulations which they considered
to be necessary for their own safety. It would give to persons
of the negro race, who were recognized as citizens in any one
State of the Union, the right to enter every other State when-
ever they pleased, singly or in companies, without pass or pass-
port, and without obstruction, to sojourn there as long as they
pleased, to go where they pleased at every hour of the day or
SCOTT V. SANDFORD. 87
night without molestation, unless they committed some violation
of law for which a white man would be punished; and it would
give them the full liberty of speech in public and in private
upon all subjects upon which its own citizens might speak; to
hold public meetings upon political affairs, and to keep and
carry arms wherever they went. And all this would be done
in the face of the subject race of the same color, both free and
slaves, and inevitably producing discontent and insubordination
among them, and endangering the peace and safety of the
State. . . .
To all this mass of proof we have still to add, that Congress
has repeatedly legislated upon the same construction of the Con-
stitution that we have given. . . .
The conduct of the Executive Department of the Government
has been in perfect harmony upon this subject with this course
of legislation. The question was brought officially before the
late "William Wirt, when he was the Attorney General of the
United States, in 1821, and he decided that the words ' ' citizens
of the United States" were used in the acts of Congress in the
same sense as in the Constitution ; and that free persons of color
were not citizens, within the meaning of the Constitution and
laws; and this opinion has been confirmed by that of the late
Attorney General, Caleb Cushing, in a recent case, and acted
upon by the Secretary of State, who refused to grant passports
to them as "citizens of the United States."
But it is said that a person may be a citizen, and entitled to
that character, although he does not possess all the rights which
may belong to other citizens; as, for example, the right to vote,
or to hold particular offices ; and that yet, when he goes into an-
other State, he is entitled to be recognized there as a citizen,
although the State may measure his rights by the rights which
it allows to persons of a like character or class resident in the
State, and refuse to him the full rights of citizenship.
This argument overlooks the language of the provision in the
Constitution of which we are speaking.
Undoubtedly, a person may be a citizen, that is, a member of
the community who form the sovereignty, although he exercises
no share of the political power, and is incapacitated from hold-
ing particular offices. Women and minors, who form a part of
the political family, cannot vote; and when a property quali-
fication is required to vote or hold a particular office, those who
have not the necessary qualification cannot vote or hold office,
yet they are citizens.
88 CASES ON CONSTITUTIONAL LAW.
So, too, a person may be entitled to vote by the law of the
State, who is not a citizen even of the State itself. And in some
of the States of the Union foreigners not naturalized are allowed
to vote. And the State may give the right to free negroes and
mulattoes, but that does not make them citizens of the State,
and still less of the United States. And the provision in the Con-,
stitution giving privileges and immunities in other States, does
not apply to them.
Neither does it apply to a person who, being the citizen of a
State, migrates to another State. For then he becomes subject
to the laws of the State in which he lives, and he is no longer
a citizen of the State from whichTie removed. . . .
But so far as mere rights of persons are concerned, the pro-
vision in question is confined to citizens of a State who are tem-
porarily in another State without taking up their residence there.
It gives them no political rights in the State as to voting or hold-
ing office, or in any other respect. For a citizen of one State
has no right to participate in the government of another. But
if he ranks as a citizen in the State to which he belongs, within
the meaning of the Constitution of the United States, then, when-
ever he goes into another State, the Constitution clothes him, as
to the rights of person, with all the privileges and immunities
which belong to citizens of the State. And if persons of the Afri-
can race are citizens of a State, and of the United States, they
would be entitled to all of these privileges and immunities in
every State, and the State could not restrict them; for they
would hold these privileges and immunities under the para-
mount authority of the Federal Government, and its courts would
be bound to maintain and enforce them, the Constitution and
laws of the State to the contrary notwithstanding. And if the
States could limit or restrict them, or place the party in an
inferior grade, this clause of the Constitution would be unmean-
ing, and could have no operation; and would give no rights to
the citizen when in another State. He would have none but
what the State itself chose to allow him. This is evidently not
the construction or meaning of the clause in question. It guar-
anties rights to the citizen, and the State cannot withhold them.
And these rights are of a character and would lead to conse-
quences which make it absolutely certain that the African race
were not included under the name of citizens of a State, and
were not in the contemplation of the framers of the Constitution
when these privileges and immunities were provided for the pro-
tection of the citizens in other States. . . .
SCOTT V. SANDFORD. 89
What the construction [of the Constitution] was at that time
[when it was framed], we think can hardly admit of doubt. We
have the language of the Declaration of Independence and of the
Articles of Confederation, in addition to the plain words of the
Constitution itself ; we have the legislation of the different States,
before, about the time, and since, the Constitution was adopted ;
we have the legislation of Congress, from the time of its adop-
tion to a recent period ; and we have the constant and uniform
action of the Executive Department, all concurring together,
and leading to the same result. And if anything in relation to
the construction of the Constitution can be regarded as settled,
it is that which we now give to the word "citizen" and the
word "people."
And upon a full and careful consideration of the subject, the
court is of opinion, that, upon the facts stated in the plea in
abatement, Dred Scott was not a citizen of Missouri within the
meaning of the Constitution of the United States, and not en-
titled as such to sue in its courts; and, consequently, that the
Circuit Court had no jurisdiction of the case, and that the judg-
ment on the plea in abatement is erroneous. . . . [Here fol-
lows a discussion of the judicial authority of the court to exam-
ine any question in the case other than that of the jurisdiction
of the Circuit Court. The court determines that it has the
requisite authority.]
We proceed, therefore, to inquire whether the facts relied on
by the plaintiff entitled him to his freedom. . . .
In considering this part of the controversy, two questions arise :
1. Was he, together with his family, free in Missouri by reason of
the stay in the territory of the United States hereinbefore men-
tioned? And 2. If they were not, is Scott himself free by rea-
son of his removal to Rock Island, in the State of Illinois, as
stated in the above admissions?
We proceed to examine the first question.
The act of Congress, upon which the plaintiff relies, declares
that slavery and involuntary servitude, except as a punishment
for crime, shall be forever prohibited in all that part of the ter-
ritory ceded by France, under the name of Louisiana, which lies
north of thirty-six degrees thirty minutes north latitude, and not
included within the limits of Missouri. And the difficulty which
meets us at the threshold of this part of the inquiry is, whether
Congress was authorized to pass this law, under any of the pow-
ers granted to it by the Constitution ; for if the authority is not
given by that instrument, it is the duty of this court to declare
90 CASES ON CONSTITUTIONAL LAW.
it void and inoperative, and incapable of conferring freedom
upon any one who is held as a slave under the laws of any one
of the States.
The counsel for the plaintiff has laid much stress upon that
article in the Constitution which confers on Congress the power
' ' to dispose of and make all needful rules and regulations respect-
ing the territory or other property belonging to the United,
States ; ' ' but, in the judgment of the court, that provision has no
bearing on the present controversy, and the power there given,
whatever it may be, is confined, and was intended to be confined,
to the territory which at that time belonged to, or was claimed by,
the United States, and was within their boundaries as settled by
the treaty with Great Britain, and can have no influence upon a
teiritory afterwards acquired from a foreign Government. It
was a special provision for a known and particular territory, and
to meet a present emergency, and nothing more. . . .
At the time when the Territory in question was obtained by
cession from France, it contained no population fit to be asso-
ciated together and admitted as a State; and it therefore was
absolutely necessary to hold possession of it, as a Territory be-
longing to the United States, until it was settled and inhabited by
a civilized community capable of self-government, and in a con-
dition to be admitted on equal terms with the other States as a
member of the Union. But, as we have before said, it was acquired
by the General Government, as the representative and trustee of
the people of the United States, and it must therefore be held in
that character for their common and equal benefit ; for it was the
people of the several States, acting through their agent and repre-
sentative, the Federal Government, who in fact acquired the Ter-
ritory in question, and the Government holds it for their common
use until it shall be associated with the other States as a member
of the Union.
But until that time arrives, it is undoubtedly necessary that
some Government should be established, in order to organize
society, and to protect the inhabitants in their persons and prop-
erty; and as the people of the United States could act in this
matter only through the Government which represented them,
and through which they spoke and acted when the Territory was
obtained, it was not only within the scope of its powers, but it
was its duty to pass such laws and establish such a Government
as would enable those by whose authority they acted to reap the
advantages anticipated from its acquisition, and to gather there
a population which would enable it to assume the position to
SCOTT V. SANDFORD. 91
which it was destined among the States of the Union. . . .
But the power of Congress over the person or property of a citi-
zen can never be a mere discretionary power under our Constitu-
tion and form of Government. The powers of the Government
and the rights and privileges of the citizen are regulated and
plainly defined by the Constitution itself. . . . Thus the
rights of property are united with the rights of person, and
placed on the same ground by the fifth amendment to the Con-
stitution, which provides that no person shall be deprived of life,
liberty, and property, without due process of law. And an act
of Congress which deprives a citizen of the United States of his
liberty or property, merely because he came himself or brought
his property into a particular Territory of the United States, and
who had committed no ofEense against the laws, could hardly be
dignified with the name of due process of law. . . .
It seems, however, to be supposed, that there is a diiference
between property in a slave and other property, and that differ-
ent rules may be applied to it in expounding the Constitution of
the United States. And the laws and usages of nations, and the
writings of eminent jurists upon the relation of master and slave
and their mutual rights and duties, and the powers which Gov-
ernments may exercise over it, have been dwelt upon in the argu-
ment.
But in considering the question before us, it must be borne in
mind that there is no law of nations standing between the people
of the United States and their Government, and interfering with
their relation to each other. The powers of the Government, and
the rights of the citizen under it, are positive and practical regu-
lations plainly written down. The people of the United States
have delegated to it certain enumerated powers, and forbidden it
to exercise others. It has no power over the person or property
of a citizen but what the citizens of the United States have
granted. And no laws or usages of other nations, or reasoning
of statesmen or jurists upon the relations of master and slave, can
enlarge the powers of the Government, or take from the citizens
the rights they have reserved. And if the Constitution recognizes
the right of property of the master in a slave, and makes no dis-
tinction between that description of property and other property
owned by a citizen, no tribunal, acting under the authority of the
United States, whether it be legislative, executive, or judicial,
has a right to draw such a distinction, or deny to it the benefit
of the provisions and guarantees which have been provided for
92 CASES ON CONSTITUTIONAL LAW.
the protection of private property against the encroachments of
the Government.
Now, as we have already said in an earlier part of this opinion,
upon a different point, the right of property in a slave is dis-
tinctly and expressly affirmed in the Constitution. The right to
traffic in it, like an ordinary article of merchandise and property,
was guaranteed to the citizens of the United States, in every State
that might desire it, for twenty years. And the Government in
express terms is pledged to protect it in all future time, if the
slave escapes from his owner. This is done in plain words — too
plain to be misunderstood. And no word can be found in the
Constitution which gives Congress a greater power over slave
property, or which entitles property of that kind to less protec-
tion than property of any other description. The only power
conferred is the power coupled with the duty of guarding and
protecting the owner in his rights.
Upon these considerations, it is the opinion of the court that
the act of Congress which prohibited a citizen from holding or
owning property of this kind in the territory of the United States
north of (the line therein mentioned, is not warranted by the Con-
stitution, and is therefore void ; and that neither Dred Scott him-
self, nor any of his family, were made free by being carried into
this territory ; even if they had been carried there by the owner,
with the intention of becoming a permanent resident. . . .
But there is another point in the case which depends upon
State power and State law. And it is contended, on the part of
the plaintiff, that he is made free by being taken to Rock Island,
in the State of Illinois, independently of his residence in the ter-
ritory of the United States ; and being so made free, he was not
again reduced to a state of slavery by being brought back to
Missouri.
Our notice of this part of the case will be very brief; for the
principle on which it depends was decided in this court, upon
much consideration, in the case of Strader et al. v. Graham, re-
ported in 10th Howard, 82. In that case, the slaves had been
taken from Kentucky to Ohio, with the consent of the owner,
and afterwards brought back to Kentucky. And this court held
that their status or condition, as free or slave, depended upon the
laws of Kentucky, when they were brought back into that State,
and not of Ohio ; and that this court had no jurisdiction to revise
the judgment of a State court upon its own laws. . . .
So in this case. As Scott was a slave when taken into the State
of Illinois by his owner, and was there held as such, and brought
SCOTT V. SANDFORD. 93
back in that character, his status, as free or slave, depended on
the laws of Missouri, and not of Illinois.
It has, however, been urged in the argument, that by the laws
of Missouri he was free on his return, and that this case, there-
fore, cannot be governed by the case of Strader et al. v. Graham,
where it appeared, by the laws of Kentucky, that the plaintiffs
continued to be slaves on their return from Ohio. But whatever
doubts or opinions may, at one time, have been entertained upon
this subject, we are satisfied, upon a careful examination of all
the cases decided in the State courts of Missouri referred to,
that it is now firmly settled by the decisions of the highest court
in the State, that Scott and his family upon their return were not
free, but were, by the laws of Missouri, the property of the de-
fendant ; and that the Circuit Court of the United States had no
jurisdiction, when, by the laws of the State, the plaintiff was a
slave, and not a citizen. . . .
Upon the whole, therefore, it is the judgment of this court, that
it appears by the record before us, that the plaintiff in error is
not a citizen of Missouri, in the sense in which that word is used
in the Constitution; and that the Circuit Court of the United
States, for that reason, had no jurisdiction in the case, and could
give no judgment in it. Its judgment for the defendant must,
consequently, be reversed, and a mandate issued, directing the
suit to be dismissed for want of jurisdiction. . . .
Me. Justice McLean and Mr. Justice Curtis dissented.
Note. — The court which heard the Dred Scott case consisted of nine
judges, all of whom delivered opinions, some of which were so discursive as
to make it difficult to connect them with the questions which the court was
asked to decide. Of the seven judges who concurred in the judgment an-
nounced by the Chief Justice, only three — Taney, Wayne, and Daniel, — held
that the plea in abatement was open and hence that the question of the status
of free negroes was before the court. Justice Catron held that the plea was
not open. Justice Grier evaded the question, and Justices Nelson and Camp-
bell based their opinions on grounds which made it unnecessary to pass upon
the question. Of the two dissenting justices. Justice Curtis held that the
plea was before the court and Justice McLean held that it was not. Six
judges — Taney, Wayne, Daniel, Grier, Campbell and Catron — held that the
Missouri Compromise was unconstitutional.
The historic importance of the Dred Scott case lies in the dicta in the
opinion of the Chief Justice rather than in the decision of the court that it
had no jurisdiction. Its immediate effect on public sentiment was largely
due to a feeling that the court's action was partisan. It is now k^own that
this feeling was well-founded. The case was twice argued. At the flrsu
hearing it appeared that the court would not consider the question of the
94 CASES ON CONSTITUTIONAL LAW.
constitutionality of the Missouri Compromise, and the opinion of Juftice
Nelson was then prepared to stand as the opinion of the court. Curtis, Life
of Benjamin Boibins Curtis, I, 80. But after the second argument the pro-
slavery judges determined to effect if possible a permanent settlement of the
status of slavery in the United States. The motive is clearly set forth by
Justice Wayne who said in his opinion, ' ' The case involves private rights
of value, and constitutional principles of the highest importance, about
which there had become such a difference of opinion, that the peace and
harmony of the country required the settlement of them by judicial deci-
sion." 19 Howard, 454-5. The efforts of Wayne and Catron, the two
judges who were most active in the attainment of this result, to win over
some of their colleagues may be traced in The Worhs of James Buchanan
(Moore, Ed.), X, 106 seq. For this reference I am indebted to Prof. E. S.
Corwin 's paper on The Dred Scott Decision. Contrary to the usual practice,
the court or some members of it allowed its decision to become known in
favored quarters before it was announced. The general scope of it was
known to Alexander H. Stephens as early as January, 1857. Ehodes, History
of the United States, II, 253. And Buchanan referred to the approaching de-
cision in his inaugural in which he besought acquiescence in it, "whatever
it might be." The decision was announced two days later and it has been
charged that it was purposely held up in order that Buchanan might in a
measure prepare public opinion for it. Although the charge has been several
times brought against the Supreme Court that certain of its decisions were
due to partisan considerations, this is the only authenticated instance of it.
The decision of the Supreme Court of Missouri in Scott's first case is re-
ported in 15 Mo. 682. George Ticknor Curtis' argument for Scott before
the Federal Supreme Court is given in his Constitutional History of the
United States, II, 499. For further accounts of the case and its conse-
quences, see Nicolay and Hay, Life of Lincoln, II, ch. 4; Ehodes, History of
the United States, II, 251 ; Hurd, The Law of Freedom and Bondage in the
United States, I, 527 ; Benton, Examination of the Dred Scott Decision, and
a learned note by the editor in Thayer, Cases on Constitutional Law, I, 493.
UNITED STATES v. WONG KIM ARK.
Supreme Court of the United States. 1898.
169 U. S. 649; 42 Lawyers' Ed. 890.
Appeal from the District Court of the United States for the
Northern District of California.
Mb. Justice Gray . . . delivered the opinion of the court. . . .
The question presented by the record is whether a child bom
in the United States, of parents of Chinese descent, who, at the
time of his birth, are subjects of the Emperor of China, but have
a permanent domicile and residence in the United States, and are
there carrying on business, and are not employed in any diplo-
matic or ofScial capacity under the Emperor of China, becomes
UNITED STATES v. WONG KIM AEE. 95
at the time of his birth a citizen of the United States, by virtue
of the first clause of the Fourteenth Amendment of the Constitu-
tion, "All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside."
I. In construing any act of legislation, whether a statute en-
acted by the legislature, or a constitution established by the
people as the supreme law of the land, regard is to be had not
only to all parts of the act itself, and of any former act of the
same law-making power, of which the act in question is an amend-
ment ; but also to the condition, and to the history, of the law as
previously existing, and in the light of which the new act must
be read and interpreted.
The Constitution of the United States, as originally adopted,
uses the words ' ' citizen of the United States, ' ' and ' ' natural-born
citizen of the United States. "...
The Constitution nowhere defines the meaning of these words,
either by way of inclusion or of exclusion, except in so far as this
is done by the affirmative declaration that "all persons born or
naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States." In this, as in other
respects, it must be interpreted in the light of the common law,
the principles and history of which were familiarly known to the
framers of the Constitution. Minor v. Happersett, 21 "Wall. 162 ;
Ex parte Wilson, 114 U. S. 417, 422 ; Boyd v. United States, 116
U. S. 616, 624, 625; Smith v. Alabama, 124 U. S. 465. The
language of the Constitution, as has been well said, could not be
understood without reference to the common law. I Kent Com.
336 ; Bradley, J., in Moore v. United States, 91 U. S. 270, 274.
II. The fundamental principle of the common law with regard
to English nationality was birth within the allegiance, also called
' ' ligealty, " " obedience, " " faith " or ' 'power, ' ' of the King. The
principle embraced all persons born within the King's allegiance
and subject to his protection. Such allegiance and protection
were mutual — as expressed in the maxim, protectio trahit sub-
jectionem, et suhjectio protectionem — and were not restricted to
natural-born subjects and naturalized subjects, or to those who
had taken an oath of allegiance ; but were predicable of aliens in
amity so long as they were within the kingdom. Children, born
in England, of such aliens, were therefore natural-bom subjects.
But the children, bom within the realm, of foreign ambassadors,
or the children of alien enemies, bom during and within their
96 CASES ON CONSTITUTIONAL LAW.
hostile occupation of part of the King's domains, were not natu-
ral-born subjects, because not born within the allegiance, the
obedience, or the power, or, as would be said at this day, within
the jurisdiction of the King. . . .
It thus clearly appears that by the law of England for the last
three centuries, beginning before the settlement of this country,
and continuing to the present day, aliens, while residing in the
dominions possessed by the Crown of England, were within the
allegiance, the obedience, the faith or loyalty, the protection, the
power, the jurisdiction of the English Sovereign; and therefore
every child born in England of alien parents was a natural-bom
subject, unless the child of an ambassador or other diplomatic
agent of a foreign State, or of an alien enemy in hostile occupa-
tion of the place where the child was born.
III. The same rule was in force in all the English Colonies
upon this continent down to the time of the Declaration of Inde-
pendence, and in the United States afterwards, and continued to
prevail under the Constitution as originally established. . . .
IV. It was contended by one of the learned counsel for the
United States that the rule of the Eoman law, by which the*citi-
zenship of the child followed that of the parent, was the true rule
of international law as now recognized in most civilized countries,
and had superseded the rule of the common law, depending on
birth within the realm, originally founded on feudal considera-
tions. . . . [The court here examines the laws of the various
European countries as to citizenship and finds that they greatly
differed.]
There is, therefore, little ground for the theory, that at the
time of the adoption of the Fourteenth Amendment of the Consti-
tution of the United States, there was any settled or definite rule
of international law, generally recognized by civilized nations,
inconsistent with the ancient rule of citizenship by birth within
the dominion.
Nor can it be doubted that it is the inherent right of every
independent nation to determine for itself, and according to its
own constitution and laws, what classes of persons shall be en-
titled to its citizenship
Passing by questions once earnestly controverted, but finally
put at rest by the Fourteenth Amendment of the Constitution, it
is beyond doubt that, before the enactment of the Civil Rights Act
of 1866 or the adoption of the Constitutional Amendment, all
white persons, at least, born within the sovereignty of the United
UNITED STATES v. WONG KIM ARK. 97
States, whether children of citizens or of foreigners, excepting
only children of ambassadors or public ministers of a foreign
government, were native-born citizens of the United States.
V. In the forefront, both of the Fourteenth Amendment of the
Constitution, and of the Civil Rights Act of 1866, the fundamen-
tal principle of citizenship by birth within the dominion was re-
aiSrmed in the most explicit and comprehensive terms. . . .
The first section of the Fourteenth Amendment of the Consti-
tution begins with the words, ' ' All persons bom or naturalized in
the United States, and subject to the jurisdiction thereof, are citi-
zens of the United States and of the State wherein they reside. ' '
As appears from the face of the amendment, as well as from the
history of the times, this was not intended to impose any new
restrictions upon citizenship, or to prevent any persons from be-
coming citizens by the fact of birth within the United States, who
would thereby have become citizens according to the law existing
before its adoption. It is declaratory in form, and enabling and
extending in effect. Its main purpose doubtless was, as has been
often recognized by this court, to establish the citizenship of free
negroes which had been denied in the opinion delivered by Chief
Justice Taney in Dred Scott v. Sandford (1857), 19 How. 393;
and to put it beyond doubt that all blacks, as well as whites, born
or naturalized within the jurisdiction of the United States, are
citizens of the United States. The Slaughterhouse Cases (1873),
16 Wall. 36, 73; Strauder v. West Virginia (1879), 100 U. S.
303, 306; Ex parte Virginia (1879), 100 U. S. 339, 345; Neal v.
Delaware (1880), 103 U. S. 370, 386 ; Elk v. Wilkins (1884), 112
U. S. 94, 101. But the opening words, "All persons born," are
general, not to say universal, restricted only by place and juris-
diction, and not by color or race — as was clearly recognized in all
the opinions delivered in the Slaughter-House Cases. . . .
The real object of the Fourteenth Amendment of the Constitu-
tion, in qualifying the words, "All persons born in the United
States, ' ' by the addition, ' ' and subject to the jurisdiction there-
of," would appear to have been to exclude, by the fewest and
fittest words (besides children of members of the Indian tribes,
standing in a peculiar relation to the National Government, un-
known to the common law), the two classes of cases — children
born of alien enemies in hostile occupation, and children of
diplomatic representatives of a foreign state — both of which, as
has already been shown, by the law of England, and by our own
law, from the time of the first settlement of the English colonies
in America, had been recognized exceptions to the fundamental
B. C. L.— 7
98 CASES ON CONSTITUTIONAL LAW.
rule of citizenship by birth within the country. Calvin's Case,
7 Rep. 1, 18&; Coekburn on Nationality, 7; Dicey, Conflict of
Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155; 2
Kent Com. 39, 42 . . .
From the first organization of the National Government under
the Constitution, the naturalization acts of the United States in
providing for the admission of aliens to citizenship by judicial
proceedings, uniformly required every applicant to have resided
for a certain time "within the limits and under the jurisdiction
of the United States ; ' ' and thus applied the words ' ' under the
jurisdiction of the United States" to aliens residing here before
they had taken an oath to support the Constitution of the United
States, or had renounced allegiance to a foreign government.
Acts of March 26, 1790, c. 3 ; January 29, 1795, c. 20, § 1 ; June
18, 1798, c. 54, §§ 1, 6; 1 Stat. 103, 414, 566, 568; April 14, 1802,
c. 28, § 1; 2 Stat. 153; March 22, 1816, c. 32, § 1; 3 Stat, 258;
May 24, 1828, c. 116, § 2 ; 4 Stat. 310 ; Rev. Stat. § 2165. And,
from 1795, the provisions of those acts, which granted citizenship
to foreign-born children of American parents, described such chil-
dren as "born out of the jurisdiction and limits of the United
States." Acts of January 29, 1795, c. 20, § 3 ; 1 Stat. 415 ; April
14, 1802, c. 28, § 4 ; 2 Stat. 155 ; February 10, 1855, e. 71 ; 10 Stat.
604; Rev. Stat. §§ 1993, 2172. Thus Congress, when dealing with
the question of citizenship in that aspect, treated aliens residing
in this country as "under the jurisdiction of the United States,"
and American parents residing abroad as ' ' out of the jurisdiction
of the United States."
The words "in the United States, and subject to the jurisdic-
tion thereof," in the first sentence of the Fourteenth Amendment
of the Constitution, must be presumed to have been understood
and intended by the Congress which proposed the Amendment,
and by the legislatures which adopted it, in the same sense in
which the like words had been used by Chief Justice Marshall in
the well known ease of The Exchange ; and as the equivalent of
the words "within the limits and under the jurisdiction of the
United States, ' ' and the converse of the words, ' ' out of the limits
and jurisdiction of the United States, ' ' as habitually used in the
naturalization acts. This presumption is confirmed by the use
of the word "jurisdiction" in the last clause of the same section
of the Fourteenth Amendment, which forbids any State to ' ' deny
to any person within its jurisdiction the equal protiection of the
laws." It is impossible to construe the words "subject to the
jurisdiction thereof, ' ' in the opening sentence, as less comprehen-
UNITED STATES v. WONG KIM ARK. 99
sive tHan the words ' ' within its jurisdiction, ' ' in the concluding
sentence of the same section ; or to hold that persons "within the
jurisdiction" of one of the States of the Union are not "subject
to the jurisdiction of the United States."
These considerations confirm the view, already expressed in
this opinion, that the opening sentence of the Fourteenth Amend-
ment is throughout affirmative and declaratory, intended to allay
doubts and to settle controversies which had arisen, and not to
impose any new restrictions upon citizenship. . . .
This sentence of the Fourteenth Amendment is declaratory of
existing rights, and affirmative of existing law, as to each of the
qualifications therein expressed — "born in the United States,"
"naturalized in the United States," and "subject to the juris-
diction thereof" — in short, as to everything relating to the acqui-
sition of citizenship by facts occurring within the limits of the
United States. But it has not touched the acquisition of citizen-
ship by being born abroad of American parents; and has left
that subject to be regulated, as it had always been, by Congress,
in the exercise of the power conferred by the Constitution to
establish an uniform rule of naturalization.
The effect of the enactments conferring citizenship on foreign-
born children of American parents has been defined, and the
fundamental rule of citizenship by birth within the dominion of
the United States, notwithstanding alienage of parents, has been
affirmed, in well considered opinions of the executive depart-
ments of the Government, since the adoption of the Fourteenth
Amendment of the Constitution. . . .
These opinions go to show that, since the adoption of the Four-
teenth Amendment, the executive branch of the Government, the
one charged with the duty of protecting American citizens abroad
against unjust treatment by other nations, has taken the same
view of the act of Congress of 1855, declaring children born
abroad of American citizens to be themselves citizens, which, as
mentioned in a former part of this opinion, the British Foreign
Office has taken of similar acts of Parliament — holding that such
statutes cannot, consistently with our own established rule of
citizenship by birth in this country, operate extra-territorially
so far as to relieve any person born and residing in a foreign
country, and subject to its government, from his allegiance to
that country. . . .
The foregoing considerations and authorities irresistibly lead
us to these conclusions: the Fourteenth Amendment affirms the
ancient and fundamental rule of citizenship by birth within the
100 CASES ON CONSTITUTIONAL LAW.
territory, in the allegiance and under the protection of the coun-
try, including all children here born of resident aliens, with the
exceptions or qualifications (as old as the rule itself) of children
of foreign sovereigns or their ministers, or born on foreign public
ships, or of enemies within and during hostile occupation of part
of our territory, and with the single additional exception of chil-
dren of members of the Indian tribes owing direct allegiance to
their several tribes. The Amendment, in clear words and in man-
ifest intent, includes the children born, within the territory of the
United States, of all other persons, of whatever race or color,
domiciled within the United States. Every citizen or subject of
another country, while domiciled here, is within the allegiance
and protection, and consequently subject to the jurisdiction of the
United States. His allegiance to the United States is direct and
immediate, and, although but local and temporary, continuing
only so long as he remains within our territory, is yet, in the
words of Lord Coke, in Calvin's Case, 7 Rep. 6a, "strong enough
to make a natural subject, for if he hath issue here, that issue is
a natural-born subject;" and his child, as said by Mr. Binney in
his essay before quoted, "if born in the country, is as much a
citizen as the natural-born child of a citizen, and by operation
of the same principle. ' ' It can hardly be denied that an alien is
completely subject to the political jurisdiction of the country in
which he resides^seeing that, as said by Mr. Webster, when
Secretary of State, in his Report to the President on Thrasher's
Case in 1851, and since repeated by this court, "independently
of a residence with intention to continue such residence; inde-
pendently of any domiciliation; independently of the taking of
any oath of allegiance or of renouncing any former allegiance,
it is well known that, by the public law, an alien, or a stranger
born, for so long a time as he continues within the dominions
of a foreign government, owes obedience to the laws of that gov-
ernment, and may be punished for treason, or other crimes, as a
native-born subject might be, unless his case is varied by some
treaty stipulations." Ex. Doc. H. R. No. 10, 1st sess. 32d Con-
gress, p. 4; 6 Webster's Works, 526; United States v. Carlisle, 16
Wall. 147, 155; Calvin's Case, 7 Rep. 6a; EUesmere on Postnati,
63 ; 1 Hale P. C. 62 ; 4 Bl. Com. 74, 92.
To hold that the Fourteenth Amendment of the Constitution
excludes from citizenship the children, bom in the United States,
of citizens or subjects of other countries, would be to deny citizen-
ship to thousands of persons of English, Scotch, Irish, German or
UNITED STATES v. WONG KIM ARK. 101
other European parentage, who have always been considered and
treated as citizens of the United States.
VI. Whatever considerations, in the absence of a controlling
provision of the Constitution, might influence the legislative or
the executive branch of the Government to decline to admit per-
sons of the Chinese race to the status of citizens of the United
States, there are none that can restrain or permit the judiciary to
refuse to give f uU effect to the peremptory and explicit language
of the Fourteenth Amendment, which declares and ordains that
' ' All persons born or naturalized in the United States, and sub-
ject to the jurisdiction thereof, are citizens of the United States."
Chinese persons, born out of the United States, remaining sub-
jects of the Emperor of China, and not having become citizens of
the United States, are entitled to the protection of and owe alle-
giance to the United States, so long as they are permitted by
the United States to reside here; and are "subject to the juris-
diction thereof, ' ' in the same sense as all other aliens residing in
the United States. Yick Wo v. Hopkins (1886), 118 U. S. 356
Law Ow Bew v. United States (1892), 144 U. S. 47, 61, 62
Fong Yue Ting v. United States (1893), 149 U. S. 698, 724
Lem Moon Sing v. United States (1895), 158 U. S. 538, 547
Wong Wing v. United States (1896), 163 U. S. 228, 238. . . .
The Fourteenth Amendment of the Constitution, in the declara-
tion that "aU persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United
States and of the States wherein they reside," contemplates two
sources of citizenship, and two only: birth and naturalization.
Citizenship by naturalization can only be acquired by naturaliza-
tion under the authority and in the forms of law. But citizenship
by birth is established by the mere fact of birth under the circum-
stances defined in the Constitution. Every person bom in the
United States, and subject to the jurisdiction thereof, becomes at
once a citizen of the United States, and needs no naturalization.
A person born out of the jurisdiction of the United States can
only become a citizen by being naturalized, either by treaty, as in
the case of the annexation of foreign territory, or by authority of
Congress, exercised either by declaring certain classes of persons
to be citizens, as in the enactments conferring citizenship upon
foreign-bom children of citizens, or by enabling foreigners indi-
vidually to become citizens by proceedings in the judicial tribu-
nals, as in the ordinary provisions of the naturalization acts.
The power of naturalization, vested in Congress by the Consti-
tution, is a power to confer citizenship, not a power to take it
102 CASES ON CONSTITUTIONAL LAW.
away. "A naturalized citizen," said Chief Justice Marshall,
' ' becomes a member of the society, possessing all the rights of a
native citizen, and standing, in the view of the Constitution, on
the footing of a native. The Constitution does not authorize Con-
gress to enlarge or abridge those rights. The simple power of
the National Legislature is to prescribe a uniform rule of natur-
alization, and the exercise of this power exhausts it, so far as
respects the individual. The Constitution then takes him up, and,
among other rights, extends to him the capacity of suing in the
courts of the United States, precisely under the game circum-
stances under which a native might sue." Osbom v. United
States Bank, 9 Wheat. 738, 827. Congress having no power to
abridge the rights conferred by the Constitution upon those who
have become naturalized citizens by virtue of "acts of Congress,
a fortiori no act or omission of Congress, as to providing for the
naturalization of parents or children of a particular race, can
affect citizenship acquired as a birth-right, by virtue of the Con-
stitution itself, without any aid of legislation. The Fourteenth
Amendment, while it leaves the power where it was before, in Con-
gress, to regulate naturalization, has conferred no authority upon
Congress to restrict the effect of birth, declared by the Constitu-
tion to constitute a sufficient and complete right to citizenship.
No one doubts that the Amendment, as soon as it was promul-
gated, applied to persons of African descent born in the United
States, wherever the birthplace of their parents might have been ;
and yet, for two years afterwards, there was no statute author-
izing persons of that race to be naturalized. If the omission or
the refusal of Congress to permit certain classes of persons to be
made citizens by naturalization could be allowed the effect of cor-
respondingly restricting the classes of persons who should be-
come citizens by birth, it would be in the power of Congress, at
any time, by striking negroes out of the naturalization laws, and
limiting those laws, as they were formerly limited, to white per-
sons, to defeat the main purpose of the Constitutional Amend-
ment.
The fact, therefore, that acts of Congress or treaties have not
permitted Chinese persons born out of this country to become
citizens by naturalization, cannot exclude Chinese persons born
in this country from the operation of the broad and clear words
of the Constitution, "All persons born in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States." . . .
The evident intention, and the necessary effect, of the submis-
tJNiTED STATES v. WONG KlM ARK. 103
sion of this case to the decision of the court upon the facts agreed
by the parties, were to present for examination the single ques-
tion, stated at the beginning of this opinion, namely, whether a
child born in the United States, of parents of Chinese descent,
who, at the time of his birth, are subjects of the Emperor of
China, but have a permanent domicile and residence in the United
States, and are there carrying on business, and are not employed
in any diploijiatie or ofSeial capacity under the Emperor of China,
becomes at the time of his birth a citizen of the United States.
For the reasons above stated, this court is of opinion that the
question must be answered in the affirmative. Order affirmed.
Mr. Chief Justice Fuller, with whom concurred Mr. Jus-
tice Harlan, dissenting. . . .
Note. — The opinion in the principal case is a masterly exposition, un-
fortunately too long to be re-printed in full, of the law of citizenship in the
United States, England, and the chief countries on the Continent. The whole
merits careful study. The question of citizenship in the United States has
been made much more complicated than in most countries because of the
presence of large numbers of people belonging to races to which the dom-
inant race was unwilling to accord the status of citizen. Antedating the
whites themselves were the native Indians who have always occupied an
anomalous position in American law. See Cherokee Nation v. Georgia
(1831), 5 Peters, 1; Worcester v. Georgia (1832), 6 Peters, 515; Elk v.
Wilkins (1884), 112 U. S. 94; The Cherokee Trust Funds (1886), 117 U. S.
288; United States v. Kagama (1886), 118 U. S. 375; Lone Wolf v. Hitch-
cock (1903), 187 U. S. 553; United States v. Sandoval (1913), 231 U. S. 28,
and a learned paper by J. B. Thayer on " A People without Law, " in his
Legal Essays, 91. The introduction of African slaves and the gradual
emancipation of members of that race created another difficult situation
which is elaborately discussed in the case of Dred Scott v. Sandford (1857),
19 Howard, 398. Slaves of course were never recognized as citizens.
Whether f reedmen should be so recognized was a question variously answered
in the different States until settled by the adoption of the Fourteenth
Amendment. The annexation of Porto Eico and the Philippines has brought
under the jurisdiction of the United States other groups of people who owe
allegiance to the United States but who are not citizens thereof. Gonzales
V. Williams (1904), 192 U. S. 1. It is now becoming common to apply the
term "nationals" to all persons owing allegiance to a country whether or
not they are recognized as citizens of that country.
Citizenship in the United States and citizenship in a State are distinct
and may be separately acquired. United States v. Cruikshank (1876), 92
U. S. 542. A resident of the District of Columbia may be a citizen of the
United States, but is not a citizen of any State, Hepburn v. Ellzey (1804),
2 Cranch. 445, and it would seem that one might be a citizen of a State with-
out being a citizen of the United States. Hammerstein v. Lyne (1912), 200
Fed. 165 but contra, City of Minneapolis v. Eeum (1893), 56 Fed. 576. A
State cannot make an alien a citizen of the United States, Lang v. Bandall
104 CASES ON CONSTITUTIONAL LAW.
(1876), 4 Dill. 425, although it may confer upon an alien all the privileges
which it confers upon its citizens. In the Federal laws no distinction is
made between native-born and naturalized citizens except as to eligibility to
the presidency and vice-presidency. Osborn v. Bank of the United States
(1824), 9 Wheaton, 738; Boyd v. Thayer (1892), 143 U. S. 135; Luria v.
United States (1913), 231 U. S. 9.
Naturalization is the process by which an alien is converted into a citizen.
This is usually accomplished by the individual alien's conforming to the re-
quirements of the Federal statute, but there are many instances of collec-
tive naturalization. On the conclusion of the treaty of peace of 1783 all
persons then adhering to the United States, whether born in the country or
not, were absolved of their allegiance to Grreat Britain, while adherents of
Great Britain remained British subjects. Mcllvaine v. Coxe's Lessee
(1808), 4 Cranch. 209; Inglis v. Trustees (1830), 3 Peters, 99; Shanks v.
Dumont (1830), 3 Peters, 242. The transfer of territory from one country
to another necessarily involves a transfer of the allegiance of its inhabitants,
but the latter do not necessarily become citizens of their new country. This
is exemplified in~the present status of the Porto Eicans and Filipinos. But
all the citizens of the ceded territory may be made citizens at once, as was
done in the ease of Texas. Coutzen v. United States (1900), 179 U. S. 191.
The admission of a Territory to the Union may also operate as a collective
naturalization of its inhabitants. Boyd v. Thayer (1892), 143 U. S. 135.
"All persons who were citizens of the Eepublic of Hawaii on August 12,
1898," the day of the formal transfer of sovereignty to the United States,
were collectively "declared to be citizens of the United States and citizens
of the Territory of Hawaii" by the act of Congress of April 30, 1900.
31 Stat, at Large, 141. For many other cases arising in connection with
naturalization, see Moore, Digest of International Law, III, ch. x, a learned
note in Scott, Cases on International Law, 397, and A Eeport on Citizenship
of the United States, House Doc. 326, 59th Congress, 2d Session.
Section 2. Peivileges and Immunities op Citizens
OF the United States.
No state shaU make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States.
Constitution of the United States, Amendment XIV, § 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.
Constitution of the United States, Amendment XV.
SLAUGHTER-HOUSE CASES.
Supreme Court of the United States. 1873.
16 WaUace, 36; 21 Lawyers' Ed. 394.
Error to the Supreme Court of Louisiana.
[The legislature of Louisiana enacted a law whereby it created
a corporation, The Crescent City Live-Stock Landing and
SLAUGHTER-HOUSE CASES. 105
Slaughter-House Company, to which it granted a monopoly with-
in the City of New Orleans of the landing and slaughtering of
animals intended for food. This company was required to permit
any other person to slaughter animals in their slaughter-houses
and a maximum charge for such service was fixed. The butchers
of New Orleans contest the validity of the act on the ground
that it is contrary to the Thirteenth and Fourteenth Amendments
of the Constitution.]
Mk. Justice Miller . . . delivered the opinion of the
court. . . .
The plaintiffs in error accepting this issue, allege that the
statute is a violation of the Constitution of the United States in
these several particulars :
That it creates an involuntary servitude forbidden by the thir-
teenth article of amendment;
That it abridges the privileges and immunities of citizens of
the United States ;
That it denies to the plaintiffs the equal protection of the laws ;
and.
That it deprives them of their property without due process of
law; contrary to the provisions of the first section of the four-
teenth article of amendment.
This court is thus called upon for the first time to give con-
struction to these articles. . . .
The first section of the fourteenth article, to which our atten-
tion is more specially invited, opens with a definition of citizen-
ship — not only citizenship of the United States, but citizenship of
the States. No such definition was previously found in the Con-
stitution, nor had any attempt been made to define it by act of
Congress. It had been the occasion of much discussion in the
courts, by the executive departments, and in the public journals.
It had been said by eminent judges that no man was a citizen of
the United States except as he was a citizen of one of the States
composing the Union. Those, therefore, who had been born and
resided always in the District of Columbia or in the Territories,
though within the United States, were not citizens. Whether this
proposition was sound or not had never been judicially decided.
But it bad been held by this court, in the celebrated Dred Scott
case, only a few years before the outbreak of the civil war, that
a man of African descent, whether a slave or not, was not and
could not be a citizen of a State or of the United States. This
decision, while it met the condemnation of some of the ablest
106 CASES ON CONSTITUTIONAL LAW.
statesmen and constitutional lawyers of the country, had never
been overruled ; and if it was to be accepted as a constitutional
limitation of the right of citizenship, then all the negro race who
had recently been made freemen, were still, not only not citizens,
but were incapable of becoming so by anything short of an amend-
ment to the Constitution.
To remove this difficulty primarily, and to establish a clear and
comprehensive definition of citizenship which should declare what
should constitute citizenship of the United States, and also citi-
zenship of a State, the first clause of the first section was framed.
"All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside."
The first observation we have to make on this clause is, that it
puts at rest both the questions which we stated to have been the
subject of differences of opinion. It declares that persons may be
citizens of the United States without regard to their citizenship
of a particular State, and it overturns the Dred Scott decision by
making all persons bom within the United States and subject to
its jurisdiction citizens of the United States. That its main pur-
pose was to establish the citizenship of the negro can admit of no
doubt. The phrase, "subject to its jurisdiction" was intended to
exclude from its operation children of ministers, consuls, and
citizens or subjects of foreign states born within the United
States.^
The next observation is more important in view of the argu-
ments of counsel in the present case. It is, that the distinction
between citizenship of the United States and citizenship of a
State is clearly recognized and established. Not only may a man
be a citizen of the United States without being a citizen of a
State, but an important element is necessary to convert the for-
mer into the latter. He must reside within the State to make
him a citizen of it, but it is only necessary that he should be born
or naturalized in the United States to be a citizen of the Union.
It is quite clear, then, that there is a citizenship of the United
States, and a citizenship of a State, which are distinct from each
other, and which depend upon different characteristics or circum-
stances in the individual.
We think this distinction and its explicit recognition in this
amendment of great weight in this argument, because the next
I As to this dictmn, compare the decision in United States v. Wong Kim
Ark, 169 U. S. 649.
SLAUGH'TER-HOUSE CASES. 107
paragraph of this same section, which is the one mainly relied on
by the plaintiffs in error, speaks only of privileges and immuni-
ties of citizens of the United States, and does not speak of those
of citizens of the several States. The argument, however, in favor
of the plaintiffs rests wholly on the assumption that the citizen-
ship is the same, and the privileges and immunities guaranteed
by the clause are the same.
The language is, "No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of
the United States." It is a little remarkable, if this clause was
intended as a protection to the citizen of a State against the
legislative power of his own State, that the word citizen of the
State should be left out when it is so carefully used, and used in
contradistinction to citizens of the United States, in the very
sentence which precedes it. It is too clear for argument that the
change in phraseology was adopted understandingly and with a
purpose.
Of the privileges and immunities of the citizen of the United
States, and of the privileges and immunities of the citizen of the
State, and what they respectively are, we will presently consider ;
but we wish to state here that it is only the former which are
placed by this clause under the protection of the Federal Consti-
tution, and that the latter, whatever they may be, are not intend-
ed to have any additional protection by this paragraph of the
amendment.
If, then, there is a difference between the privileges and im-
munities belonging to a citizen of the United States as such, and
those belonging to the citizen of the State as such, the latter must
rest for their security and protection where they have heretofore
rested; for they are not embraced by this paragraph of the
amendment.
The first occurrence of the words "privileges and immunities"'
in our constitutional history, is to be found in the fourth of the
■ articles of the old Confederation.
It declares ' ' that the better to secure and perpetuate mutual
friendship and intercourse among the people of the different
States in this Union, the free inhabitants of each of these States,
paupers, vagabonds, and fugitives from justice excepted, shall be
entitled to all the privileges and immunities of free citizens in the
several States; and the people of each State shall have free
ingress and regress to and from any other State, and shall enjoy
therein all the privileges of trade and commerce, subject to the
108 CASES ON CONSTITUTIONAL LAW.
same duties, impositions, and restrictions as the inhabitants there-
of respectively. ' '
In the Constitution of the United States, which superseded the
Articles of Confederation, the corresponding provision is found in
section two of the fourth article, in the following words : ' ' The
citizens of each State shall be entitled to all the privileges and
immunities of citizens of the several States. ' '
There can be but little question that the purpose of both these
provisions is the same, and that the privileges and immunities
intended are the same in each. In the article of the Confederation
we have some of these specifically mentioned, and enough per-
haps to give some general idea of the class of civil rights meant
by the phrase.
Fortunately we are not without judicial construction of this
clause of the Constitution. The first and the leading case on the
subject is that of Corfield v. Coryell, decided by Mr. Justice
Washington in the Circuit Court for the District of Pennsyl-
vania in 1823, 4 Washington's Circuit Court, 371.
"The inquiry," he says, "is, what are the privileges and im-
munities of citizens of the several States ? We feel no hesitation
in confining these expressions to those privileges and immuni-
ties which are fundamental ; which belong of right to the citizens
of all free governments, and which have at all times been enjoyed
by citizens of the several States which compose this Union, from
the time of their becoming free, independent, and sovereign.
What these fundamental principles are, it would be more tedious
than difficult to enumerate. They may all, however, be compre-
hended under the following general heads: protection by the
government, with the right to acquire and possess property of
every kind, and to pursue and obtain happiness and safety, sub-
ject, nevertheless, to such restraints as the government may
prescribe for the general good of the whole." [The court then
cites Ward v. The State of Maryland, 12 Wallace, 430, and Paul
V. Virginia, 8 Wallace, 180.]
The constitutional provision there alluded to did not create
those rights, which it called privileges and immunities of citizens
of the States. It threw around them in that clause no security
for the citizen of the State in which they were claimed or exer-
cised. Nor did it profess to control the power of the State govern-
ments over the rights of its own citizens.
Its sole purpose was to declare to the several States, that what-
ever those rights, as you grant or establish them to your own
citizens, or as you limit or qualify, or impose restrictions on their
SLAUGHTER-HOUSE CASES. 109
exercise, the same, neither more nor less, shall be the measure of
the rights of citizens of other States within your jurisdiction.
It would be the vainest show of learning to attempt to prove by
citation of authority, that up to the adoption of the recent
amendments, no claim or pretense was set- up that those rights
depended on the Federal government for their existence or pro-
tection, beyond the very few express limitations which the Fed-
eral Constitution imposed upon the States — such, for instance, as
the prohibition against ex post facto laws, bills of attainder, and
laws impairing the obligation of contracts. But with the excep-
tion of these and a few other restrictions, the entire domain of
the privileges and immunities of citizens of the States, as above
defined, lay within the constitutional and legislative power of the
States, and without that of the Federal government. "Was it the
purpose of the fourteenth amendment, by the simple declaration
that no State should make or enforce any law which shall abridge
the privileges and immunities of citizens of the United States, to
transfer the security and protection of all the civil rights which
we have mentioned, from the States to the Federal government ?
And where it is declared that Congress shall have the pow^r to
enforce that article, was it intended to bring within the power of
Congress the entire domain of civil rights heretofore belonging
exclusively to the States ?
All this and more must follow, if the proposition of the plain-
tiffs in error be sound. For not only are these rights subject to
the control of Congress whenever in its discretion any of them are
supposed to be abridged by State legislation, but that body may
also pass laws in advance, limiting and restricting the exercise of .
legislative power by the States, in their most ordinary and usual
functions, as in its judgment it may think proper on all such sub-
jects* And still further, such a construction followed by the
reversal of the judgments of the Supreme Court of Louisiana in
these cases, would constitute this court a perpetual censor upon
all legislation of the States, on the civil rights of their own citi-
zens, with authority to nullify such as it did not approve as con-
sistent with those rights, as they existed at the time of the adop-
tion of this amendment. The argument, we admit, is not always
the most conclusive which is drawn from the consequences urged
against the adoption of a particular construction of an instru-
ment. But when, as in the case before us, these consequences are
so serious, so far-reaching and pervading, so great a departure
from the structure and spirit of our institutions ; when the effect
is to fetter and degrade the State governments by subjecting
110 CASES ON CONSTITUTIONAL LAW.
them to the control of Congress, in the exercise of powers here-
tofore universally conceded to them of the most ordinary and
fundamental character; when in fact it radically changes the
whole theory of the relations of the State and Federal govern-
ments to each other and of both these governments to the people ;
the argument has a force that is irresistible, in the absence of
language which expresses such a purpose too clearly to admit of
doubt.
We are convinced that no such results were intended by the
Congress which proposed these amendments, nor by the legis-
latures of the States which ratified them.
Having shown that the privileges and immunities relied on in
the argument are those which belong to citizens of the States as
such, and that they are left to the State governments for security
and protection, and not by this article placed under the special
care of the Federal government, we may hold ourselves excused
from defining the privileges and immunities of citizens of the
United States which no State can abridge, until some case involv-
ing those privileges may make it necessary to do so.
But lest it should be said that no such privileges and immuni-
ties are to be found if those we have been considering are ex-
cluded, we venture to suggest some which owe their existence
to the Federal government, its National character, its Constitu-
tion, or its laws.
One of these is well described in the case of Crandall v. Nevada,
6 Wall. 36. It is said to be the right of the citizens of this great
country, protected by implied guarantees of its Constitution, "to
come to the seat of government to assert any claim he may have
upon that government, to transact any business he may have
with it, to seek its protection, to share its offices, to engage in
administering its functions. He has the right of free access to
its seaports, through which all operations of foreign commerce
are conducted, to the sub-treasuries, land offices, and courts of
justice in the several States." And quoting from the language
of Chief Justice Taney in another ease, it is said "that for all
the great purposes for which the Federal government was es-
tablished, we are one people, with one common country, we are
all citizens of the United States ; ' ' and it is, as such citizens, that
their rights are supported in this court in Crandall v. Nevada.
Another privilege of a citizen of the United States is to de-
mand the care and protection of the Federal government over
his life, liberty, and property when on the high seas or within the
jurisdiction of a foreign government. Of this there can be no
SLAUGHTER-HOUSE CASES. Ill
doubt, nor that the right depends upon his character as a citizen
of the United States. The right to peaceably assemble and peti-
tion for redress of grievances, the privilege of the writ of habeas
corpus, are rights of the citizen guaranteed by the Federal Con-
stitution. The right to use the navigable waters of the United
States, however they may penetrate the territory of the several
States, all rights secured to our citizens by treaties with foreign
nations, are dependent upon citizenship of the United States, and
not citizenship of a State. One of these privileges is conferred '
by the very article under consideration. It is that a citizen of
the United States can, of his own volition, become a citizen of any
State of the Union by a bona fide residence therein, with the same
rights as other citizens of that State. To these may be added the-
rights secured by the thirteenth and fifteenth articles of amend-
ment, and by the other clause of the fourteenth, next to be con-
sidered.
But it is useless to pursue this branch of the inquiry, since we
are of opinion that the rights claimed by these plaintiffs in error,
if they have any existence, are not privileges and immunities of
citizens of the United States within the meaning of the clause of
the fourteenth amendment under consideration. . . .
The argument has not been much pressed in these cases that
the defendant's charter deprives the plaintiffs of their property
without due process of law, or that it denies to them the equal
protection of the law. The first of these paragraphs has been in
the Constitution since the adoption of the fifth amendment, as a
restraint upon the Federal power. It is also to be found in some
form of expression in the constitutions of nearly all the States, as
a restraint upon the power of the States. This law, then, has
practically been the same as it now is during the existence of the
government, except so far as the present amendment may place
the restraining power over the States in this matter in the hands
of the Federal government.
We are not without judicial interpretation, therefore, both
State and National, of the meaning of this clause. And it is suffi-
cient to say that under no construction of that provision that we
have ever seen, or any that we deem admissible, can the restraint
imposed by the State of Louisiana upon the exercise of their trade
by the butchers of New Orleans be held to be a deprivation of
property within the meaning of that provision.
"Nor shall any State deny to any person within its jurisdic-
tion the equal protection of the laws. ' '
In the light of the history of these amendments, and the per-
112 CASES ON CONSTITUTIONAL LAW.
vading purpose of them, which we have already discussed, it is not
difficult to give a meaning to this clause. The existence of laws
in the States where the newly emancipated negroes resided,
which discriminated with gross injustice and hardship against
them as a class, was the evil to be remedied by this clause, and
by it such laws are forbidden.
If, however, the States did not conform their laws to its re-
quirements, then by the fifth section of the article of amendment
Congress was authorized to enforce it by suitable legislation. "We
doubt very much whether any action of a State not directed by
way of discrimination against the negroes as a class, or on ac-
count of their race, will ever be held to come within the purview
of this provision.! It is so clearly a provision for that race and
that emergency, that a strong case would be necessary for its
application to any other. But as it is a State that is to be dealt
with, and not alone the validity of its laws, we may safely leave
that matter until Congress shall have exercised its power, or
some case of State oppression, by denial of equal justice in its
courts, shall have claimed a decision at our hands. We find no
such case in the one before us, and do not deem it necessary to
go over the argument again, as it may have relation to this par-
ticular clause of the amendment.
In the early history of the organization of the government, its
statesmen seem to have divided on the line which should separate
the powers of the National government from those of the State
governments, and though this line has never been very well de-
fined in public opinion, such a division has continued from that
day to this.
The adoption of the first eleven amendments to the Constitu-
tion so soon after the original instrument, was accepted, shows a
prevailing sense of danger at that time from the Federal power.
And it cannot be denied that such a jealousy continued to exist
1 The learned judge proved to be a poor prophet. It is undoubtedly true
that the protection of the newly-liberated negro was the dominant motive
in the adoption of the Fourteenth Amendment, but it eontains no mention
of the negro, and its language is of universal application to all citizens and
in some cases to all residents of the United States. A careful writer said in
1912 : "Of the six hundred and four cases involving the Fourteenth Amend-
ment in which the Supreme Court has delivered opinions since 1868, only
twenty-eight deal with questions involving the negro race; that Is to say,
less than five per cent of the total litigation under the Amendment. ' ' Col-
lins, The Fourteenth Amendment and the States, 46. Compare the dictum
of Justice Miller with the language of the court in Tick Wo v. Hopkins, 118
U. S, 356.— Ed.
SLAUGHTER-HOUSE CASES. 113
with many patriotic men until the breaking out of the late civil
war. It was then discovered that the true danger of the perpe-
tuity of the Union was in the capacity of the State organizations
to combine and concentrate all the powers of the State, and of
contiguous States, for a determined resistance to the General
Government.
Unquestionably this has given great force to the argument, and
added largely to the number, of those who believe in the neces-
sity of a strong National government.
But, however pervading this sentiment, and however it may
have contributed to the adoption of the amendments we have been
considering, we do not see in those amendments any purpose to
destroy the main features of the general system. Under the pres-
sure of all the excited feeling growing out of the war, our states-
men have still believed that the existence of the States with pow-
ers for domestic and local government, including the regulation
of civil rights — the rights of person and of property — was essen-
tial to the perfect working of our complex form of government,
though they may have thought proper to impose additional lim-
itations on the States, and to confer additional power on that
of the Nation.
But whatever fluctuations may be seen in the history of pub-
lic opinion on this subject during the period of our national
existence, we think it will be found that this court, so far as its
functions require, has always held with a steady and even hand
the balance between State and Federal power, and we trust that
such may continue to be the history of its relation to that subject
so long as it shall have duties to perform which demand of it a
construction of the Constitution, or any of its parts.
The judgments of the Supreme Court of Louisiana in these
cases are affirmed.
[Me. Justice Field delivered a dissenting opinion in which
Mr. Chief Justice Chase, Me. Justice Bradley and Me. Jus-
tice SwTAYNE concurred. The last two also delivered separate
dissenting opinions.]
I^OTE. — It is interesting to compare with the principal case the view taken
by Congress of the meaning and scope of the Fourteenth Amendment. The
discussion is well summarized in Flack, The Adoption of the Fourteenth
Amendment, ch. v. See also Guthrie, Lectures on the Fowrteenth Amend-
ment, and an acute discussion of the history and meaning of all the war
amendments incorporated by Chief Justice Cooley in his edition of Story's
Commentaries, II, 632-692.
£. c. L.— 8
114 CASES ON CONSTITUTIONAL LAW.
TWINING V. STATE OP NEW JERSEY.
Supreme Court of the United States. 1908.
211 U. S. 78; 53 Lawyers' Ed. 97.
Error to the Court of Errors and Appeals of the State of New
Jersey.
[Twining and Cornell, plaintiffs in error, directors of a bank
in New Jersey, were indicted for having knowingly exhibited a
false paper to a State bank examiner with intent to deceive him
as to the condition of the bank. At the trial the defendants called
no witnesses and did not testify in their own behalf. In his
charge to the jury the judge said : ' ' Because a man does not go
upon the stand you are not necessarily justified in drawing an
inference of guilt. But you have a right to consider the fact
that he does not go upon the stand where a direct accusation is
made against him." The defendants were convicted and sen-
tenced to imprisonment for six and four years respectively. This
was affirmed by the Court of Errors and Appeals, and the case
was then appealed on the ground that the charge to the jury de-
prived the defendants of rights and immunities which were pro-
tected by the Fourteenth Amendment.]
Me. Justice Moody . . . delivered the opinion of the
court. . . .
The general question, therefore, is, whether such a law vio-
lates the Fourteenth Amendment, either by abridging the privi-
leges or immunities of citizens of the United States, or by depriv-
ing persons of their life, liberty or property without due process
of law. In order to bring themselves within the protection of
the Constitution it is incumbent on the defendants to prove two
propositions: first, that the exemption from compulsory self-in-
crimination is guaranteed by the Federal Constitution against
impairment by the States; and, second, if it be so guaranteed,
that the exemption was in fact impaired in the case at bar. The
first proposition naturally presents itself for earlier considera-
tion. If the right here asserted is not a Federal right, that is
the end of the case. We have no authority to go further and
determine whether the State court has erred in the interpre-
tation and enforcement of its own laws.
The exemption from testimonial compulsion, that is, from dis-
closure as a witness of evidence against oneself, forced by any
form of legal process, is universal in American law, though there
may be differences as to its exact scope and limits. At the time
TWINING V. STATE OF NEW JEHSEY. Il5
of the formation of the Union the principle that no person could
be compelled to be a witness against himself had become em-
bodied in the common law and distinguished it from all other
systems of jurisprudence. It was generally regarded then, as
now, as a privilege of great value, a protection to the innocent
though a shelter to the guilty, and a safeguard against heedless,
unfounded or tyrannical prosecutions. Five of the original thir-
teen States (North Carolina, 1776 ; Pennsylvania, 1776 ; Virginia,
1776; Massachusetts, 1780; New Hampshire, 1784) had then
guarded the principle from legislative or judicial change bj'
including it in constitutions or bills of rights; Maryland had
provided in her constitution (1776) that "no man ought to be
compelled to give evidence against himself, in a common court
of law, or in any other court, but in such cases as have been usu-
ally practiced in this State or may hereafter be directed by the
legislature;" and in the remainder of those States there seems
to be no doubt that it was recognized by the courts. The privi-
lege was not included in the Federal Constitution as originally
adopted, but was placed in one of the ten Amendments which
were recommended to the States by the first Congress, and by
them adopted. Since then all the States of the Union have,
from time to time, with varying form but with uniform mean-
ing, included the privilege in their constitutions, except the
States of New Jersey and Iowa, and in those States it is held
to be part of the existing law. State v. Zdanowiez, 69 N. J. L.
308; State v. Height, 117 Iowa, 650. It is obvious from this
short statement that it has been supposed by the States that, so
far as the state courts are concerned, the privilege had its origin
in the constitutions and laws of the States, and that persons
appealing to it must look to the State for their protection. In-
deed, since by the unvarying decisions of this court the first ten
Amendments of the Federal Constitution are restrictive only of
National action, there was nowhere else to look up to the time of
the adoption of the Fourteenth Amendment, and the State, at
least until then, might give, modify or withhold the privilege at
its will. . . .
The defendants contend, in the first place, that the exemption
from self-incrimination is one of the privileges, and immunities
of citizens of the United States which the Fourteenth Amend-
ment forbids the States to abridge. It is not argued that the
defendants are protected by that part of the Fifth Amendment
which provides that "no person . , . shall be compelled in
any criminal case to be a witness against himself," for it is
116 CASES ON CONSTITUTIONAL LAW.
recognized by counsel that by a long line of decisions the first
ten Amendments are not operative on the States. Barron v.
Baltimore, 7 Pet. 243 ; Spies v. Illinois, 123 U. S. 131 ; Brown
V. New Jersey, 175 U. S. 172 ; Barrington v. Missouri, 205 U. S.
483. But it is argued that this privilege is one of the funda-
mental rights of National citizenship, placed under National pro-
tection by the Fourteenth Amendment, and it is specifically
argued that the "privileges and immunities of citizens of the
United States," protected against State action by that Amend-
ment, include those fundamental personal rights which were pro-
tected against National action by the first eight Amendments;
that this was the intention of the framers of the Fourteenth
Amendment, and that this part of it would otherwise have little
or no meaning and effect. These arguments are not new to this
court and the answer to them is found in its decisions. The
meaning of the phrase "privileges and immunities of citizens of
the United States, ' ' as used in the Fourteenth Amendment, came
under early consideration in the Slaughter-House Cases, 16 "Wall.
36. . . .
There can be no doubt, so far as the decision in the Slaughter
House Cases has determined the question, that the civil rights
sometimes described as fundamental and inalienable, which be-
fore the war Amendments were enjoyed by state citizenship and
protected by state government, were left untouched by this clause
of the Fourteenth Amendment. Criticism of this case has never
entirely ceased, nor has it ever received universal assent by
members of this court. Undoubtedly, it gave much less effect
to the Fourteenth Amendment than some of the public men active
in framing it intended, and disappointed many others. On the
other hand, if the views of the minority had prevailed it is easy
to see how far the authority and independence of the States
would have been diminished, by subjecting all their legislative
and judicial acts to correction by the legislative and review by
the judicial branch of the National Government. But we need
not now inquire into the merits of the original dispute. This
part at least of the Slaughter-House Cases has been steadily ad-
hered to by this court, so that it was said of it, in a ease where
the same clause of the amendment was under consideration
(Maxwell v. Dow, 176 U. S. 581, 591), "The opinion upon the
matters actually involved and maintained by the judgment in
the case has never been doubted or overruled by any judgment
of this court. ' ' The distinction between National and state citi-
zenship and their respective privileges there drawn has come to
TWINING V. STATE OF NEW JERSEY. 117
be firmly established. And so it was held that the right of peace-
able assembly for a lawful purpose (it not appearing that the
purpose had any reference to the National Government) was
not a right secured by the Constitution of the United States,
although it was said that the right existed before the adoption
of the Constitution of the United States, and that "it is and
always has been one of the attributes of citizenship under a free
government." United States v. Cruikshank, 92 U. S. 542, 551.
And see Hodges v. United States, 203 U. S. 1. In each case the
Slaughter-House Cases were cited by the court, and in the lat-
ter case the rights described by Mr. Justice Washington were
again treated as rights of state citizenship under state protec-
tion. If, then, it be assumed, without deciding the point, that
an exemption from compulsory self-incrimination is what is de-
scribed as a fundamental right belonging to all who live under
a free government, and incapable of impairment by legislation
or judicial decision, it is, so far as the States are concerned, a
fundamental right inherent in state citizenship, and is a privi-
lege or immunity of that citizenship only. Privileges and im-
munities of citizens of the United States, on the other hand, are
only such as arise out of the nature and essential character of
the National Government, or are specifically granted or secured
to all citizens or persons by the Constitution of the United States.
Slaughter-House Cases, 16 Wall. 70; In re Kemmler, 136 U. S.
436, 448 ; Duncan v. Missouri, 152 U. S. 377, 382.
Thus among the rights and privileges of National citizenship
recognized by this court are the right to pass freely from State
to State, Crandall v. Nevada, 6 Wall. 35 ; the right to petition
Congress for a redress of grievances. United States v. Cruik-
shank, 92 U. S. 542 ; the right to vote for National officers. Ex
parte Yarbrough, 110 U. S. 651 ; Wiley v. Sinkler, 179 U. S. 58 ;
the right to enter the public lands. United States v. Waddell,
112 U. S. 76; the right to be protected against violence while
in the lawful custody of the United States marshal, Logan v.
United States, 144 U. S. 263 ; and the right to inform the United
States authorities of violation of its laws. In re Quarles, 158
U. S. 532. Most of these cases were indictments against indi-
viduals for conspiracies to deprive persons of rights secured by
the Constitution of the United States, and met with a different
fate in this court from the indictments in United States v.
Cruikshank and Hodges v. United States, because the rights in
the latter cases were rights of state and not of National citizen-
ship. But assuming it to be true that the exemption from self-
118 CASES ON CONSTITUTIONAL LAW.
incrimination is not, as a fundamental right of National citizen-
ship, included in the privileges and immunities of citizens of the
United States, counsel insist that, as a right specifically granted
or secured by the Federal Constitution, it is included in them.
This view is based upon the contention which must now be ex-
amined, that the safeguards of personal rights which are enu-
merated in the first eight Articles of amendment to the Federal
Constitution, sometimes called the Federal Bill of Rights, though
they were by those Amendments originally secured only against
National action, are among the privileges and immunities of citi-
zens of the United States, which this clause of the Fourteenth
Amendment protects against state action. This view has
been, at different times, expressed by justices of this court (Mr.
Justice Field in O'Niel v. Vermont, 144 U. S. 323, 361; Mr. Jus-
tice Harlan in the same case, 370, and in Maxwell v. Dow, 176
U. S. 606, 617) and was undoubtedly that entertained by some
of those who framed the Amendment. It is, however, not profit-
able to examine the weighty arguments in its favor, for the
question is no longer open in this court. The right of trial by
jury in civil cases, guaranteed by the Seventh Amendment
(Walker v. Sauvinet, 92 U. S. 90), and the right to bear arms
guaranteed by the Second Amendment (Presser v. Illinois, 116
U. S. 252), have been distinctly held not to be privileges and im-
munities of the United States guaranteed by the Fourteenth
Amendment against abridgement by the States, and in effect the
same decision was made in respect of the guarantee against prose-
cution, except by indictment of a grand jury, contained in the
Fifth Amendment (Hurtado v. California, 110 U. S. 516), and
in respect to the right to be confronted with witnesses contained
in the Sixth Amendment. West v. Louisiana, 194 U. S. 258. In
Maxwell v. Dow, supra, where the plaintiff in error had been
convicted in a state court of a felony upon information, and by
a jury of eight persons, it was held that the indictment, made
indispensable by the Fifth Amendment, and the trial by jury
guaranteed by the Sixth Amendment were not privileges and im-
munities of citizens of the United States, as those words were
used in the Fourteenth Amendment. . . .
We conclude, therefore, that the exemption from compulsory
self-incrimination is not a privilege or immunity of National
citizenship guaranteed by this clause of the Fourteenth Amend-
ment against abridgement by the States. . . .
[The remaining portion of this opinion, dealing with the mean-
ing of the phrase "due process of law," is given post, page 319.]
GUINN AND BBAL v. UNITED STATES. 119
Note. — The Supreme Court has never attempted any full and exact defi-
nition of the phrase ' ' privileges and immunities of citizens ' ' as used in the
Constitution, art. IV, sec. 2, and in the Fourteenth Amendment. As to what
is comprehended in the term see Butchers' Union Slaughter House Co. v.
Crescent City Live-Stock Landing Co. (1884), 111 U. S. 746 (the right to
pursue any of the ordinary occupations); United States v. Eeese (1875),
92 U. S. 214 (right to be free from discrimination in the exercise of the
franchise) ; Minor v. Happersett (1874), 21 Wallace, 162 (right to vote) ;
Bradwell v. Illinois (1873), 16 Wallace, 130; In re Lockwood (1894), 154
U. S. 116 (right to practice law) ; Bartemeyer v. Iowa (1873), 16 Wallace,
130 (right to sell liquor). The protection of the Fourteenth Amendment is
afforded only against acts of the States, and not against acts of individuals.
United States v. Cruikshank (1876), 92 U." S. 542; Virginia v. Eives (1879),
100 U. S. 313; CivU Eights Cases (1883), 109 U. S. 3; Hodges v. United
States (1906), 203 U. S. 1. The same rule applies to the Fifteenth Amend-
ment. James v. Bowman (1903), 190 U. S. 127.
GUINN AND BEAL v. UNITED STATES.
Supreme Coukt op the United States. 1915.
238 U. S. 347; 59 Lawyers' Ed.
Certificate from the Circuit Court of Appeals.
Mr. Chikf Justice White delivered the opinion of the court.
This case is before us on a certificate drawn by the court below
as the basis of two questions which are submitted for our solu-
tion in order to enable the court correctly to decide issues in a
case which it has under consideration. Those issues arose from
an indictment and conviction of certain election officers of the
State of Oklahoma (the plaintiffs in error), of the crime of
having conspired unlawfully, wilfully and fraudulently to de-
prive certain negro citizens, on account of their race and color,
of a right to vote at a general election held in that State in 1910,
they being entitled to vote under the state law and which right
was secured to them by the Fifteenth Amendment to the Consti-
tution of the United States. . . .
Suffrage in Oklahoma was regulated by § 1, Article III of the
Constitution under which the State was admitted into the Union,
Shortly after the admission there was submitted an amendment
to the Constitution making a radical change in that article which
was adopted prior to November 8, 1910. At an election for
members of Congress which followed the adoption of this Amend-
ment, certain election officers in enforcing its provisions refused
to allow certain negro citizens to vote who were clearly entitled
120 CASES ON CONSTITUTIONAL LAW.
to vote under the provision of the Constitution under whieli the
State was admitted, that is, before the amendment, and who, it
is equally clear, were not entitled to vote under the provision of
the suffrage amendment if that amendment governed. The per-
sons so excluded based their claim of right to vote upon the
original Constitution and upon the assertion that the suffrage
amendment was void because in conflict with the prohibitions of
the Fifteenth Amendment and therefore afforded no basis for
denying them the right guaranteed and protected by that Amend-
ment. And upon the assumption that this claim was justified
and that the election officers had violated the Fifteenth Amend-
ment in denying the right to vote, this prosecution, as we have
said, was commenced. . . .
The questions which the court below asks are these :
' ' 1. "Was the amendment to the constitution of Oklahoma, here-
tofore set forth, valid?
"2. Was that amendment void in so far as it attempted to
debar from the right or privilege of voting for a qualified candi-
date for a Member of Congress in Oklahoma, unless they were
able to read and write any section of the constitution of Okla-
homa, negro citizens of the United States who were otherwise
qualified to vote for a qualified candidate for a Member of Con-
gress in that State, but who were not, and none of whose lineal
ancestors was, entitled to vote under any form of government on
January 1, 1866, or at any time prior thereto, because they were
then slaves?"
As these questions obviously relate to the provisions concern-
ing suffrage in the original constitution and the amendment to
those provisions which forms the basis of the controversy, we
state the text of both. The original clause so far as material
was this:
"The qualified electors of the State shall be male citizens of
the United States, male citizens of the State, and male persons
of Indian descent native of the United States, who are over the
age of twenty-one years, who have resided in the State one year,
in the county six months, and in the election precinct thirty days,
next preceding the election at which any such elector offers to
vote."
And this is the amendment :
"No person shall be registered as an elector of this State or
be allowed to vote in any election herein, unless he be able to read
and write any section of the constitution of the State of Okla-
homa; but no person who was, on January 1, 1866, or at any time
GUINN AND BEAL v. UNITED STATES. 121
prior thereto, entitled to vote under any form of government, or
who at that time resided in some foreign nation, and no lineal
descendant of such person, shall be denied the right to register
and vote because of his inability to so read and write sections of
such constitution. . . ."
The argument of the Government in substance says : No ques-
tion is made by the Government concerning the validity of the
literacy test provided for in the amendment under consideration
as an independent standard since the conclusion is plain that
that test rests on the exercise of state judgment and therefore
cannot be here assailed either by disregarding the State 's power
to judge on the subject or by testing its motive in enacting the
provision. The real question involved, so the argument of the
Government insists, is the repugnancy of the standard which the
amendment makes, based on the conditions existing on January
1, 1866, because on its face and inherently considering the sub-
stance of things, that standard is a mere denial of the restric-
tions imposed by the prohibitions of the Fifteenth Amendment
and by necessary result re-creates and perpetuates the very con-
ditions which the Amendment was intended to destroy. From
this it is urged that no legitimate discretion could have entered
into the fixing of such standard which involved only the determi-
nation to directly set at naught or by indirection avoid the com-
mands of the Amendment. And it is insistent that nothing con-
trary to these propositions is involved in the contention of the
Government that if the standard which the suffrage amendment
fixes based upon the conditions existing on January 1, 1866, be
found to be void for the reasons urged, the other and literacy test
is also void, since that contention rests, not upon any assertion
upon the part of the Government of any abstract repugnancy of
the literacy test to the prohibitions of the Fifteenth Amendment,
but upon the relation between that test and the other as formu-
lated in the suffrage amendment and the inevitable result which
it is deemed must follow from holding it to be void if the other
is so declared to be. . . .
The questions then are: (1) Giving to +he propositions of the
Government the interpretation which the Government puts upon
them and assuming that the suffrage provision has the significance
which the Government assumes it to have, is that provision as a
matter of law repugnant to the Fifteenth Amendment? which
leads us of course to consider the operation and effect of the
Fifteenth Amendment. (2) If yes, has the assailed amendment
in so far as it fixes a standard for voting as of January 1, 1866,
122 CASES ON CONSTITUTIONAL LAW.
the meaning which the Government attributes to it? which
leads us to analyze and interpret that provision of the amend-
ment. (3) If the investigation as to the two prior subjects estab-
lishes that the standard fixed as of January 1, 1866, is void, what
if any effect does that conclusion have upon the literacy standard
otherwise established by the amendment? which involves deter-
mining whether that standard, if legal, may survive the recog-
nition of the fact that the other or 1866 standard has not and
never had any legal existence. Let us consider these subjects
under separate headings.
1. The operation and effect of the Fifteenth Amend/ment.
[Here follows the text of the Fifteenth Amendment.]
(a) Beyond doubt the Amendment does not take away from
the state governments in a general sense the power over suffrage
which has belonged to those governments from the beginning and
without the possession of which power the whole fabric upon
which the division of state and national authority under the
Constitution and the organization of both governments rest would
be without support and both the authority of the nation and of
the State would fall to the ground. In fact, the very command
of the Amendment recognizes the possession of the general power
by the State, since the Amendment seeks to regulate its exercise
as to the particular subject with which it deals.
(b) But it is equally beyond the possibility of question that
the Amendment in express terms restricts the power of the
United States or the States to abridge or deny the right of a
citizen of the United States to vote on account of race, color or
previous condition of servitude. The restriction is coincident
with the power and prevents its exertion in disregard of the
command of the Amendment. But while this is true, it is true
also that the Amendment does not change, modify or deprive the
States of their full power as to suffrage except of course as to
the subject with which the Amendment deals, and to the extent
that obedience to its command is necessary. Thus the authority
over suffrage which the States possess and the limitation which
the Amendment imposes are coordinate and one may not destroy
the other without bringing about the destruction of both.
(c) "While in the true sense, therefore, the Amendment gives
no right of suffrage, it was long ago recognized that in operation
its prohibition might measurably have that effect ; that is to say,
that as the command of the Amendment was self -executing and
reached without legislative action the conditions of discrimina-
tion against which it was aimed, the result might arise that as a
GUINN AND BEAL v. UNITED STATES. 123
consequence of the striking down of a discriminating clause a
right of suffrage would be enjoyed by reason of the generic char-
acter of the provision which would remain after the discrimina-
tion was stricken out. Ex parte Yarbrough, 110 U. S. 651 ; Neal
V. Delaware, 103 U. S. 370. A familiar illustration of this doc-
trine resulted from the effect of the adoption of the Amendment
on state constitutions in which at the time of the adoption of the
Amendment the right of suffrage was conferred on all white male
citizens, since by the inherent power of the Amendment the word
white disappeared and therefor all male citizens without discrimi-
nation on account of race, color or previous condition of servitude
came under the generic grant of suffrage made by the State.
"With these principles before us how can there be room for any
serious dispute concerning the repugnancy of the standard based
upon January 1, 1866 (a date which preceded the adoption of
the Fifteenth Amendment), if the suffrage provision fixing that
standard is susceptible of the significance which the Government
attributes to it? Indeed, there seems no escape from the con-
clusion that to hold that there was even possibility for dispute
on the subject would be but to declare that the Fifteenth Amend-
ment not only had not the self-executing power which it has
been recognized to have from the beginning, but that its pro-
visions were wholly inoperative because susceptible of being ren-
dered inapplicable by mere form of expression embodying no
exercise of judgment and resting upon no discernible reason
other than the purpose to disregard the prohibitions of the
Amendment by creating a standard of voting which on its face
was in substance but a revitalization of conditions which when
they prevailed in the past had been destroyed by the self -opera-
tive force of the Amendment.
2. The standard of Jantiary 1, 1866, fia>ed in the ' suffrage
amendment and its significance.
The inquiry of course here is, Does the amendment as to the
particular standard which this heading embraces involve the
mere refusal to comply with the commands of the Fifteenth
Amendment as previously stated? This leads us for the purpose
of the analysis to recur to the text of the suffrage amendment.
Its opening sentence fixes the literacy standard which is all in-
clusive since it is general in its expression and contains no word
of discrimination, on account of race or color or any other reason.
This, however, is immediately followed by the provisions creating
the standard based upon the condition existing on January 1,
1866, and carving out those coming under that standard from the
124 CASES ON CONSTITUTIONAL LAW.
inclusion in the literacy test which would have controlled them
but for the exclusion thus expressly provided for. The provision
is this :
' ' But no person who was, on January 1, 1866, or at any time
prior thereto, entitled to vote under any form of government, or
who at that time resided in some foreign nation, and no lineal
descendant of such person, shall be denied the right to register
and vote because of his inability to so read and write sections of
such constitution."
We have difficulty in finding words to more clearly demon-
strate the conviction we entertain that this standard has the
characteristics which the Government attributes to it than does
the mere statement of the text. It is true it contains no express
words of an exclusion from the standard which it establishes of
any person on account of race, color, or previous condition of
servitude prohibited by the Fifteenth Amendment, but the stand-
ard itself inherently brings that result into existence since it is
based purely upon a period of time before the enactment of the
Fifteenth Amendment and makes that period the controlling and
dominant test of the right of suffrage. In other words, we seek
in vain for any ground which would sustain any other interpre-
tation but that the provision, recurring to the conditions exist-
ing before the Fifteenth Amendment was adopted and the con-
tinuance of which the Fifteenth Amendment prohibited, pro-
posed by in substance and effect lifting those conditions over to
a period of time after the Amendment to make them the basis of
the right to suffrage conferred in direct and positive disregard of
the Fifteenth Amendment. And the same result, we are of
opinion, is demonstrated by considering whether it is possible to
discover any basis of reason for the standard thus fixed other
than the- purpose above stated. We say this because we are
unable to discover how, unless the prohibitions of the Fifteenth
Amendment were considered, the slightest reason was afforded
for basing the classification upon a period of time prior to the
Fifteenth Amendment. Certainly it cannot be said that there
was any peculiar necromancy in the time named which engen-
dered attributes affecting the qualification to vote which would
not exist at another and different period unless the Fifteenth
Amendment was in view.
While these considerations establish that the standard fixed
on the basis of the 1866 test is void, they do not enable us to
reply even to the first question asked by the court below, since
to do so we must consider the literacy standard established by
GUINN AND BEAL v. UNITED STATES. 125
the suffrage amendment and the possibility of its surviving the
determination of the fact that the 1866 standard never took life
since it was void from the beginning because of the operation
upon it of the prohibitions of the Fifteenth Amendment. And
this brings us to the last heading :
3. The determination of the validity of the literacy test and
the possibility of its survivvng the disappearance of the 1866
standard with which it is associated in the suffrage amendment.
We are of opinion that neither forms of classification nor meth-
ods of enumeration should be made the basis of striking down a
provision which was independently legal and therefore was law-
fully enacted because of the removal of an illegal provision with
which the legal provision or provisions may have been associated.
We state what we hold to be the rule thus strongly because we are
of opinion that on a subject like the one under consideration
involving the establishment of a right whose exercise lies at the
very basis of government a much more exacting standard is
required than would ordinarily obtain where the influence of the
declared unconstitutionality of one provision of a statute upon
another and constitutional provision is required to be fixed.
. . . In our opinion the very language of the suffrage amend-
ment expresses, not by implication nor by forms of classification
nor by the order in which they are made, but by direct and posi-
tive language the command that the persons embraced in the 1866
standard should not be under any conditions subjected to the
literacy test, a command which would be virtually set at naught
if on the obliteration of the one standard by the force of the
Fifteenth Amendment the other standard should be held to con-
tinue in force. . . .
We answer the first question, No, and the second question. Yes.
And it mil ie so certified.
CHAPTER III.
THE JURISDICTION OF THE FEDERAL COURTS.
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 admiralty and maritime jurisdiction ; to controversies
to which the United States shall be a party; to controversies be-
tween two or more States; between a State and citizens of another
State; between citizens of different States; between citizens of the
same State claiming lanSs 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 a party, the Supreme
Court shall have original jurisdiction. In all the other cases before
mentioned the Supreme Court shall have appellate jvirisdiction,
both as to law and fact, with such exceptions and under such regu-
lations as the Congress shall make.
Constitution of the United States, Art. Ill, J S.
The judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by citizens of another State, or
by citizens or subjects of any foreign State.
Constitution of the United States, Amendment XI.
CHISHOLM, EXECUTOR v. GEORGIA.
SuPKEMB Court of the United States. 1793.
2 Dallas, 419 ; 1 Lawyers ' Ed. 440.
[This was an action of assumpsit against the State of Georgia,
■which made a written protest against the court's taking jurisdic-
tion of the cause, but otherwise took no part in the argument.
The judges delivered their opinions seriatim. Only that of the
Chief Justice is here printed.]
Jay, C. J. . . . Let us now proceed to inquire whether
Georgia has not, by being a party to the national compact, con-
sented to be suable by individual citizens of another State. This
inquiry naturally leads our attention, 1st. To the design of the
constitution. 2d. To the letter and express declaration in it.
126
CHISHOLM V. GEORGIA. 127
Prior to the date of the constitution, the people had not any-
national tribunal to which they could resort for justice ; the dis-
tribution of justice was then confined to State judicatories, in
whose institution and organization the people of the other States
had no participation, and over whom they had not the least con-
trol. There was then no general court of appellate jurisdiction
by whom the errors of State courts, affecting either the nation
at large or the citizens of any other State, could be revised and
corrected. Each State was obliged to acquiesce in the measure
of justice which another State might yield to her or to her citi-
zens ; and that even in cases where State considerations were not
always favorable to the most exact measure. There was danger
that from this source animosities would in time result; and
as the transition from animosities to hostilities was frequent in
the history of independent States, a common tribunal for the
termination of controversies became desirable, from motives both
of justice and of policy.
Prior also to that period the United States had, by taking a
place among the nations of the earth, become amenable to the
laws of nations, and it was their interest as well as their duty
to provide that those laws should be respected and obeyed; in
their national character and capacity the United States were re-
sponsible to foreign nations for the conduct of each State, rela-
tive to the laws of nations, and the performance of treaties ; and
there the inexpe4iency of referring all such questions to State
courts, and particularly to the courts of delinquent States, be-
came apparent. While all the States were bound to protect each
and the citizens of each, it was highly proper and reasonable
that they should be in a capacity not only to cause justice to be
done to each, and the citizens of each, but also to cause justice
to be done by each, and the citizens of each, and that, not by
violence and force, but in a stable, sedate, and regular course of
judicial procedure.
These were among the evils against which it was proper for
the nation, that is, the people of all the United States, to provide
by a national judiciary, to be instituted by the whole nation,
and to be responsible to the whole nation.
Let us now turn to the constitution. The people therein de-
clare that their design in establishing it comprehended six ob-
jects. 1st. To form a more perfect union. 2d. To establish jus-
tice. 3d. To insure domestic tranquillity. 4th. To provide for
the common defense. 5th. To promote the general welfare. 6th.
128 CASES ON CONSTITUTIONAL LAW.
To secure the blessings of liberty to themselves and their poster-
ity. . . .
It may be asked, what is the precise sense and latitude in which
the words "to establish justice," as here used, are to be under-
stood? The answer to this question will result from the provi-
sions made in the constitution on this head. They are specified
in the second section of the third article, where it is ordained
that the judicial power of the United States shall extend to ten
descriptions of eases, namely : 1st. To all cases arising under this
constitution; because the meaning, construction, and operation
of a compact ought always to be ascertained by aU the parties,
or by authority derived only from one of them. 2d. To all eases
arising under the laws of the United States ; because as such laws,
constitutionally made, are obligatory on each State, the measure
of obligation and obedience ought not to be decided and fixed
by the party from whom they are due, but by a tribunal deriv-
ing authority from both the parties. 3d. To all cases arising under
treaties made by their authority; because, as treaties are com-
pacts made by, and obligatory on the whole nation, their opera-
tion ought not to be affected or regulated by the local laws or
courts of a part of the nation. 4th. To all cases affecting am-
bassadors, or other public ministers and consuls ; because, as these
are officers of foreign nations, whom this nation is bound to
protect and treat according to the laws of nations, cases affecting
them ought only to be cognizable by national authority. 5th. To
all cases of admiralty and maritime jurisdiction ; because, as the
seas are the joint property of nations, whose right and privileges
relative thereto are regulated by the laws of nations and treaties,
such eases necessarily belong to national jurisdiction. 6th. To
controversies to which the United States shall be a party ; be-
cause, in cases in which the whole people are interested it would
not be equal or wise to let any one State decide and measure
out the justice due to others. 7th. To controversies between two
or more States; because domestic tranquillity requires that the
contentions of States should be peaceably terminated by a com-
mon judicatory; and, because, in a free country, justice ought
not to depend on the will of either of the litigants. 8th. To con-
troversies between a State and citizens of another State ; because,
in case a State (that is, all the citizens of it) has demands against
some citizens of another State, it is better that she should prose-
cute their demands in a national court, than in a court of the
State to which those citizens belong ; the danger of irritation and
criminations arising from apprehensions and suspicions of par-
CHISHOLM V. GEORGIA. 129
tiality being thereby obviated ; because, in cases where some citi-
zens of one State have demands against all the citizens of an-
other State, the cause of liberty and the rights of men forbid
that the latter should be the sole judges of the justice due to the
latter; and true republican government requires that free and
equal citizens should have free, fair, and equal justice. 9th. To
controversies between citizens of the same State, claiming lands
under grants of different States; because, as the rights of the
two States to grant the land are drawn into question, neither
of the two States ought to decide the question. 10th. To contro-
versies between a State or the citizens thereof and foreign States,
citizens or subjects; because, as every nation is responsible for
the conduct of its citizens towards other nations, all questions
touching the justice due to foreign nations, or people, ought to
be ascertained by, and depend on, national authority. Even this
cursory view of the judicial powers of the United States leaves
the mind strongly impressed with the importance of them to the
preservation of the tranquillity, the equal sovereignty, and the
equal right of the people.
The question now before us renders it necessary to pay par-
ticular attention to that part of the second section which ex-
tends the judicial power "to controversies between a State and
citizens of another State. " It is contended that this ought to be
construed to reach none of these controversies, excepting those
in which a State may be plaintiff. The ordinary rules for con-
struction will easily decide whether those words are to be under-
stood in that limited sense.
This extension of power is remedial, because it is to settle con-
troversies. It is, therefore, to be construed liberally. It is poli-
tic, wise, and good, that not only the controversies in which a
State is plaintiff, but also those in which a State is defendant,
should be settled ; both eases, therefore, are within the reason of
the remedy; and ought to be so adjudged, unless the obvious,
plain, and literal sense of the words forbid it. If we attend to
the words, we find them to be express, positive, free from ambigu-
ity, and without room for such implied expressions : ' ' The judi-
cial power of the United States shall extend to controversies be-
tween a State and citizens of another State." If the constitu-
tion really meant to extend these powers only to those contro-
versies in which a State might be plaintiff, to the exclusion of
those in which citizens had demands against a State, it is incon-
ceivable that it should have attempted to convey that meaning
in words not only so incompetent, but also repugnant to it ; if it
E. C. L.— 9
130 CASES ON CONSTITUTIONAL LAW.
meant to exclude a certain class of these controversies, why were
they not expressly excepted; on the contrary, not even an inti-
mation of such intention appears in any part of the constitution.
It cannot be pretended that where citizens urge and insist upon
demands against a State, which the State refuses to admit and
comply with, that there is no controversy between them. If it
is a controversy between them, then it clearly falls not only
within the spirit, but the very words of the constitution. What
is it to the cause of justice, and how can it affect the definition
of the word controversy, whether the demands which cause the
dispute are made by a State against citizens of another State,
or by the latter against the former? When power is thus ex-
tended to a controversy, it necessarily, as to all judicial pur-
poses, is also extended to those between whom it subsists. . . .
We find the same general and comprehensive manner of ex-
pressing the same ideas in a subsequent clause, in which the con-
stitution ordains that "in all eases affecting ambassadors, other
public ministers and consuls, and those in which a State shall be
a party, the supreme court shall have original jurisdiction."
Did it mean here party plaintiff? If that only was meant, it
would have been easy to have found words to express it. Words
are to be understood in their ordinary and common acceptation,
and the word party being in common usage applicable both to
plaintiff and defendant, we cannot limit it to one of them in the
present case. We find the legislature of the United States ex-
pressing themselves in the like general and comprehensive man-
ner; they speak, in the thirteenth section of the judicial act, of
controversies where a State is a party, and as they do not im-
pliedly or expressly apply that term to either of the litigants
in particular, we are to understand them as speaking of both.
In the same section they distinguish the cases where ambassa-
dors are plaintiffs, from those in which ambassadors are defend-
ants, and make different provisions respecting those cases; and
it is not unnatural to suppose that they would, in like manner,
have distinguished between cases where a State was plaintiff
and where a State was defendant, if they had intended to make
any difference between them, or if they had apprehended that
the constitution had made any difference between them.
I perceive, and therefore candor urges me to mention, a cir-
cumstance, which seems to favor the opposite side of the ques-
tion. It is this : The same section of the constitution which ex-
tends the judicial power to controversies "between a State and
the citizens of another State, ' ' does not extend that power to con-
CHISHOLM V. GEORGIA. 131
troversies to which, the United States are a party. Now it may be
said, if the word party comprehends both plaintiff and defend-
ant, it follows that the United States may be sued by any citi-
zen, between whom and them there may be a controversy. This
appears to me to be fair reasoning; but the same principles of
candor which urge me to mention this objection, also urge me
to suggest an important difference between the two cases. It is
this : In all eases of actions against States or individual citizens
the national courts are supported in all their legal and consti-
tutional proceedings and judgments by the arm of the executive
power of the United States ; but in cases of actions against the
United States, there is no power which the courts can call to their
aid. From this distinction important conclusions are deducible,
and they place the case of a State, and the case of the United
States, in very different points of view. . . .
For the reasons before given, I am clearly of opinion that a
State is suable by citizens of another State; but lest I should
be understood in a latitude beyond my meaning, I think it neces-
sary to subjoin this caution, namely. That such suability may
nevertheless not extend to all the demands, and to every kind
of action ; there may be exceptions. For instance, I am far from
being prepared to say that an individual may sue a State on bills
of credit issued before the constitution was established, and which
were issued and received on the faith of the State, and at a time
when no ideas or expectations of judicial interposition were
entertained or contemplated. . . .
[Mr. Justice "Wilson, Mr. Justice Gushing and Mr. Justice
Blair delivered concurring opinions. Mr. Justice Iredell de-
livered a dissenting opinion.]
Note. — While the Constitution was pending before the States, Hamilton
{The Federalist, No. 81), Marshall (Elliot's Delates, III, 555), and Madi-
son (26., Ill, 522), had expressed the opinion that the Federal courts were
given no jurisdiction of a suit by an individual against a State. The feeling
aroused in Georgia by the decision in the principal case was most bitter, as
was evidenced by a bill passed by the Georgia House but not adopted by the
Senate which provided that any Federal marshal attempting to carry the
judgment of the Supreme Court into execution "shall be guilty of felony,
and shall suffer death, without benefit of clergy, by being hanged."
Phillips, ' ' Georgia and State Eights, ' ' Annual Report of the American His-
torical Association for 1901, II, 27. Many of the States shared Georgia's
feeling, but expressed themselves more temperately. Two days after the
decision was announced, the Eleventh Amendment was proposed in Congress.
Since its adoption every State is exempt from suit in the Federal courts by
an individual, whether the suit be brought against the State eo nomine or
132 CASES ON CONSTITUTIONAL LAW.
against an officer of the State standing in such a relation to the controversy
that the suit is in reality against the State. An officer acting under color
of an invalid law is personally liable for his acts and a suit against him is
not a suit against the State. Poindexter v. Greenhow (1884), 114 U. S. 270;
Eeagan V. Farmers' Loan & Trust Go. (1894), 154 U. S. 362; Tindal v. Wesley
(1897), 167 U. S. 204; Smyth v. Ames (1898), 169 U. 8. 466; Ex parte
Young (1908), 209 U. S. 123. Good recent discussions of the exemption of
the States from suit are Hopkins v. demson Agricultural College (1911),
221 U. S. 636, and Lankford v. Platte Iron "Works (1915), 235 V. S. 461.
For an important interpretation of the Eleventh Amendment, see Cohens v.
Virginia (1821), 6 Wheaton, 264, and Osborn v. Bank of the United States
(1824), 9 Wheaton, 738. For a criticism of the principal case see Hans v.
Louisiana (1890), 134 U. S. 1, and for an estimate of the political importance
of the question involved see Chief Justice Cooley's lecture in Constitutional
History as Seen in American Law, 48.
COHENS V. THE STATE OP VIRGINIA.
StlPEEME COUBT OP THE UNITED STATES. 1821.
6 Wheaton, 264; 6 Lawyers' Ed. 257.
Marshall,, C. J., delivered the opinion of the court.
This is a writ of error to a judgment rendered in the court of
Hustings, for the borough of Norfolk, on an information for sell-
ing lottery tickets, contrary to an act of the legislature of Vir-
ginia. In the state court, the defendant claimed the protection
of an act of congress. A case was agreed between the parties,
which states the act of assembly on which the prosecution was
founded, and the act of congress on which the defendant relied,
and concludes in these words : "If upon this case the court shall
be of opinion that the acts of congress before mentioned were
valid, and, on the true construction of those acts, the lottery tick-
ets sold by the defendants as aforesaid, might lawfully be sold
within the State of Virginia, notwithstanding the act or statute
of the general assembly of Virginia prohibiting such sale, then
judgment to be entered for the defendants. And if the court
should be of opinion that the statute or act of the general assem-
bly of the State of Virginia, prohibiting such sale, is valid, not-
withstanding the said acts of congress, then judgment to be
entered that the defendants are guilty, and that the common-
wealth recover against them one hundred dollars and costs."
Judgment was rendered against the defendants ; and the court
in which it was rendered being the highest court of the State in
which the cause was cognizable, the record has been brought into
this court by writ of error.
COHENS V. STATE OF VIRGINIA. 133
The defendant in error moves to dismiss this writ, for want
of jurisdiction.
In support of this motion, three points have been made, and
argued with the ability which the importance of the question
merits. These points are : —
1. That a State is a defendant.
2. That no writ of error lies from this cour|; to a state court.
3. The third point has been presented in different forms by
the gentlemen who have argued it. The counsel who opened the
cause said that the want of jurisdiction was shown by the sub-
ject-matter of the case. The counsel who followed him said that
jurisdiction was not given by the Judiciary Act. The court has
bestowed all its attention on the arguments of both gentlemen,
and supposes that their tendency is to show that this court has no
jurisdiction of the case, or, in other words, has no right to review
the judgment of the state court, because neither the constitution
nor any law of the United States has been violated by that judg-
ment.
The questions presented to the court by the first two points
made at the bar are of great magnitude, and may be truly said
vitally to afiEect the Union. They exclude the inquiry whether
the constitution and laws of the United States have been vio-
lated by the judgment which the plaintiffs in error seek to re-
view; and maintain that, admitting such violation, it is not in
the power of the government to apply a corrective. They main-
tain that the nation does not possess a department capable of
restraining peaceably, and by authority of law, any attempts
which may be made, by a part, against the legitimate powers of
the whole ; and that the government is reduced to the alternative
of submitting to such attempts, or of resisting them by force.
They maintain that the constitution of the United States has pro-
vided no tribunal for the final construction of itself, or of the
laws or treaties of the nation ; but that this power may be exer-
cised in the last resort by the courts of every State in the Union.
That the constitution, laws, and treaties, may receive as many
constructions as there are States ; and that this is not a mischief,
or, if a mischief, is irremediable. These abstract propositions are
to be determined ; for he who demands decision without permit-
ting inquiry, affirms that the decision he asks does not depend
on inquiry.
If such be the constitution, it is the duty of the court to bow
with respectful submission to its provisions. If such be not the
constitution, it is equally the duty of this court to say so; and
134 CASES ON CONSTITUTIONAL LAW.
to perform that task which the American people have assigned
to the judicial department.
1. The first question to be considered is, whether the jurisdic-
tion of this court is excluded by the character of the parties, one
of them being a State, and the other a citizen of that State ?
The 2d section of the third article of the constitution de-
fines the extent of the judicial power of the United States. Juris-
diction is given to the courts of the Union in two classes of cases.
In the first, their jurisdiction depends on the character of the
cause, whoever may be the parties. This class comprehends ' ' 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. ' ' This clause extends the jurisdiction of
the court to all the cases described, without making in its terms
any exception whatever, and without any regard to the condition
of the party. If there be any exception, it is to be implied against
the express words of the article.
In the second class, the jurisdiction depends entirely on the
character of the parties. In this are comprehended ' ' controver-
sies between two or more States, between a State and citizens of
another State, " " and between a State and foreign states, citizens,
or subjects. ' ' If these be the parties, it is entirely unimportant
what may be the subject of controversy. Be it what it may, these
parties have a constitutional right to come into the courts of the
Union.
The counsel for the defendant in error have stated that the
cases which arise under the constitution must grow out of those
provisions which are capable of self-execution ; examples of which
are to be found in the 2d section of the 4th article, and in the
10th section of the first article.
A case which arises under a law of the United States must,
we are likewise told, be a right given by some act which becomes
necessary to execute the powers given in the constitution, of
which the law of naturalization is mentioned as an example.
The use intended to be made of this expression of the first part
of the section, defining the extent of the judicial power, is not
clearly understood. If the intention be merely to distinguish
cases arising under the constitution, from those arising under a
law, for the sake of precision in the application of this argument,
these propositions will not be controverted. If it be to maintain
that a case arising under the constitution, or a law, must be one
in which a party comes into court to demand something con-
ferred on him by the constitution or a law, we think the construe-
COHENS V. STATE OF VIRGINIA. 135
tion too narrow. A ease in law or equity consists of the right
of the one party, as well as of the other, and may truly be said
to arise under the constitution or a law of the United States,
whenever its correct decision depends on the construction of
either. Congress seems to have intended to give its own con-
struction of this part of the constitution, in the 25th section of
the Judiciary Act; and we perceive no reason to depart from
that construction.
The jurisdiction of the court, then, being extended by the let-
ter of the constitution to all eases arising under it, or under
the laws of the United States, it follows that those who would
withdraw any case of this description from that jurisdiction,
must sustain the exemption they claim on the spirit and true
meaning of the constitution, which spirit and true meaning
must be so apparent as to overrule the words which its framers
have employed.
The counsel for the defendant in error have undertaken to
do this; and have laid down the general proposition, that a sov-
ereign independent State is not suable, except by its own eon-
sent.
This general proposition will not be controverted. But its eon-
sent is not requisite in each particular case. It may be given in
a general law. And if a State has surrendered any portion of
its sovereignty, the question whether a liability to suit be a part
of this portion, depends on the instrument by which the sur-
render is made. If upon a just construction of that instrument,
it shall appear that the State has submitted to be sued, then it
has parted with this sovereign right of judging in every case on
the justice of its own pretensions, and has intrusted that power
to a tribunal in whose impartiality it confides.
The American States, as well as the American people, have
believed a close and firm Union to be essential to their liberty
and to their happiness. They have been taught by experience,
that this Union cannot exist without a government for the whole;
and they have been taught by the same experience that this
government would be a mere shadow, that must disappoint all
their hopes, unless invested with large portions of that sov-
ereignty which belongs to independent States. Under the influ-
ence of this opinion, and thus instructed by experience, the
American people, in the conventions of their respective States,
adopted the present constitution.
If it could be doubted whether, from its nature, it were not
supreme in all cases where it is empowered to act, that doubt
136 CASES ON CONSTITUTIONAL LAW.
would be removed by the declaration that "this constitution,
and the laws of the United States which shall be made in pursu-
ance thereof, and all treaties made, or which shall be made, under
the authority of the United States, shall be the supreme law of
the land ; and the judges in every State shall be bound thereby,
anything in the constitution or laws of any State to the con-
trary notwithstanding. ' '
This is the authoritative language of the American people;
and, if gentlemen please, of the American States. It marks
with lines too strong to be mistaken, the characteristic distinc-
tion between the government of the Union and those of the
States. The general government, though limited as to its ob-
jects, is supreme with respect to those objects. This principle
is a part of the constitution; and if there by any who deny its
necessity, none can deny its authority.
To this supreme government ample powers are confided ; and
if it were possible to doubt the great purposes for which they
were so confided, the people of the United States have declared
that they are given "in order to form a more perfect union,
establish justioe, insure domestic tranquillity, provide for the
common defense, promote the general welfare, and secure the
blessings of liberty to themselves and their posterity."
With the ample powers confided to this supreme government,
for these interesting purposes, are connected many express and
important limitations on the sovereignty of the States, which are
made for the same purposes. The powers of the Union on the
great subjects of war, peace, and commerce, and on many others,
are in themselves limitations of the sovereignty of the States ; but
in addition to these, the sovereignty of the States is surrendered
in many instances where the surrender can only operate to the
benefit of the people, and where, perhaps, no other power is con-
ferred on congress than a conservative power to maintain the
principles established in the constitution. The maintenance of
these principles in their purity is certainly among the great
duties of the government. One of the instruments by which
this duty may be peaceably performed is the judicial department.
It is authorized to decide all cases, of every description, arising
under the constitution or laws of the United States. From this
general grant of jurisdiction, no exception is made of those cases
in which a State may be a party. When we consider the situ-
ation of the government of the Union and of a State, in rela-
tion to each other; the nature of our constitution, the subordi-
nation of the state governments to the constitution; the great
COHENS V. STATE OF VIRGINIA. 137
purpose for which jurisdiction over all cases arising under the
constitution and laws of the United States, is confided to the
judicial department, are we at liberty to insert in this general
grant, an exception of those cases in which a State may be a
party? Will the spirit of the constitution justify this attempt
to control its words? We think it will not. We think a case
arising under the constitution or laws of the United States, is
cognizable in the courts of the Union, whoever may be the par-
ties to that case. . . .
It is most true that this court will not take jurisdiction if it
should not; but it is equally true, that it must take jurisdiction
if it should. The judiciary cannot, as the legislature may, avoid
a measure because it approaches the confines of the constitution.
We cannot pass it by because it is doubtful. With whatever
doubts, with whatever difficulties, a case may be attended, we
must decide it, if it be brought before us. We have no more
right to decline the exercise of jurisdiction which is given, than
to usurp that which is not given. The one or the other would
be treason to the constitution. Questions may occur which we
would gladly avoid ; but we cannot avoid them. All we can do
is, to exercise our best judgment, and conscientiously to perform
our duty. In doing this on the present occasion, we find this
tribunal invested with appellate jurisdiction in all cases arising
under the constitution and laws of the United States. We find
no exception to this grant, and we cannot insert one. . . .
We think, then, that as the constitution originally stood, the
appellate jurisdiction of this court, in all cases arising under
the constitution, laws, or treaties of the United States, was not
arrested by the circumstance that a State was a party.
This leads to a consideration of the 11th amendment.
It is in these words : ' ' The judicial power of the United States
shall not be construed to extend to any suit in law or equity
commenced or prosecuted against one of the United States, by
citizens of another State, or by citizens or subjects of any for-
eign State."
It is a part of our history, that, at the adoption of the con-
stitution, all the States were greatly indebted ; and the apprehen-
sion that these debts might be prosecuted in the federal courts,
formed a very serious objection to that instrument. Suits were
instituted; and the court maintained its jurisdiction. The alarm
was general ; and, to quiet the apprehensions that were so exten-
sively entertained, this amendment was proposed in Congress,
and adopted by the State legislatures. That its motive was not
138 CASES ON CONSTITUTIONAL LAW.
to maintain the sovereignty of a State from the degradation sup-
posed to attend a compulsory appearance before the tribunal of
the nation, may be inferred from the terms of the amendment.
It does not comprehend controversies between two or more States,
or between a State and a foreign state. The jurisdiction of the
court still extends to these cases ; and in these a State may still
be sued. "We must ascribe the amendment, then, to some other
cause than the dignity of a State. There is no difficulty in find-
ing this cause. Those who were inhibited from commencing a
suit against a State, or from prosecuting one which might be
commenced before the adoption of the amendment, were persons
who might probably be its creditors. There was not much reason
to fear that foreign or sister States would be creditors to any
considerable amount, and there was reason to retain the juris-
diction of the court in those cases, because it might be essential
to the preservation of peace. The amendment, therefore, ex-
tended to suits commenced or prosecuted by individuals, but not
to those brought by States.
The first impression made on the mind by this amendment is,
that it was intended for those cases, and for those only, in which
some demand against a State is made by an individual in the
courts of the Union. If we consider the causes to which it is to
be traced, we are conducted to the same conclusion. A general
interest might well be felt in leaving to a State the full power of
consulting its convenience in the adjustment of its debts, or of
other claims upon it; but no interest could be felt in so chang-
ing the relations between the whole and its parts, as to strip the
government of the means of protecting, by the instrumentality
of its courts, the constitution and laws from active violation.
Under the Judiciary Act, 1 Stats, at Large, 73, the effect of a
writ of error is simply to bring the record into court, and submit
the judgment of the inferior tribunal to re-examination. It does
not in any manner act upon the parties ; it acts only on the record.
It removes the record into the supervising tribunal. "Where, then,
a State obtains a judgment against an individual, and the court
rendering such judgment overrules a defense set up under the
constitution or laws of the United States, the transfer of this rec-
ord into the supreme court, for the sole purpose of inquiring
whether the judgment violates the constitution of the United
States, can, with no propriety, we think, be denominated a suit
commenced or prosecuted against the State whose judgment is so
far re-examined. Nothing is demanded from the State. No claim
COHENS V. STATE OF VIRGINIA. 139
against it of any description is asserted or prosecuted. The party
is not to be restored to the possession of anything. ... He
only asserts the constitutional right to have his defense examined
by that tribunal whose province it is to construe the constitution
and laws of the Union. . . .
The point of view in which this writ of error, with its citation,
has been considered uniformly in the courts of the Union, has
been well illustrated by a reference to the course of this court
in suits instituted by the United States. The universally re-
ceived opinion is, that no suit can be commenced or prosecuted
against the United States; that the Judiciary Act does not au-
thorize such suits. Yet writs of error, accompanied with cita-
tions, have uniformly issued for the removal of judgments in
favor of the United States into a superior court, where they
have like those in favor of an individual, been re-examined, and
affirmed or reversed. It has never been suggested that such a
writ of error was a suit against the United States, and therefore
not within the jurisdiction of the appellate court.
It is, then, the opinion of the court, that the defendant who
removes a judgment rendered against him by a state court into
this court, for the purpose of re-examining the question whether
that judgment be a violation of the constitution or laws of the
United States, does not commence- or prosecute a suit against the
State, whatever may be its opinion where the effect of the writ
may be to restore the party to the possession of a thing which
he demands.
But should we in this be mistaken, the error does not affect
the case now before the court. If this writ of error be a suit in
the sense of the 11th amendment, it is not a suit commenced or
prosecuted "by a citizen of another State, or by a citizen or
subjeot of any foreign state. " It is not then within the amend-
ment, but is governed entirely by the constitution as originally
framed, and we have already seen that, in its origin, the judicial
power was extended to all cases arising under the constitution
or laws of the United States, without respect to parties. ^
2. The second objection to the jurisdiction of the court is, that
its appellate power cannot be exercised, in any ease, over the
judgment of a state court.
This objection is sustained chiefly by arguments drawn from
the supposed total separation of the judiciary of a State from that
of the Union, and their entire independence of each other. The
I See Hans v. Louisiana (1890), 134 U. S. 1, 20.
140 CASES ON CONSTITUTIONAL LAW.
argument considers the federal judiciary as completely foreign
to that of a State; and as being no more connected with it, in
any respect whatever, than the court of a foreign state. If this
hypothesis be just, the argument founded on it is equally so;
but if the hypothesis be not supported by the constitution, the
argument fails with it.
This hypothesis is not founded on any words in the constitu-
tion, which might seem to countenance it, but on the unreason-
ableness of giving a contrary construction to words which seem
to require it; and on the incompatibility of the application of
the appellate jurisdiction to the judgments of state courts, with
that constitutional relation which subsists between the govern-
ment of the Union and the governments of those States which
compose it.
Let this unreasonableness, this total incompatibility, be ex-
amined.
That the United States form, for many, and for most impor-
tant purposes, a single nation, has not yet been denied. In war,
we are one people. In making peace, we are one people. In all
commercial regulations, we are one and the same people. In many
other respects, the American people are one; and the govern-
ment which is alone capable of controlling and managing their
interests, in all these respects, is the government of the Union.
It is their government, and in that character they have no other.
America has chosen to be, in many respects, and to many pur-
poses, a nation; and for all these purposes her government is
Complete ; to all these objects, it is competent. The people have
declared, that in the exercise of all the powers given for these
objects, it is supreme. It can, then, in efEecting these objects,
legitimately control all individuals or governments within the
American territory. The constitution and laws of a State, so
far as they are repugnant to the constitution and laws of the
United States, are absolutely void. These States are constitu-
ent parts of the United States. They are members of one great
empire,— for some purposes sovereign, for some purposes sub-
ordinate.
In a government so constituted, is it unreasonable that the
judicial power should be competent to give efficacy to the con-
stitutional laws of the legislature? That department can de-
cide on the validity of the constitution or law of a State, if it be
repugnant to the constitution or to a law of the United States.
Is it unreasonable that it should also be empowered to decide
on the judgment of a state tribunal enforcing such unconstitu-
COHENS V. STATE OP. VIRGINIA. 141
tional law ? Is it so very unreasonable as to furnish a justifica-
tion for controlling the words of the constitution?
"We think it is not. "We think that in a government aeknowl-
edgedly supreme, with respect to objects of vital interest to the
nation, there is nothing inconsistent with sound reason, nothing
incompatible with the nature of government, in making all its
departments supreme, so far as respects those objects, and so
far as is necessary to their attainment. The exercise of the
appellate power over those judgments of the state tribunals which
may contravene the constitution or laws of the United States,
is, we believe, essential to the attainment of those objects.
The propriety of intrusting the construction of the constitu-
tion, and laws made in pursuance thereof, to the judiciary of the
Union, has not, we believe, as yet, been drawn into question. It
seems to be a corollary from this political axiom, that the federal
courts should either possess exclusive jurisdiction in such eases,
or a power to revise the judgments rendered in them by the
state tribunals. If the federal and state courts have concur-
rent jurisdiction in all cases arising under the constitution, laws,
and treaties of the United States; and if a case of this descrip-
tion brought in a state court cannot be removed before judg-
ment, nor revised after judgment, then the construction of the
constitution, laws, and treaties of the United States is not con-
fided particularly to their judicial department, but is confided
equally to that department and to the state courts, however
they may be constituted. ' ' Thirteen independent courts, ' ' says a
very celebrated statesman (and we have now more than twenty
such courts), "of final jurisdiction over the same causes, arising
upon the same laws, is a hydra in government, from which noth-
ing but contradiction and confusion can proceed."
Dismissing the unpleasant suggestion, that any motives which
may not be fairly avowed, or which ought not to exist, can ever
influence a State or its courts, the necessity of uniformity, as
well as correctness in expounding the constitution and laws of
the United States, would itself suggest the propriety of vest-
ing in some single tribunal the power of deciding, in the last
resort, all cases in which they are involved.
We are not restrained, then, by the political relations between
the general and state governments, from construing the words of
the constitution, defining the judicial power, in their true sense.
We are not bound to construe them more restrictively than they
naturally import.
They give to the supreme court appellate jurisdiction in all
142 CASES ON CONSTITUTIONAL LAW.
cases arising under the constitution, laws, and treaties of the
United States. The words are broad enough to comprehend all
cases of this description, in whatever court they may be decided.
. . . Let the nature and objects of our Union be considered ;
let the great fundamental principles on which the fabric stands
, be examined ; and we think the result must be that there is noth-
ing so extravagantly absurd in giving to the court of the nation
the power of revising the decisions of local tribunals, on questions
which affect the nation, as to require that words which import
this power should be restricted by a forced construction. . . .
Motion denied.
The cause was thereupon argued on the merits. . . .
Judgment affirmed.
Note. — The constitutionality of the twenty-fifth section of the Judiciary
Act of 1789 had been upheld by Justice Story in Martin v. Hunter's
Lessee (1816), 1 Wheaton, 304.
THE CHEROKEE NATION v. THE STATE OF GEORGIA.
Supreme Cotjet of the United States. 1831.
5 Peters, 1; 8 Lawyers' Ed. 25.
This was an original bill filed in this court by the Cherokee
nation against the State of Georgia, and also a supplemental bill
by the same complainant against the same defendant, upon which
the complainant moved for a subpoena to the State, and also for
a temporary injunction to restrain the State from enforcing the
laws of Georgia within the territory alleged to belong exclusively
to the complainants. . . .
The bill set forth the complainants to be "the Cherokee nation
of Indians, a foreign state, not owing allegiance to the United
States, nor to any State of this Union, nor to any prince, poten-
tate, or state, other than their own."
"That from time immemorial, the Cherokee nation have com-
posed a sovereign and independent state, and in this character
have been repeatedly recognized, and still stand recognized, by
the United States, in the various treaties subsisting between their
nation and the Ureted States." And it proceeds to state when
these were made, and their substance, and shows how certain laws
of Georgia are repugnant thereto. . . .
No counsel appeared for the State of Georgia.
CHEROKEE. NATION v. STATE OF GEORGIA. 143
Maeshall, C. J., delivered the opinion of the court.
This bill is brought by the Cherokee nation, praying an in-
junction to restrain the State of Georgia from the execution of
certain laws of that State, which, as is alleged, go directly to anni-
hilate the Cherokees as a political society, and to seize, for the
use of Georgia, the lands of the nation which have been assured
to them by the United States in solemn treaties repeatedly made
and still in force. . . .
Before we can look into the merits of the ease, a preliminary
inquiry presents itself. Has this court jurisdiction of the cause ?
The 3d article of the constitution describes the extent of
the judicial power. The 2d section closes an enumeration of
the cases to which it is extended, with "controversies" "between
a State or the citizens thereof and foreign states, citizens, or sub-
jects." A subsequent clause of the same section gives the su-
preme court original jurisdiction in all cases in which a State
shall be a party. The party defendant may, then, unquestion-
ably be sued in this court. May the plaintiff sue in it 1 Is the
Cherokee nation a foreign state in the sense in which that term
is used in the constitution?
The counsel for the plaintiffs have maintained the affirmative
of this proposition with great earnestness and ability. So much
of the argument as was intended to prove the character of the
Cherokees as a state, as a distinct political society, separated from
others, capable of managing its own affairs and governing itself,
has, in the opinion of a majority of the judges, been completely
successful. They have been uniformly treated as a state from
the settlement of our country. The numerous treaties made by
them with the United States recognize them as a people capable
of maintaining the relations of peace and war, of being responsi-
ble in their political character for any violation of their engage-
ments, or for any aggression committed on the citizens of the
United States by any individual of their community. Laws
have been enacted in the spirit of these treaties. The acts of our
government plaiinly recognize the Cherokee nation as a state,
and the courts are bound by those acts.
A question of much more difficulty remains. Do the Chero-
kees constitute a foreign state in the sense of the constitution ?
The counsel have shown conclusively that they are not a State
of the Union, and have insisted that individually they are aliens,
not owing allegiance to the United States. An aggregate of aliens
composing a state' must, they say, be a foreign state. Each indi-
vidual being foreign, the whole must be foreign.
144 CASES ON CONSTITUTIONAL LAW.
This argument is imposing, but we must examine it more
closely before we yield to it. The condition of the Indians in
relation to the United States is perhaps unlike that of any other
two people in existence. In the general, nations not owing a
common allegiance are foreign to each other. The term foreign
nation is, with strict propriety, applicable by either to the other.
But the relation of the Indians to the United States is marked
by peculiar and cardinal distinctions which exist nowhere else.
The Indian territory is admitted to form a part- of the United
States. In all our maps, geographical treatises, histories, and
laws, it is so considered. In all our intercourse with foreign na-
tions, in our commercial regulations, in any attempt at intercourse
between Indians and foreign nations, they are considered as with-
in the jurisdictional limits of the United States, subject to many
of those restraints which are imposed upon our own citizens. They
acknowledge themselves in their treaties to be under the protec-
tion of the United States; they admit that the United States
shall have the sole and exclusive right of regulating the trade
with them, and managing all their affairs as they think proper ;
and the Cherokees in particular were allowed by the treaty of
Hopewell, 7 Statutes at Large, 18, which preceded the constitu-
tion, "to send a deputy of their choice, whenever they think
proper, to congress." Treaties were made with some tribes by
the State of New York, under a then unsettled construction of
the confederation, by which they ceded all their lands to that
State, taking back a limited grant to themselves, in which they
admit their dependence.
Though the Indians are acknowledged to have an unquestion-
able, and, heretofore, unquestioned right to the land they occupy,
until that right shall be extinguished by a voluntary cession to
our government; yet it may be doubted whether those tribes
which reside within the acknowledged boundaries of the United
States can, with strict accuracy, be denominated foreign nations.
They may, more correctly, perhaps, be denominated domestic
dependent nations. They occupy a territory to which we assert
a title independent of their will, which must take effect in point
of possession when their right of possession ceases. Meanwhile
they are in a state of pupilage. Their relation to the United
States resembles that of a ward to his guardian.
They look to our government for protection; rely upon its
kindness and its power ; appeal to it for relief to their wants ; and
address the President as their great father. They and their
country are considered by foreign nations, as well as by our-
CHEROKEE NATION v. STATE OP GEORGIA. 145
selves, as being so completely under the sovereignty of the United
States, that any attempt to acquire their lands, or to form a
political connection with them, would be considered by all as an
invasion of our territory, and an act of hostility.
These considerations go far to support the opinion that the
framers of our constitution had not the Indian tribes in view,
when they opened the courts of the Union to controversies be-
tween a State or the citizens thereof and foreign states.
In considering this subject, the habits and usages of the In-
dians, in their intercourse with their white neighbors, ought not
to be entirely disregarded. At the time the constitution was
framed, the idea of appealing to an American coiirt of justice
for an assertion of right or a redress of wrong, had, perhaps,
never entered the mind of an Indian or his tribe. Their appeal
was to the tomahawk, or to the government. This was well un-
derstood by the statesmen who framed the constitution of the
United States, and might furnish some reason for omitting to
enumerate them among the parties who might sue in the courts
of the Union. Be this as it may, the peculiar relations between
the United States and the Indians occupying our territory are
such that we should feel much difficulty in considering them as
designated by the term foreign state, were there no other part
of the constitution which might shed light on the meaning of
these words. But we think that in construing them, considerable
aid is furnished by that clause in the 8th section of the 1st
article, which empowers congress to "regulate commerce with
foreign nations, and among the several States, and with the In-
dian tribes."
In this clause they are as clearly contradistinguished by a name
appropriate to themselves, from foreign nations, as from the
several States composing the Union. They are designated by a
distinct appellation; and as this appellation can be applied to
neither of the others, neither can the appellation distinguishing
either of the others be in fair construction applied to them. The
objects, to which the power of regulating commerce might be
directed, are divided into three distinct classes — foreign nations,
the several States, and Indian tribes. "When forming this arti-
cle, the convention considered them as entirely distinct. We
cannot assume that the distinction was lost in framing a subse-
quent article, unless there be something in its language to au-
thorize the assumption.
The counsel for the plaintiffs contend that the words ' ' Indian
tribes" were introduced into the article empowering congress to
E. C- li.— Iff
146 CASES ON CONSTITUTIONAL LAW.
regulate commerce, for the purpose of removing those doubts in
which the management of Indian affairs was involved by the lan-
guage of the 9th article of the confederation. Intending to
give the whole power of managing those affairs to the govern-
ment about to be instituted, the convention conferred it explicitly,
and omitted those qualifications which embarrassed the exercise
of it as granted in the confederation. This may be admitted
without weakening the construction which has been intimated.
Had the Indian tribes been foreign nations, in the view of the
convention, this exclusive power of regulating intercourse with
them might have been, and most probably would have been, spe-
cifically given, in language indicating that idea, not in language
contradistinguishing them from foreign nations. Congress might
have been empowered "to regulate commerce with foreign
nations, including the Indian tribes, and among the several
States." This language would have suggested itself to statesmen
who considered the Indian tribes as foreign nations, and were
yet desirous of mentioning them particularly.
It has also been said that the same words have not necessarily
the same meaning attached to them when found in different parts
of the same instrument ; their meaning is controlled by the eon-
text. This is undoubtedly true. In common language, the same
word has various meanings, and the peculiar sense in which it is
used in any sentence is to be determined by the context. This
may not be equally true with respect to proper names. Foreign
nations, is a general term, the application of which to Indian
tribes, when used in the American constitution, is at best ex-
tremely questionable. In one article, in which a power is given to
be exercised in regard to foreign nations generally, and to the
Indian tribes particularly, they are mentioned as separate in
terms clearly contradistinguishing them from each other. We
perceive plainly that the constitution, in this article, does not
comprehend Indian tribes in the general term "foreign nations;"
not, we presume, because a tribe may not be a nation, but because
it is not foreign to the United States. When, afterwards, the
term "foreign states" is introduced, we cannot impute to the
convention the intention to desert its former meaning, and to
comprehend Indian tribes within it, unless the context force that
construction upon us. We find nothing in the context, and noth-
ing in the subject of the article, which leads to it.
The court has bestowed its best attention on this question, and,
after mature deliberation, the majority is of opinion that an
Indian tribe or nation within the United States is not a foreign
CHEROKEE NATION v. STATE OF GEORGIA. 147
state, in the sense of the constitution, and cannot maintain an
action in the courts of the United States.
A serious additional objection exists to the jurisdiction of the
court. Is the matter of the bill the proper subject for judicial
inquiry and decision? It seeks to restrain a State from the
forcible exercise of legislative power over a neighboring people,
asserting their independence ; their right to which the State de-
nies. On several of the matters alleged in the bill, for example
on the laws making it criminal to exercise the usual powers of
self-government in their own country by the Cherokee nation,
this court cannot interpose; at least in the form in which those
matters are presented.
That part of the bill which respects the land occupied by the
•Indians, and prays the aid of the court to protect their posses-
sion, may be more doubtful. The mere question of right might,
perhaps, be decided by this court in a proper case with proper
parties. But the court is asked to do more than decide on the
title. The bill requires us to control the legislature of Georgia,
and to restrain the exertion of its physical force. The propriety
of such an interposition by the court may be well questioned. It
savors too much of the exercise of political power to be within the
proper province of the judicial department. But the opinion
on the point respecting parties, makes it unnecessary to decide
this question.
If it be true that the Cherokee nation have rfghts, this is not
the tribunal in which those rights are to be asserted. If it be
true that wrongs have been inflicted, and that still greater are
to be apprehended, this is not the tribunal which can redress the
past or prevent the future.
The motion for an injunction is denied.
[Me. Justice Johnson and Mr. Justice Baldwin delivered
concurring opinions. Mr. Justice Thompson delivered a dis-
senting opinion in which Mr. Justice Story concurred.]
Note. — For many interesting details as to the circumstances giving rise
to this case and the later case of Worcester v. Georgia (1832), 6 Peters, 515,
and the effectual nullification of the decision in the latter by President Jack-
son and the authorities of Georgia, see Phillips, "Georgia and State
Eights," Annual Report of the American Historical Association for 1901,
vol. II. A valuable account of the subsequent dealings of the Federal Gov-
ernment with the Cherokee tribe is given in Eec}rman v. United States
(1912), 224 U. S. 413.
148 CASES ON CONSTITUTIONAL LAW.
LUTHER V. BORDEN.
Supreme Court of the United States. 1848.
7 Howard, 1; 12 Lawyers' Ed. 581.
Taney, C. J., delivered the opinion of the court.
This case has arisen out of the unfortunate political differ-
ences which agitated the people of Rhode Island in 1841 and
1842.
It is an action of trespass brought by Martin Luther, the plain-
tiff in error, against Luther M. Borden and other defendants, in
the circuit court of the United States for the district of Rhode
Island, for breaking and entering the plaintiff's house. The de-
fendants justify upon the ground that large numbers of men
were assembled in different parts of the State for the purpose of
overthrowing the government by military force, and were actu-
ally levying war upon the State; that, in order to defend itself
from this insurrection, the State was declared by competent au-
thority to be under martial law; that the plaintiff was engaged
in the insurrection; and that the defendants, being in the mili-
tary service of the State, by command of their superior officer,
broke and entered the house and searched the rooms for the plain-
tiff, who was supposed to be there concealed, in order to arrest
him, doing as little damage as possible. The plaintiff replied,
that the trespass was committed by the defendants of their own
proper wrong, and without any such cause ; and upon the issue
joined on this replication, the parties proceeded to trial. . . .
The existence and authority of the government under which the
defendants acted, was called in question ; and the plaintiff insists,
that, before the acts complained of were committed, that govern-
ment had been displaced and annulled by the people of Rhode
Island, and that the plaintiff was engaged in supporting the law-
ful authority of the State, and the defendants themselves were
in arms against it. . . .
The fourth section of the fourth article of the constitution of
the United States provides that the United States shall guarantee
to every State in the Union a republican form of government,
and shall protect each of them against invasion ; and on the ap-
plication of the legislature or of the executive (when the legis-
lature cannot be convened) against domestic violence.
Under this article of the constitution it rests with congress to
decide what government is the established one in a State. For
as the United States guarantee to each State a republican gov-
ernment, congress must necessarily decide what government is
LUTHER V. BORDEN. 149
established in the State before it can determine whether it is
republican or not. And when the senators and representatives
of a State are admitted into the councils of the Union, the author-
ity of the government under which they are appointed, as well
as its republican character, is recognized by the proper constitu-
tional authority. And its decision is binding on every other de-
partment of the government, and could not be questioned in a
judicial tribunal. It is true that the contest in this case did not
last long enough to bring the matter to this issue; and as no
senators or representatives were elected under the authority of
the government of which Mr. Dorr was the head, congress was
not called upon to decide the controversy. Yet the right to
decide is placed there, and not in the courts.
So, too, as relates to the clause in the above-mentioned article
of the constitution, providing for cases of domestic violence. It
rested with congress, too, to determine upon the means proper to
be adopted to fulfill this guarantee. They might, if they had
deemed it most advisable to do so, have placed it in the power
of a court to decide when the contingency had happened which
required the federal government to interfere. But congress
thought otherwise, and no doubt wisely ; and by the act of Feb-
ruary 28, 1795, provided, that, "in case of an insurrection in any
State against the government thereof, it shall be lawful for the
President of the United States, on application of the legislature
of such State or of the executive, when the legislature cannot be
convened, to call forth such number of militia of any other State
or States, as may be applied for, as he may judge sufficient to
suppress such insurrection. ' '
By this act, the power of deciding whether the exigency had
arisen upon which the government of the United States is bound
to interfere, is given to the President. He is to act upon the ap-
plication of the legislature, or of the executive, and consequently
he must detenmine what body of men constitute the legislature,
and who is the governor, before he can act. The fact that both
parties claim the right to the government, cannot alter the case,
for both cannot be entitled to it. If there is an armed conflict,
like the one of which we are speaking, it is a case of domestic
violence, and one of the parties must be in insurrection against
the lawful government. And the President must, of necessity,
decide which is the government, and which party is unlawfully
arrayed against it, before he can perform the duty imposed upon
him by the act of congress.
After the President has acted and called out the militia, is a
150 CASES ON CONSTITUTIONAL LAW.
circuit court of tlie United States authorized to inquire whether
his decision was right? Could the court, while the parties were
actually contending in arms for the possession of the govern-
ment, call witnesses before it, and inquire which party repre-
sented a majority of the people ? If it could, then it would be-
come the duty of the court (provided it came to the conclusion
that the President had decided incorrectly) to discharge those
who were arrested or detained by the troops in the service of the
United States, or the government which the President was en-
deavoring to maintain. If the judicial power extends so far, the
guarantee contained in the constitution of the United States is a
guarantee of anarchy, and not of order. Yet if this right does
not reside in the courts when the conflict is raging — ^if the judi-
cial power is, at that time, bound to follow the decision of the
political, it must be equally bound when the contest is over. It
cannot, when peace is restored, punish as offenses and crimes
the acts which it before recognized, and was bound to recognize,
as lawful.
It is true that in this case the militia were not called out by
the President. But upon the application of the governor under
the charter government, the President recognized him as the
executive power of the State, and took measures to call out the
militia to support his authority, if it should be found necessary
for the general government to interfere; and it is admitted in
the argument that it was the knowledge of this decision that put
an end to the armed opposition to the charter government, and
prevented any further efforts to establish by force the proposed
constitution. The interference of the President, therefore, by
announcing his determination, was as effectual as if the militia
had been assembled under his orders. And it should be equally
authoritative. For certainly no court of the United States, with
a knowledge of this decision, would have been justified in recog-
nizing the opposing party as the lawful government, or in treat-
ing as wrong-doers or insurgents the ofi&cers of the government
which the President had recognized, and was prepared to sup-
port by an armed force. In the case of foreign nations, the gov-
ernment acknowledged by the President is always recognized in
the courts of justice. And this principle has been applied by the
act of congress to the sovereign States of the Union.
It is said that this power in the President is dangerous to lib-
erty, and may be abused. All power may be abused if placed in
unworthy hands. But it would be difficult, we think, to point
out any other hands in which this power would be more safe,
LUTHER V. BORDEN. 151
and at the same time equally effectual. When citizens of the
same State are in arms against each other, and the constituted
authorities unable to execute the laws, the interposition of the
United States must be prompt, or it is of little value. The ordi-
nary course of proceedings in courts of justice would be utterly
unfit for the crisis. And the elevated office of the President,
chosen as he is by the people of the United States, and the high
responsibility he could not fail to feel when acting in a case of
so much moment, appear to furnish as strong safeguards against
a wilful abuse of power as human prudence and foresight could
well provide. At all events, it is conferred upon him by the con-
stitution and laws of the United States, and must, therefore, be
respected and enforced in its judicial tribunals.
A question very similar to this arose in the case of Martin v.
Mott, 12 Wheat. 29-31. The first clause of the first section of the
act of February 28, 1795, of which we have been speaking, author-
izes the President to call out the militia to repel invasion. It is
the second clause in the same section which authorizes the call to
suppress an insurrection against a state government. The power
given to the President in each case is the same, with this differ-
ence only, that it cannot be exercised by him in the latter case,
except upon the application of the legislature or executive of the
State. The case above mentioned arose out of a call made by the
President, by virtue of the power conferred by the first clause ;
and the court said that "whenever a statute gives a discretionary
power to any person, to be exercised by him upon his own opin-
ion of certain facts, it is a sound rule of construction that the
statute constitutes him the sole and exclusive judge of the exist-
ence of those facts." The ground upon which that opinion is
maintained are set forth in the report, and, we think, are con-
clusive. The same principle applies to the case now before the
court. Undoubtedly, if the President, in exercising this power
shall fall into error, or invade the rights of the people of the
State, it would be in the power of congress to apply the proper
remedy. But the courts must administer the law as they find
it. . . .
Much of the argument on the part of the plaintiff turned upon
political rights and political questions, upon which the court has
been urged to express an opinion. We decline doing so. The high
power has been conferred on this court of passing judgment upon
the acts of the state sovereignties, and of the legislative and ex-
ecutive branches of the federal government, and of determining
whether they are beyond the limits of power marked out for them
152 CASES ON CONSTITUTIONAL LAW.
respectively by the constitution of the United States. This tribu-
nal, therefore, should be the last to overstep the boundaries which
limit its own jurisdiction. And while it should always be ready
to meet any question confided to it by the constitution, it is
equally its duty not to pass beyond its appropriate sphere of
action, and to take care not to involve itself in discussions which
properly belong to other forums. No one, we believe, has ever
doubted the proposition, that, according to the institutions of
this country, the sovereignty in every State resides in the people
of the State, and that they may alter and change their form of
government at their own pleasure. But whether they have
changed it or not, by abolishing an old government, and estab-
lishing a new one in its place, is a question to be settled by the
political power. And when that power has decided, the courts
are bound to take notice of its decision, and to follow it.
The judgment of the circuit court must, therefore, ie affirmed.
"Woodbury, J., dissenting. . . .
Note. — For an account of the events out of which this case arose see
Mowry, Dorr's Eebellion. As to what is a republican form of government
see In re Duncan (1891), 139 U. S. 461, Taylor and Marshall v. Kentucky
(1900), 178 U. S. 548, and Pacific Telephone Co. v. Oregon (1912), 223 U.
S. 118. As to what is a political question, see United States v. HoUiday
(1866), 3 Wallace, 407, Lone Wolf v. Hitchcock (1903), 187 U. S. 553
(tribal relations of a group of Indians) ; Cherokee Nation v. Georgia (1831),
5 Peters, 1 (relation of an Indian tribe to a State) ; Tiger v. Western In-
vestment Co. (1911), 221 IT. S. 286 (when Indian guardianship shall cease) ;
United States v. Eealty Company (1896), 163 U. S. 427 (recognition of claims
against the United States) ; Martin v. Mott (1827), 12 Wheaton, 19 (neces-
sity of calling out the militia); Georgia v. Stanton (1868), 6 Wallace, 50
(the corporate rights of a State). All questions touching the international
relations of the country are within the peculiar province of the political
departments of the government. See The Nereide (1815), 9 Cranch. 388
(whether retaliatory measures toward another country shall be adopted) ;
Gelston v. Hoyt (1818), 3 Wheaton, 246, United States v. Palmer (1818),
3 Wheaton, 610, The Divina Pastora (1819), 4 Wheaton, 52, The Santissima
Trinidad (1822), 7 Wheaton, 283, Kennett v. Chambers (1852), 14 Howard,
38, The Three Friends (1897), 166 U. S. 1 (the recognition of the beUiger-
eney or independence of a foreign community) ; Foster v. Nielson (1829),
2 Peters, 253, United States v. Arredondo (1832), 6 Peters, 691; Garcia v.
Lee (1838), 12 Peters, 511, Ex parte Cooper (1892), 143 U. S. 472 (the
boundaries of the United States) ; Williams v. Suffolk Insurance Co. (1839),
13 Peters, 415, Jones v. United States (1890), 137 U. 8. 202, Pearoy v. Stran-
ahan (1907), 205 U. S. 257 (who is sovereign of foreign territory) ; Doe v.
Braden (1854), 16 Howard, 635 (whether a treaty with another country has
been sufficiently ratified by that country) ; Terlinden v. Ames (1901), 184
U. S. 270 (whether a treaty is still in force) ; Neeley v. Henkel (1901),
180 U. S. 109 (how long the military occupation of a foreign country shall
SOUTH DAKOTA v. NORTH CAROLINA. 153
continue) ; In re Baiz (1890), 135 U. S. 432 (status of one claiming to be
the diplomatic representative of anotlier country). In The Pelican (1809),
Edw. Adm., app. D, Sir William Grant said, "It always belongs to the gov-
ernment of the country to determine in what relation any other country
stands to it; that is a point upon which courts of justice cannot decide."
SOUTH DAKOTA v. NORTH CAROLINA.
Supreme Court op the United States. 1904.
192 U. S. 286; 48 Lawyers' Ed. 448.
Original.
[In 1866 the State of North Carolina authorized the issue of
bonds to complete the Western North Carolina Railway, with the
proviso that such bonds should be secured by mortgages of equiv-
alent amounts on. the stock owned by the State in another rail-
way. In 1901 the owners of a large part of the outstanding bonds
presented ten of them to the State of South Dakota, which then
filed a bill asking that North Carolina be required to pay the
amount due on the bonds and that in default of payment the
railway shares on the security of which the bonds were issued
might be sold.]
Me. Justice BEEVfER . . . delivered the opinion of the
court.
There can be no reasonable doubt of the validity of the bonds
and mortgages in controversy. There is no challenge of the stat-
utes by which they were authorized. . . . Neither can there
be any question respecting the title of South Dakota to these
bonds. They are not held by the State as representative of indi-
vidual owners, as in the ease of New Hampshire v. Louisiana,
108 U. S. 76, for they were given outright and absolutely to the
State. . . .
The title of South Dakota is as perfect as though it had re-
ceived these bonds directly from North Carolina. "We have, there-
fore, before us the case of a State with an unquestionable title to
bonds issued by another State, secured by a mortgage of railroad
stock belonging to that State, coming into this court and invok-
ing its jurisdiction to compel payment of those bonds and a sub-
jection of the mortgaged property to the satisfaction of the
debt.
Has this court jurisdiction of such a controversy, and to what
extent may it grant relief? Obviously, that jurisdiction is not
154 CASES ON CONSTITUTIONAL LAW.
affected fty the fact that the donor of these bonds could not in-
voke it. . . . Obviously, too, the subject-matter is one of
judicial cognizance. If anything can be considered as justici-
able it is a claim for money due on a written promise to pay
and if it be justifiable, does it matter how the plaintiff acquires
title, providing it be honestly acquired ? . . .
Coming now to the right of South Dakota to maintain this
suit against North Carolina, we remark that it is a controversy
between two States ; that by § 2, art. Ill of the Constitution this
court is given original jurisdiction of ' ' controversies between two
or more States," In Missouri v. Illinois and the Sanitary Dis-
trict of Chicago, 180 U. S. 208, Mr. Justice Shiras, speaking for
the court, reviewed at length the history of the incorporation of
this provision into the Federal Constitution, and the decisions
rendered by this court in respect to such jurisdiction, closing
with these words (p. 240) :
' ' The cases cited show that such jurisdiction has been exercised
in cases involving boundaries and jurisdiction over lands and
their inhabitants, and in cases directly affecting the property
rights and interests of a State."
The present case is one ' ' directly affecting the property rights
and interests of a State."
Although a repetition of this review is unnecessary, two or
three matters are worthy of notice. The original draft of the
Constitution reported to the convention gave to the Senate juris-
diction of all disputes and controversies "between two or more
States, respecting jurisdiction or territory," and to the Supreme
Court jurisdiction of ' ' controversies between two or more States,
except such as shall regard territory or jurisdiction." A claim
for money due being a controversy of a justiciable nature, and one
of the most common of controversies, would seem to naturally
fall within the scope of the jurisdiction thus intended to be con-
ferred upon the Supreme Court. In the subsequent revision by
the convention the power given to the Senate in respect to con-
troversies between the States was stricken out, as well as the
limitation upon the jurisdiction of this court, leaving to it in the
language now found in the Constitution jurisdiction without any
limitation of "controversies between two or more States."
The Constitution as it originally stood also gave to this court
jurisdiction of controversies "between a State and citizens of
another State." Under that clause Chisholm v. Georgia, 2 Dall.
419, was decided, in which it was held that a citizen of one State
might maintain in this court an action of assumpsit against
SOUTH DAKOTA v. NORTH CAROLINA. 155
another State. In consequence of that decision the Eleventh
Amendment was adopted, which provides that the "judicial
power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one
of the United States by citizens of another State, or by citizens
or subjects of any foreign State." It will be perceived that this
amendment only granted to a State immunity from suit by an
individual, and did not affect the jurisdiction over controversies
between two or more States. . . .
In Rhode Island v. Massachusetts, 12 Pet. 657, this court sus-
tained its jurisdiction of a suit in equity brought by one State
against another to determine a dispute as to boundary, and, in
the course of the opinion, by Mr. Justice Baldwin, said in respect
to the immunity of a sovereign from suit by an individual (p.
720):
* ' Those States, in their highest sovereign capacity, in the con-
vention of the people thereof, . . . adopted the Constitution,
by which they respectively made to the United States a grant of
judicial power over controversies between two or more States. By
the Constitution, it was ordained that this judicial power, in cases
where a State was a party, should be exercised by this court as
one of original jurisdiction. The States waived their exemption
from judicial power, (6 Wheat. 378, 380,) as sovereigns by orig-
inal and inherent right, by their own grant of its exercise over
themselves in such cases, but which they would not grant to any
inferior tribunal. By this grant, this court has acquired juris-
diction over the parties in this cause, by their own consent and
delegated authority; as their agent for executing the judicial
power of the United States in the eases specified. ' '
And, again, in reference to the extent of the jurisdiction of
this cdurt (p. 721) :
' ' That it is a controversy between two States cannot be denied ;
and though the Constitution does not, in terms, extend the judi-
cial power to all controversies between two or more States, yet it,
in terms, excludes none, whatever may be their nature or sub-
ject."
In United States v. North Carolina, 136 U. S. 211, we took
jurisdiction of an action brought by the United States against
North Carolina to recover interest on bonds, and decided the case
upon its merits. It is true there was nothing in the opinion in
reference to the matter of jurisdiction, but as said in United
States V. Texas, 143 U. S. 621, 642 : . . .
"But it did not escape the attention of the court, and the
156 CASES ON CONSTITUTIONAL LAW.
judgment would not have been rendered except upon the theory
that this court has original jurisdiction of a suit by the United
States against a State."
See also United States v. Michigan, 190 U. S. 379, decided at
the last term, in which a bill in equity for an accounting and a
recovery of money was sustained. . . .
Without noticing in detail the other cases referred to by Mr.
Justice Shiras in Missouri v. Illinois et al., 180 U. S. 208, it is
enough to say that the clear import of the decisions of this court
from the beginning to the present time is in favor of its juris-
diction over an action brought by one State against another, to
enforce a property right. Chisholm v. Georgia was an action of
assumpsit; United States v. North Carolina, an action of debt;
United States v. Michigan, a suit for an accounting; and that
which was sought in each was a money judgment against the de-
fendant State.
But we are confronted with the contention that there is no
power in this court to enforce such a judgment, and such lack of
power is conclusive evidence that, notwithstanding the general
language of the Constitution, there is an implied exception of ac-
tions brought to recover money. The public property held by
any municipality, city, county, or State is exempt from seizure
upon execution, because it is held by such corporation, not as a
part of its private assets, but as a trustee for public purposes.
Meriwether v. Garrett, 102 U. S. 472, 513. As a rule, no such
municipality has any private property subject to be taken upon
execution. A levy of taxes is not within the scope of the judicial
power except as it commands an inferior municipality to execute
the power granted by the legislature.
In Rees v. City of Watertown, 19 Wall. 107, 116, 117, we said :
"We are of the opinion that this court has not the power to
direct a tax to be levied for the payment of these judgments.
This power to impose burdens and raise money is the highest
attribute of sovereignty, and is exercised, first, to raise money for
public purposes only; and, second, by the power of legislative
authority only. It is a power that has not been extended to the
judiciary. Especially is it beyond the power of the Federal
judiciary to assume the place of a State in the exercise of this
authority, at once so delicate and so important." . . .
Further, in this connection may be noticed Gordon v. United
States, 117 U. S. 697, in which this court declined to take juris-
diction of an appeal from the Court of Claims, under the statute
as it stood at the time of the decision, on the ground that there
SOUTH DAKOTA v. NORTH CAROLINA. 157
was not vested by the act of Congress power to enforce its judg-
ment. We quote the following from the opinion, which was the
last prepared by Chief Justice Taney (pp. 702, 704) :
"The award of execution is a part, and an essential part, of
every judgment passed by a court exercising judicial power. It
is no judgment, in the legal sense of the term, without it. "With-
out such an award the judgment would be inoperative and nuga-
tory, leaving the aggrieved party without a remedy. . . .
Indeed, no principle of constitutional law has been more firmly
established or constantly adhered to than the one above stated, —
that is, that this court has no jurisdiction in any case where it
cannot render judgment in the legal sense of the term ; and wheill
it depends upon the legislature to carry its opinion into effect
or not at the pleasure of Congress. ' ' See also In re Sanborn, 148
U. S. 222, and La Abra Silver Mining Co. v. United States, 175
U. S. 423, 456.
We have, then, on the one hand the general language of the
Constitution, vesting jurisdiction in this court over "controver-
sies between two or more States," the history of that jurisdic-
tional clause in the convention, the cases of Chisholm v. Georgia,
United States v. North Carolina, and United States v. Michigan,
(in which this court sustained jurisdiction over actions to recover
money from a State,) the manifest trend of other decisions, the
necessity of some way of ending controversies between States, and
the fact that this claim for the payment of money is one justicia-
ble in its nature; on the other, certain expression of individual
opinions of justices of this court, the difficulty of enforcing a
judgment for money against a State by reason of its ordinary
lack of private property subject to seizure upon execution, and
the absolute inability of a court to compel a levy of taxes by the
legislature. Notwithstanding the embarrassments which sur-
round the question, it is directly presented, and may have to be
determined before the case is finally concluded, but for the pres-
ent it is sufficient to state the question with its difficulties.
There is in this case a mortgage of property, and the sale of
that property under a foreclosure may satisfy the plaintiff's
claim. If that should be the result, there would be no necessity
for a personal judgment against the State. That the State is a
necessary party to the foreclosure of the mortgage was settled by
Christian v. Atlantic & N. C. R. Co., 133 U. S. 233. Equity is
satisfied by a decree for a foreclosure and sale of the mortgaged
property, leaving the question of a judgment over for any de-
ficiency to be determined when, if ever, it arises. And surely if.
158 CASES ON CONSTITUTIONAL LAW.
as we have often held, this court has jurisdiction of an action
by one State against another to recover a tract of land, there
would seem to be no doubt of the jurisdiction of one to enforce
the delivery of personal property.
A decree will, therefore, be entered, which, after finding the
amount due on the bonds and coupons in suit to be twenty-seveif
thousand four hundred dollars ($27,400), (no interest being re-
coverable. United States v. North Carolina, 136 U. S. 211), and
that the same are secured by 100 shares of the stock of the North
Carolina Railroad Company, belonging to the State of North
Carolina, shall order that the said State of North Carolina pay
said amount with costs of suit to the State of South Dakota on or
before the 1st Monday of January, 1905, and that in default of
such payment an order of sale be issued to the Marshal of this
court, directing him to sell at public auction all the interests of
the State of North Carolina in and to one hundred shares of the
capital stock of the North Carolina Railroad Company, such sale
to be made at the east front door of the Capitol Building in this
tity, public notice to be given of such sale by advertisements once
a week for six weeks in some daily paper published in the City
of Raleigh, North Carolina, and also in some daily paper pub-
lished in the City of Washington.
And either of the parties to this suit may apply to the court
upon the foot of this decree, as occasion may require.
Mr. Justice White, with whom concurred Mb. Chief Justice
FuLLEE, Mr. Justice McKjenna, and Mr. Justice Day, dis-
senting. . . .
Note. — Of the later history of this case. Justice Brewer said: "If the
amount received from the sale of the stock had not paid the bonds,
the question would have been presented whether we could render a money
judgment against a State; and, if so, how it could be enforced. We could
not compel the Legislature of North Carolina to meet and pass an act; the
marshal could not levy upon the public buildings of the State; what would
be the significance of a judgment which the court was powerless to enforce?
You may remember as an historical fact that Andrew Jackson once said,
'John Marshall has rendered a judgment, now let him enforce it if he can.'
"The day before that fixed for the sale of those bonds the Attorney-
General of North Carolina came to my house, for I was the organ of the
court in delivering the opinion, and said that he had been sent by the Gov-
ernor to pay the full amount that we had found to be due; that the State
did not intend to raise any question as to what could or should be done in
case of a deficiency after the sale of the stock, and that inasmuch as the
court created by the Constitution and charged with the duty of determining
controversies between the States had declared that a certain sum was due
from North Carolina to South Dakota he was directed by the State to pay
SOUTH DAKOTA v. NORTH CAROLINA. 159
that; every dollar, as well as the cost of the case. And then and there he
did so." — Report of the Thirteenth Annual Meeting of the Lake Mohonk
Conference on International Arbitration, 1907, pp. 170-171.
For the settlement of controversies between the States under the Articles
of Confederation, see 131 U. S. Appendix, 1, Ixiii. Most of the suits be-
tween States which have arisen since the adoption of the Constitution have
related to boundary disputes. See New Jersey v. New York (1831), 5
Peters 284; Missouri v. Iowa (1849), 7 Howard, 660; Florida v. Georgia
(1850), 11 Howard, 293; Florida v. Georgia (1855), 17 Howard, 478; Ala-
bama V. Georgia (1860), 23 Howard, 505; Virginia v. West Virginia (1870),
11 Wallace, 39; South Carolina v. Georgia (1876), 93 U. S. 4; Indiana v.
Kentucky (1890), 136 U. S. 479; Virginia v. Tennessee (1895), 158 U. S.
267; Louisiana v. Mississippi (1902), 202 IT. S. 158; Iowa v. lUinois (1906),
202 U. S. 59. For a suit involving a pecuniary demand, see Virginia v. West
Virginia (1907), 206 U. S. 290, (1908), 209 U. S. 514, (1911), 220 U. S.
1, (1914), 234 U. S. 117, (1915), 238 U. S. 202. While the language of the
Constitution conferring upon the Federal courts jurisdiction over suits
between States is unqualified, it has been held that not all controversies be-
tween States are justifiable in their nature. Wisconsin v. Pelican Insurance
Co. (1888), 127 U. S. 265, Louisiana v. Texas (1900), 176 U. S. 1. In suits
between States it must appear that the plaintiff State is not a mere cloak for
the real party in interest. New Hampshire v. Louisiana (1883), 108 U. S. 76,
but a State may sue when the interest involved is that of a considerable
number of its citizens rather than that of the State itself. Missouri v.
Illinois & Chicago District (1901), 180 IT. S. 208. The law governing suits
between States is fully discussed in Kansas v. Colorado (1902), 185 U. S.
125, same case at a later stage (1907), 206 U. S. 46. These opinions merit
careful study.
As to suits by the United States against a State, see United States v.
North Carolina (1890), 136 U. S. 211, United States v. Texas (1891), 143
U. S. 621, and United States v. Michigan (1903), 190 U. S. 379. As to
suits by a State against the United States, see United States v. Lee (1882),
106 U. S. 196; Minnesota v. Hitchcock (1902), 185 U. S. 373; Oregon v.
Hitchcock (1906), 202 U. S. 60; Kansas v. United States (1907), 204
U. S. 33L
CHAPTER IV.
THE IMPAIRMENT OF CONTRACTS.
No State shall . . . pass any . . . law impairing the
obligation of contracts.
Constitution of the United States, Art. I, sec. 10.
Section 1. "What is a "Contract."
THE TRUSTEES OP DARTMOUTH COLLEGE v. WOOD-
,WARD.
Supreme Coubt op the United States. 1819.
4 Wheaton, 518; 4 Lawyers' Ed. 629.
Error to the superior court of the State of New Hampshire.
Marshall, C. J., delivered the opinion of the court. . . .
This is an action of trover brought by the Trustees of Dart-
mouth College against William H. Woodward, in the state court
of New Hampshire, for the book of records, corporate seal, and
other corporate property, to which the plaintiflEs allege themselves
to be entitled.
A special verdict, after setting out the rights of the parties,
finds for the defendant, if certain acts of the legislature of New
Hampshire, passed on the 27th of June, and on the 18th of De-
cember, 1816, be valid, and binding on the trustees without their
assent, and not repugnant to the constitution of the United
States; otherwise it finds for the plaintiffs.
The superior court of judicature of New Hampshire rendered
a judgment upon this verdict for the defendant, which judgment
has been brought before this court by writ of error. The single
question now to be considered is, do the acts to which the verdict
refers violate the constitution of the United States?
This court can be insensible neither to the magnitude nor to
the delicacy of this question. The validity of a legislative act is
to be examined; and the opinion of the highest law tribunal of
a State is to be revised ; an opinion which carries with it intrinsic
evidence of the diligence, of the ability, and the integrity with
which it was formed. On more than one occasion this court has
expressed the cautious circumspection with which it approaches
160
DARTMOUTH COLLEGE v. WOODWARD. 161
the consideration of such questions ; and has declared that, in no
doubtful case, would it pronounce a legislative act to be contrary
to the constitution. But the American people have said, in the
constitution of the United States, that "no State shall pass any
bill of attainder, ex post facto law, or law impairing the obliga-
tion of contracts." In the same instrument they have also said,
"that the judicial power shall also extend to all cases in law
and equity arising under the constitution." On the judges of
this court, then, is imposed the high and solemn duty of protect-
ing, from even legislative violation, those contracts which the
constitution of our country has placed beyond legislative control ;
and, however irksome the task may be, this is a duty from which
we dare not shrink.
The title of the plaintiffs originates in a charter dated the 13th
day of December, in the year 1769, incorporating twelve persons
therein mentioned, by the name of "The Trustees of Dartmouth
College," granting to them and their successors the usual cor-
porate privileges and powers, and authorizing the trustees, who
are to govern the college, to fill up all vacancies which may be
created in their own body.
The defendant claims under three acts of the legislature of
New Hampshire, the most material of which was passed on the
27th of June, 1816, and is entitled "An act to amend the charter,
and enlarge and improve the corporation of Dartmouth College. ' '
Among other alterations in the charter, this act increases the
number of trustees to twenty-one, gives the appointment of the
additional members to the executive of the State, and creates a
board of overseers, with power to inspect and control the most
important acts of the trustees. This board consists of twenty-
five persons. The president of the senate, the speaker of the
house of representatives of New Hampshire, and the governor
and lieutenant-governor of Vermont, for the time being, are to
be members ex officio. The bostrd is to be completed by the gov-
ernor and council of New Hampshire, who are also empowered
to fill all vacancies which may occur. The acts of the 18th and
26th of December are supplemental to that of the 27th of June,
and are principally intended to carry that act into effect.
The majority of the trustees of the college have refused to
accept this amended charter, and have brought this suit for the
corporate property, which is in possession of a person holding
by virtue of the acts which have been stated.
It can require no argument to prove that the circumstances of
this case constitute a contract. An application is made to the
E. C. L.— 11
162 CASES ON CONSTITUTIONAL LAW.
crown for a charter to incorporate a religious and literary insti-
tution. In the application it is stated that large contributions
have been made for the object, which will be conferred on the
corporation as soon as it shall be created. The charter is granted,
and on its faith the property is conveyed. Surely in this trans-
action every ingredient of a complete and legitimate contract is
to be found.
The points for consideration are,
1. Is this contract protected by the constitution of the United
States?
2. Is it impaired by the acts under which the defendant holds ?
1. On the first point it has been argued that the word "con-
tract," in its broadest sense, would comprehend the political rela-
tions between the government and its citizens, would extend to
offices held within a State for state purposes, and to many of
those laws concerning civil institutions, which must change with
circumstances, and be modified by ordinary legislation ; which
deeply concern the public, and which, to preserve good govern-
ment, the public judgment must control. That even marriage
is a contract, and its obligations are affected by the laws respect-
ing divorces. That the clause in the constitution, if construed in
its greatest latitude, would prohibit these laws. Taken in its
broad, unlimited sense, the clause would be an unprofitable and
vexatious interference with the internal concerns of a State,
would unnecessarily and unwisely embarrass its legislation, and
render immutable those civil institutions which are established for
purposes of internal government, and which, to subserve those
purposes, ought to vary with varying circumstances. That as the
framers of the constitution could never have intended to insert
in that instrument a provision so unnecessary, so mischievous,
and so repugnant to its general spirit, the term "contract" must
be understood in a more limited sense. That it must be under-
stood as intended to guard against a power of at least doubtful
utility, the abuse of which had been extensively felt, and to re-
strain the legislature in future from violating the right to prop-
erty. That anterior to the formation of the constitution, a course
of legislation had prevailed in many, if not in all, of the States,
which weakened the confidence of man in man, and embarrassed
all transactions between individuals, by dispensing with a faith-
ful performance of engagements. To correct this mischief, by
restraining the power which produced it, the State legislatures
were forbidden "to pass any law impairing the obligation of con-
tracts," that is, of contracts respecting property, under which
DARTMOUTH COLLEGE v. WOODWARD. 163
some individual could claim a right to something beneficial to
himself; and that since the clause in the constitution must in
construction receive some limitation, it may be confined, and
ought to be confined, to cases of this description ; to cases within
the mischief it was intended to remedy.
The general correctness of these observations cannot be con-
troverted. That the framers of the constitution did not intend
to restrain the States in the regulation of their civil institutions,
adopted for internal goveriiment, and that the instrument they
have given us is not to be so construed, may be admitted. The
provision of the constitution never has been understood to em-
brace other contracts than those which respect property or. some
object of value, and confer rights which may be asserted in a
court of justice. It has never been understood to restrict the
general right of the legislature to legislate on the subject of
divorces. Those acts enable some tribunal, not to impair a mar-
riage contract, but to liberate one of the parties because it has
been broken by the other. When any State legislature shall pass
an act annulling all marriage contracts', or allowing either party
to annul it without the consent of the other, it will be time enough
to inquire whether such an act be constitutional.
The parties in this case differ less on general principles, less
on the true construction of the constitution in the abstract, than
on the application of those principles to this case, and on the
true construction of the charter of 1769. This is the point on
which the cause essentially depends. If the act of incorporation
be a grant of political power, if it creates a civil institution to be
employed in the administration of the government, or if the
funds of the college be public property, or if the State of New
Hampshire, as a government, be alone interested in its transac-
tions, the subject is one in which the legislature of the State
may act according to its own judgment, unrestrained by any lim-
itation of its power imposed by the constitution of the United
States.
But if this be a private eleemosynary institution, endowed with
a capacity to take property for objects unconnected with govern-
ment, whose funds are bestowed by individuals on the faith of
the charter ; if the donors have stipulated for the future disposi-
tion and management of those funds in the manner prescribed
by themselves ; there may be more difficulty in the case, although
neither the persons who have made these stipulations, nor those'
for whose benefit they were made, should be parties to the cause.
Those who are no longer interested in the property may yet retain
164 CASES ON CONSTITUTIONAL LAW.
such an interest in the preservation of their own arrangements
as to have a right to insist that those arrangements shall be held
sacred. Or, if they have themselves disappeared, it becomes a
subject of serious and anxious inquiry, whether those whom they
have legally empowered to represent them forever, may not assert
all the rights which they possessed while in being; whether, if
they be without personal representatives who may feel injured
by a violation of the compact, the trustees be not so completely
their representatives in the eye of the law, as to stand in their
place, not only as respects the government of the college, but
also as respects the maintenance of the college charter.
It becomes then the duty of the court most seriously to exam-
ine this charter, and to ascertain its true character.^ . . .
From this review of the charter, it appears that Dartmouth
College is an eleemosynary institution, incorporated for the pur-
pose of perpetuating the application of the bounty of the donors
to the specified objects of that bounty ; that its trustees or gov-
ernors were originally named by the founder, and invested with
the power of perpetuating themselves; that they are not public
officers, nor is it a civil institution, participating in the admin-
istration of government; but a charity school, or a seminary of
education, incorporated for the preservation of its property, and
the perpetual application of that property to the objects of its
creation.
Yet a question remains to be considered of more real difficulty,
on which more doubt has been entertained than on all that have
been discussed. The founders of the college, at least those whose
contributions were in money, have parted with the property be-
1 In the passages here omitted occurs Marshall 's famous description of
a corporation : "A corporation is an artificial being, invisible, intangible,
and existing only in contemplation of law. Being the mere creature of law,
it possesses only those properties which the charter of its creation confers
upon it, either expressly or as incidental to its very existence. These are
such as are supposed best calculated to effect the object for which it was
created. Among the most important are immortality, and, if the expres-
sion may be allowed, individuality; properties, by which a perpetual suc-
cession of many persons are considered as the same, and may act as a single
individual. They enable a corporation to manage its own affairs, and to
hold property without the perplexing intricacies, the hazardous and endless
necessity, of perpetual conveyances for the purpose of transmitting it
from hand to hand. It is chiefly for the purpose of clothing bodies of men
in succession with these qualities and capacities that corporations were in-
vented and are in use. By these means, a perpetual succession of individ-
uals are capable of acting for the promotion of the particular object, like
one immortal being. ' '
DARTMOUTH COLLEGE v. WOODWARD. 165
stowed upon it, and their representatives have no interest in that
property. The donors of land are equally without interest, so
long as the corporation shall exist. Could they be found, they
are unaffected by any alteration in its constitution, and probably
regardless of its form or even of its existence. The students are
fluctuating, and no individual among our youth has a vested in-
terest in the institution, which can be asserted in a court of jus-
tice. Neither the founders of the college, nor the youth for whose
benefit it was founded, complain of the alteration made in its
charter, or think themselves injured by it. The trustees alone
complain, and the trustees have no beneficial interest to be pro-
tected. Can this be such a contract as the constitution intended
to withdraw from the power of State legislation ? Contracts, the
parties to which have a vested beneficial interest, and those only,
it has been said, are the objects about which the constitution is
solicitous, and to which its protection is extended.
The court has bestowed on this argument the most deliberate
consideration, and the result will be stated. Dr. Wheelock, act-
ing for himself and for those who, at his solicitation, had made
contributions to his school, applied for this charter, as the instru-
ment which should enable him and them to perpetuate their
beneficent intention. It was granted. An artificial, immortal
being was created by the crown, capable of receiving and distrib-
uting forever, according to the will of the donors, the donations
which should be made to it. On this being, the contributions
which had been collected were immediately bestowed. These gifts
were made, not indeed to make a profit for the donors or their
posterity, but for something, in their opinion, of inestimable
value ; for something which they deemed a full equivalent for the
money with which it was purchased. The consideration for which
they stipulated, is the perpetual application of the fund to its
object, in the mode prescribed by themselves. Their descendants
may take no interest in the preservation of this consideration.
But in this respect their descendants are not their representa-
tives. They are represented by the corporation. The corpora-
tion is the assignee of their rights, stands in their place, and dis-
tributes their bounty, as they would themselves have distributed
it had they been immortal. So with respect to the students who
are to derive learning from this source. The corporation is a
trustee for theni also. Their potential rights, which, taken dis-
tributively, are imperceptible, amount collectively to a most im-
portant interest. These are, in the aggregate, to be exercised,
asserted, and protected by the corporation. They were as com-
166 CASES ON CONSTITUTIONAL LAW.
pletely out of the donors, at the instant of their being vested in
the corporation, and as incapable of being asserted by the stu-
dents, as at present.
According to the theory of the British constitution, their par-
liament is omnipotent. To annul corporate rights might give a
shock to public opinion, which that government has chosen to
avoid ; but its power is not questioned. Had parliament, imme-
diately after the emanation of this charter, and the execution of
those conveyances which followed it, annulled the instrument,
so that the living donors would have witnessed the disappoint-
ment of their hopes, the perfidy of the transaction would have
been universally acknowledged. Yet then, as now, the donors
would have had no interest in the property ; then, as now, those
who might be students would have had no rights to be violated ;
then, as now, it might be said that the trustees, in whom the
rights of all were combined, possessed no private, individual,
beneficial interest in the property confided to their protection.
Yet the contract would at that time have been deemed sacred by
all. What has since occurred to strip it of its inviolability ? Cir-
cumstances have not changed it. In reason, in justice, and in
law, it is now what it was in 1769.
This is plainly a contract to which the donors, the trustees, and
the crown, (to whose rights and obligations New Hampshire suc-
ceeds,) were the original parties. It is a contract made on a valu-
able consideration. It is a contract for the security and disposi-
tion of property. It is a contract, on the faith of which, real and
personal estate has been conveyed to the corporation. It is then
a contract within the letter of the constitution, and within its
spirit also, unless the fact that the property is invested by the
donors in trustees, for the promotion of religion and education,
for the benefit of persons who are perpetually changing, though
the objects remain the same, shall create a particular exception,
taking this case out of the prohibition contained in the constitu-
tion.
It is more than possible that the preservation of rights of this
description was not particularly in the view of the framers of
the constitution, when the clause under consideration was intro-
duced into that instrument. It is probable that interferences of
more frequent recurrence, to which the temptation was stronger,
and of which the mischief was more extensive, constituted the
great motive for imposing this restriction on the State legisla-
tures. But although a particular and a rare case may not, in
itself, be of sufficient magnitude to induce a rule, yet it must be
DARTMOUTH COLLEGE v. WOODWARD. 167
governed by the rule, when established, unless some plain and
strong reason for excluding it can be given. It is not enough
to say, that this particular case was not in the mind of the eon^
vention, when the article was framed, nor of the American people,
when it was adopted. It is necessary to go farther, and to say
that, had this particular case been suggested, the language would
have been so varied as to exclude it, or it would have been made
a special exception. The case, being within the words of the rule,
must be within its operation likewise, unless there be something
in the literal construction so obviously absurd or mischievous,
or repugnant to the general spirit of the instrument, as to justify
those who expound the constitution in making it an exception.
On what safe and intelligible ground can this exception stand ?
There is no expression in the constitution, no sentiment delivered
by its contemporaneous expounders, which would justify us in
making it. In the absence of all authority of this kind, is there,
in the nature and reason of the case itself, that which would sus-
tain a construction of the constitution, not warranted by its
words ? Are contracts of this description of a character to excite
so little interest that we must exclude them from the provisions
of the constitution, as being unworthy of the attention of those
who framed the instrument? Or does public policy so imperi-
ously demand their remaining exposed to legislative alteration
as to compel us, or rather permit us to say, that these words,
which were introduced to give stability to contracts, and which,
in their plain import, comprehend this contract, must yet be so
construed as to exclude it?
Almost all eleemosynary corporations, those which are created
for the promotion of religion, of charity, or of education, are of
the same character. The law of this case is the law of all. In
every literary or charitable institution, unless the objects of the
bounty be themselves incorporated, the whole legal interest is in
trustees, and can be asserted only by them. The donors, or claim-
ants of the bounty, if they can appear in court at all, can appear
only to complain of the trustees. In all other situations, they
are identified with, and personated by, the trustees, and their
rights are to be defended and maintained by them. Religion,
charity, and education are, in the law of England, legatees or
donees, capable of receiving bequests or donations in this form.
They appear in court, and claim or defend by the corporation.
Are they of so little estimation in the United States, that con-
tracts for their benefit must be excluded from the protection of
words which, in their natural import, include them ? Or do such
168 CASES ON CONSTITUTIONAL LAW.
contracts so necessarily require new modelling, by the authority
of the legislature, that the ordinary rules of construction must be
disregarded in order to leave them exposed to legislative altera-
tion?
All feel that these objects are not deemed unimportant in the
United States. The interest which this case has excited proves
that they are not. The framers of the constitution did not deem
them unworthy of its care and protection. They have, though
in a different mode, manifested their respect for science by re-
serving to the government of the Union the power "to promote
the progress of science and useful arts, by securing for limited
times, to authors and inventors, the exclusive right to their re-
spective writings and discoveries." They have so far withdrawn
science and the useful arts from the action of the State govern-
ments. "Why, then, should they be supposed so regardless of con-
tracts made for the advancement of literature, as to intend to
exclude them from provisions made for the security of ordinary
contracts between man and man ? No reason for making this sup-
position is perceived.
If the insignificance of the object does not require that we
should exclude contracts respecting it from the protection of the
constitution, neither, as we conceive, is the policy of leaving
them subject to legislative alteration, so apparent as to require a
forced construction of that instrument in order to effect it. These
eleemosynary institutions do not fill the place which would other-
wise be occupied by government, but that which would otherwise
remain vacant. They are complete acquisitions to literature.
They are donations to education; donations which any govern-
ment must be disposed rather to encourage than to discounte-
nance. It requires no very critical examination of the human
mind, to enable us to determine, that one great inducement to
these gifts is the conviction felt by the giver, that the disposition
he makes of them is immutable. It is probable, that no man ever
was, and that no man ever will be, the founder of a college, be-
lieving at the time that an act of incorporation constitutes no
security for the institution ; believing, that it is immediately to
be deemed a public institution, whose funds are to be governed
and applied, not by the will of the donor, but by the will of the
legislature. All such gifts are made in the pleasing, perhaps
delusive hope, that the charity will flow forever in the channel
which the givers have marked out for it. If every man finds in
his own bosom strong evidence of the universality of this senti-
ment, there can be but little reason to imagine that the framers
DARTMOUTH COLLEGE v. WOODWARD. 169
of our constitution were strangers to it, and that, feeling the
necessity and policy of giving permanence and security to con-
tracts, of withdrawing them from the influence of legislative bod-
ies, whose fluctuating policy and repeated interferences pro-
duced the most perplexing and injurious embarrassments, they
still deemed it necessary to leave these contracts subject to those
interferences. The motives for such an exception must be very
powerful, to justify the construction which makes it. . . .
The opinion of the court, after mature deliberation, is, that this
is a contract, the obligation of which cannot be impaired, without
violating the constitution of the United States. This opinion
appears to us to be equally supported by reason, and by the for-
mer decisions of this court.
2. We next proceed to the inquiry, whether its obligation has
been impaired by those acts of the legislature of New Hamp-
shire, to which the special verdict refers. . . .
On the effect of this law, two opinions cannot be entertained.
Between acting directly, and acting through the agency of trus-
tees and overseers, no essential difference is perceived. The whole
power of governing the college is transferred from trustees, ap-
pointed according to the will of the founder, expressed in the
charter, to the executive of New Hampshire. The management
and application of the funds of this eleemosynary institution,
which are placed by the donors in the hands of trustees named
in the charter, and empowered to perpetuate themselves, are
placed by this act under the control of the government of the
State. The will of the State is substituted for the will of the
donors, in every essential operation of the college. This is not an
immaterial change. The founders of the college contracted, not
merely for the perpetual application of the funds which they
gave, to the objects for which those funds were given ; they con-
tracted also, to secure that application by the constitution of the
corporation. They contracted for a system, which should, as far
as human foresight can provide, retain forever the government
of the literary institution they had formed, in the hands of per-
sons approved by themselves. This system is totally changed.
The charter of 1769 exists no longer. It is reorganized; and re-
organized in such a manner, as to convert a literary institution,
molded according to the will of its founders, and placed under
the control of private literary men, into a machine entirely sub-
servient to the will of government. This may be for the advan-
tage of this college in particular, and may be for the advantage
of literature in general; but it is not according to the will of
170 CASES ON CONSTITUTIONAL LAW.
the donors, and is subversive of that contract, on the faith of
which their property was given. . . .
It results from this opinion, that the acts of the legislature of
New Hampshire, which are stated in the special verdict found in
this cause, are repugnant to the constitution of the United States ;
and that the judgment on this special verdict ought to have been
for the plaintiffs. The judgment of the state court must, there-
fore, be reversed.
[Mr. Justice Washington and Mk. Justice Stoey delivered
concurring opinions. Me. Justice Johnson concurred for the
reasons stated by the Chief Justice. Me. Justice Livingston
concurred for the reasons stated by the Chief Justice and by
Justices Washington and Story. Me. Justice Duvall dissented.]
Note. — No other decision of the Supreme Court, except possibly that
in the Dred Scott case, has provoked so much criticism as has that in the
Dartmouth College case, and yet Chief Justice "Waite said of it, ' ' The doc-
trines of Trustees of Dartmouth CoUege v. Woodward announced by this
court more than sixty years ago have become so imbedded in the jurispru-
dence of the United States as to make them to all intents and purposes a
part of the Constitution itself." Stone v. Mississippi (1879), 101 U. S.
814, 816. The point of view of some of the opponents of the decision is
set forth in these words of a distinguished jurist:
It is under the protection of the decision in the Dartmouth
College Case that the most enormous and threatening powers in
our country have been created; some of the great and wealthy cor-
porations actually having greater influence in the country at large,
and upon the legislation of the country, than the States to which
they owe their corporate existence. Every privilege granted or
right conferred — no matter by what means or on what pretence —
being made inviolable by the Constitution, the government is fre-
quently found stripped of its authority in very important partic-
ulars, by unwise, careless, or corrupt legislation; and a clause of
the Federal Constitution, whose purpose was to preclude the re-
pudiation of debts and just contracts, protects and perpetuates the
evil.
Cooley, Constitutional Limitations (6 ed.), 335n.
The evils of which Chief Justice Cooley speaks have been greatly miti-
gated by the almost universal practice of reserving in every charter granted
the right of amendment and repeal, and also by the court's insistence upon
clear proof of the actual existence of a contract with the State. Miller,
Lectures on the Constitution, 393. Many charters have also been limited
by the police power held to be inherent in the States and which they can
not grant away. Northwestern Fertilizer Co. v. Hyde Park (1878), 97
U. S. 659. The doctrine of the principal case does not apply to the charters
of public corporations, Laramie County v. Albany County (1875), 92
U. S. 307.
CHARLES MVER BRIDGE v. WARREN BRIDGE. 171
The Dartmouth College ease has given rise to a voluminous literature.
Among the most important discusions of it are Shirley, The Dartmouth
College Causes ("valuable but ill-digested," J. B. Thayer); Chief Justice
Doe, ' ' A New View of the Dartmouth College Case, ' ' Harvard Law Review,
VI, 161, 213; Lodge, Daniel Webster (a good history of the ease by an
eminent statesman) ; Wheeler, Daniel Webster, Expounder of the Consti-
tution (criticism by a distinguished lawyer).
As to what contracts are protected by the Federal Constitution against
impairment by the States see Church v. Kelsey (1887), 121 TJ. S. 282 (a
State constitution) ; Fletcher v. Peck (1810), 6 Cranch, 87 (a convey-
ance) ; State of New Jersey v. Wilson (1812), 7 Cranch, 164; Providence
Bank v. Billings (1830), 4 Peters, 514; Piqua Branch of State Bank of
Ohio V. Knoop (1853), 16 Howard, 369 (exemption from taxation); Green
v. Biddle (1823), 8 Wheaton, 1 (contract between States for the benefit of
individuals) ; Maynard v. Hill (1888), 125 U. S. 190 (contract of mar-
riage) ; The Binghampton Bridge (1865), 3 Wallace, 51; New Orleans
Water Co. v. Elvers (1885), 115 U. S. 674; Vicksburg v. Vicksburg Water
Co. (1906), 202 U. S. 453 (exclusive franchises) ; Los Angeles v. CHjy Water
Co. (1900), 177 TT. S. 558 (contracts as to rates of public service com-
panies) ; Louisiana v. New Orleans (1883), 109 U. S. 285 (judgment for
damages collectible in an action of contract) ; Illinois Central Ey. v. Illi-
nois (1892), 146 IT. S. 387 (how far governmental powers can be made the
subject of irrepealable contracts).
Section 2. The Construction of Grants prom a State.
THE PROPRIETORS OF THE CHARLES RIVER BRIDGE
V. THE PROPRIETORS OF THE WARREN
BRIDGE ET AL.
Supreme Cotirt op the United States. 1837.
11 Peters, 420; 9 Lawyers' Ed. 773.
Error to the supreme judicial court of the commonwealth of
Massachusetts. . . .
[In 1650 the legislature of Massachusetts granted to the Presi-
dent of Harvard College "the liberty and power" to dispose of
the ferry over the Charles River from Charlestown to Boston,
and under this grant Harvard College received the profits of this
ferry until 1785, when the legislature incorporated "The Pro-
prietors of the Charles River Bridge," and authorized the com-
pany to construct a bridge at the place where the ferry then was.
Provision was made for compensating Harvard College for the
impairment of the value of its ferry franchise. In 1828 the legis-
lature incorporated a company by the name of ' ' The Proprietors
of the Warren Bridge," and authorized it to construct another
172 CASES ON CONSTITUTIONAL LAW.
bridge so near to the Charles River bridge that in Charlestown
the termini of two bridges would be only sixteen rods apart and
in Boston about fifty rods apart. The Charles River Bridge Com-
pany then sought to enjoin the construction of the Warren bridge
on the ground that the act for the erection of the Warren bridge
impaired the obligation of the contract between the petitioners
and the Commonwealth of Massachusetts.]
Taney, C. J., delivered the opinion of the court. . . .
The plaintiffs in error insist, mainly, upon two grounds:
1. That by virtue of the grant of 1650, Harvard College was
entitled, in perpetuity, to the right of keeping a ferry between
Charlestown and Boston ; that this right was exclusive ; and that
the legislature had not the power to establish another ferry on
the same line of travel, because it would infringe the rights of
the college ; and that these rights, upon the erection of the bridge
in the place of the ferry, under the charter of 1785, were trans-
ferred to, and became vested in "the proprietors of the Charles
River Bridge;" and that under, and by virtue of this transfer
of the ferry right, the rights of the bridge company were as
exclusive in that line of travel, as the rights of the ferry. 2. That
independently of the ferry right, the acts of the legislature of
Massachusetts of 1785, and 1792, by their construction, nec-
essarily implied that the legislature would not authorize another
bridge, and especially a free one, by the side of this, and placed
in the same line of travel, whereby the franchise granted to the
"Proprietors of the Charles River Bridge" should be rendered of
no value; and the plaintiffs in error contend that the grant of
the ferry to the college, and of the charter to the proprietors of
the bridge, are both contracts on the part of the State ; and thaf
the law authorizing the erection of the Warren Bridge, in 1828,
impairs the obligation of one or both of these contracts. . . .
This brings us to the act of the legislature of Massachusetts,
of 1785, by which the plaintiffs were incorporated by the name
of ' ' The Proprietors of the Charles River Bridge ; ' ' and it is here,
and in the law of 1792, prolonging their charter, that we must
look for the extent and nature of the franchise conferred upon
the plaintiffs.
Much has been said in the argument, of the principles of con-
struction by which this law is to be expounded, and what under-
takings, on the part of the State, may be implied. The court
think there can be no serious difficulty on that head. It is the
CHARLES RIVER BRIDGE v. WARREN BRIDGE. 173
grant of certain franchises by tlie public to a private corporation,
and in a matter where the public interest is concerned. The rule
of construction in such cases is well settled, both in England, and
by the decision of our own tribunals. In 2 Barn. & Adol. 793,
in the case of the proprietors of the Stourbridge Canal v. Whee-
ley and others, the court say, "The canal having been made under
an act of parliament, the rights of the plaintiffs are derived en-
tirely from that act. This, like many other cases, is a bargain
between a company of adventurers and the public, the terms of
which are expressed in the statute ; and the rule of construction,
in all such cases, is now fully established to be this; that any
ambiguity in the terms of the contract must operate against the
adventurers, and in favor of the public, and the plaintiffs can
claim nothing that is not clearly given them by the act." And
the doctrine thus laid down is abundantly sustained by the au-
thorities referred to in this decision. The case itself was as strong
a one as could well be imagined for giving to the canal company,
by implication, a right to the tolls they demanded. Their canal
had been used by the defendants, to a very considerable extent,
in transporting large quantities of coal. The rights of all per-
sons to navigate the canal were expressly secured by the act of
parliament; so that the company could not prevent them from
using it, and the toll demanded was admitted to be reasonable.
Yet, as they only used one of the levels of the canal, and did not
pass through the locks; and the statute, in giving the right to
exact toU, had given it for articles which passed "through any
one or more of the locks," and had said nothing as to toll for
navigating one of the levels ; the court held that the right to de-
mand toll, in the latter case, could not be implied, and that the
company were not entitled to recover it. This was a fair case
for an equitable construction of the act of incorporation, and for
an implied grant; if such a rule of construction could ever be
permitted in a law of that description. For the canal had been
made at the expense of the company ; the defendants had availed
themselves of the fruits of their labors, and used the canal freely
and extensively for their own profit. Still the right to exact toll
could not be implied, because such a privilege was not found in
the charter.
Borrowing, as we have done, our system of jurisprudence from
the English law; and having adopted, in every other case, civil
and criminal, its rules for the construction of statutes; is there
anything in our local situation, or in the nature of our political
institutions, which should lead us to depart from the principle
174 CASES ON CONSTITUTIONAL LAW.
where corporations are concerned? Are we to apply to acts of
incorporation a rule of construction differing from that of the
English law, and, by implication, make the terms of a charter in
one of the States, more unfavorable to the public, than upon an
act of parliament, framed in the same words, would be sanc-
tioned in an English court? Can any good reason be assigned
for excepting this particular class of cases from the operation
of the general principle, and for introducing a new and adverse
rule of construction in favor of corporations, while we adopt and
adhere to the rules of construction known to the English com-
mon law, in every other case, without exception ? We think not ;
and it would present a singular spectacle, if, while the courts in
England are restraining, within the strictest limits, the spirit of
monopoly, and exclusive privileges in nature of monopolies, and
confining corporations to the privileges plainly given to them
in their charter, the courts of this country should be found en-
larging these privileges by implication ; and construing a statute
more unfavorably to the public, and to the rights of the com-
munity, than would be done in a like case in an English court
of justice. . . .
Adopting the rule of construction above stated as the settled
one, we proceed to apply it to the charter of 1785 to the propri-
etors of the Charles Eiver Bridge. This act of incorporation is
in the usual form, and the privileges such as are commonly given
to corporations of that kind. It confers on them the ordinary
faculties of a corporation, for the purpose of building the bridge ;
and establishes certain rates of toll, which the company are
authorized to take. This is the whole grant. There is no exclu-
sive privilege given to them over the waters of Charles River
above or below their bridge. No right to erect another bridge
themselves, nor to prevent other persons from erecting one. No
engagement from the State that another shall not be erected;
and no undertaking not to sanction competition, nor to make im-
provements that may diminish the amount of its income. Upon
all these subjects the charter is silent ; and nothing is said in it
about a line of travel, so much insisted on in the argument, in
which they are to have exclusive privileges. No words are used
from which an intention to grant any of these rights can be
inferred. If the plaintiff is entitled to them, it must be implied,
simply from the nature of the grant, and cannot be inferred from
the words by which the grant is made.
The relative position of the Warren Bridge has already been
described. It does not interrupt the passage over the Charles
CHARLES RIVER BRIDGE v. WARREN BRIDGE. 175
River Bridge, nor make the way to it or from it less convenient.
None of the faculties or franchises granted to that corporation
have been revoked by the legislature; and its right to take the
tolls granted by the charter remains unaltered. In short, all the
franchises and rights of property enumerated in the charter,
and there mentioned to have been granted to it, remain unim-
paired. But its income is destroyed by the Warren Bridge;
which, being free, draws off the passengers and property which
would have gone over it, and renders their franchise of no value.
This is the gist of the complaint. For it is not pretended that
the erection of the Warren Bridge would have done them any
injury, or in any degree affected their right of property, if it had
not diminished the amount of their tolls. In order then to entitle
themselves to relief, it is necessary to show that the legislature
contracted not to do the act of which they complain; and that
they impaired, or, in other words, violated that contract by the
erection of the Warren Bridge.
The inquiry then is. Does the charter contain such a contract
on the part of the State? Is there any such stipulation to be
found in that instrument? It must be admitted on all hands,
that there is none, — no words that even relate to another bridge,'
or to the diminution of their tolls, or to the line of travel. If a
contract on that subject can be gathered from the charter, it must
be by implication, and cannot be found in the words used. Can
such an agreement be implied? The rule of construction before
stated is an answer to the question. In charters of this descrip-
tion, no rights are taken from the public, or given to the cor-
poration, beyond those which the woi'ds of the charter, by their
natural and proper construction, purport to convey. There are
no words which import such a contract as the plaintiffs in error
contend for, and none can be implied ; and the same answer must
be given to them that was given by this court to the Providence
Bank. 4 Pet. 514. The whole community are interested in this
inquiry, and they have a right to require that the power of pro-
moting their comfort and convenience, and of advancing the
public prosperity by providing safe, convenient, and cheap ways
for the transportation of produce and the purposes of travel,
shall not be construed to have been surrendered or diminished
by the State, unless it shall appear by plain words that it was
intended to be done. . . .
Indeed, the practice and usage of almost every State in the
Union, old enough to have commenced the work of internal im-
provement, is opposed to the doctrine contended for on the part
176 ■ CASES ON CONSTITUTIONAL LAW.
of the plaintiffs in error. Turnpike roads have been made in suc-
cession, on the same line of travel ; the later ones interfering ma-
terially with the profits of the first. These corporations have, in
some instances, been utterly ruined by the introduction of newer
and better modes oi transportation and travelling. In some cases,
railroads have rendered the turnpike roads on the same line of
travel so entirely useless, that the franchise of the turnpike cor-
poration is not worth preserving. Yet in none of these eases
have the corporations supposed that their privileges were invaded,
or any contract violated on the part of the State. Amid the mul-
titude of cases which have occurred, and have been daily occur-
ring for the last forty or fifty years, this is the first instance in
which such an implied contract has been contended for, and this
court called upon to infer it from an ordinary act of incorpora-
tion, containing nothing more than the usual stipulations and
provisions to be found in every such law. The absence of any
such controversy, when there must have been so many occasions
to give rise to it, proves that neither States, nor individuals, nor
corporations, ever imagined that such a contract could be implied
from such charters. It shows that the men who voted for these
laws never imagined that they were forming such a contract;
and if we maintain that they have made it, we must create it by
a legal fiction, in opposition to the truth of the fact, and the
obvious intention of the party. "We cannot deal thus with the
rights reserved to the States, and by legal intendments and mere
technical reasoning, take away from them any portion of that
power over their own internal police and improvement, which is
so necessary to their well-being and prosperity.
And what would be the fruits of this doctrine of implied con-
tracts on the part of the States, and of property in a line of
travel by a corporation, if it should now be sanctioned by this
court ? To what results would it lead us ? If it is to be found
in the charter to this bridge, the same process of reasoning must
discover it, in the various acts which have been passed, within
the last forty years, for turnpike companies. And what is to be
the extent of the privileges of exclusion on the different sides of
the road? The counsel who have so ably argued this case have
not attempted to define it by any certain boundaries. How far
must the new improvement be distant from the old one? How
near may you approach without invading its rights in the privi-
leged line ? If this court should establish the principles now con-
tended for, what is to become of the numerous railroads estab-
lished on the same line of travel with turnpike companies; and
CHARLES RIVER BRIDGE v. WARREN BRIDGE. 177
which have rendered the franchises of the turnpike corporations
of no value ? Let it once be understood that such charters carry
■with them these implied contracts, and give this unknown and
undefined property in a line of travelling, and you will soon find
the old turnpike corporations awakening from their sleep and
calling upon this court to put down the improvements which have
taken their place. The millions of property which have been in-
vested in railroads and canals, upon lines of travel which had
been before occupied by turnpike corporations, will be put in
jeopardy. We shall be thrown back to the improvements of the
last century, and obliged to stand still, until the claims of the
old turnpike corporations shall be satisfied, and they shall con-
sent to permit these States to avail themselves of the lights of
modern science, and to partake of the benefit of those improve-
ments which are now adding to the wealth and prosperity, and
the convenience and comfort, of every other part of the civilized
world. Nor is this all. This court will find itself compelled to
fix, by some arbitrary rule, the width of this new kind of prop-
erty in a line of travel ; for if such a right of property exists, we
have no lights to guide us in marking out its extent, unless, in-
deed, we resort to the old feudal grants, and to the exclusive
rights of ferries, by prescription, between towns; and are pre-
pared to decide that when a turnpike road from one town to an-
other had been made, no railroad or canal, between these two
points, could afterwards be established. This court are not pre-
pared to sanction principles which must lead to such results.
The judgment of the supreine judicial court of the common-
wealth of Massachusetts, dismissing the plaintiffs' hill, must
therefore, be affirmed, with costs.
[Mr. Justice McLean delivered an opinion in which he argued
that the case should be dismissed for want of jurisdiction. Me.
Justice Stoey delivered a dissenting opinion, in which Mr. Jus-
tice Thompson concurred.]
Note. — For an excellent history of the principal case, with criticism
of the decision by Webster, Kent and other eminent lawyers of the day,
see Warren, History of the Harvard Law School, I, ch. 24.
For examples of the construction of public grants, see Skaneateles Water
Works Co. V. Skaneateles (1902), 184 U. S. 354; Jopliu v. Southwest Mis-
souri Light Co. (1903), 191 U. S. 150 (city having granted a franchise to
a private company constructed water and light works of its own) ; Eail-
road Commission Cases (1886), 116 TT. S. 307; Owensboro v. Owensboro
Waterworks Co. (1903), 191 U. S. 358; Southern Pacific Co. v. Campbell
E. c. L.— 12
178 CASES ON CONSTITUTIONAL LAW.
(1913), 230 XT. S. 537 (State or municipality fixed the charges of public
service companies authorized to determine their charges) ; Jetton v. Uni-
versity of the South (1908), 208 U. S. 489 (taxation of leasehold interests
in lands exempt from taxation) ; Picard v. East Tennessee, Va. & Ga. Ey.
(1889), 130 U. S. 637; Norfolk & Western Ey. v. Pendleton (1895), 156
TJ. 8. 667; Eochester EaUway Co. v. Eochester (1907), 205 IT. S. 236
(property exempt from taxation vrhen' transferred to a new owner); but
compare Choate v. Trapp (1912), 224 U. S. 665 (liberal construction of
tax exemptions of Indians).
Section 3. What is an Impairment of the Obli-
gation OP a Conteact.
STUEGES V. CROWNINSHIELD.
Supreme Coukt op the United States. 1819.-
4 Wheaton, 122; 4 Lawyers' Ed. 529.
This was an action of assumpsit, brought in the circuit court
of Massachusetts, against the defendant, as the maker of two
promissory notes, both dated at New York, on the 22d of March,
1811, for the sum of $771.86 each, and payable to the plaintiff,
one on the 1st of August, and the other on the 15th of August,
1811. The defendant pleaded his discharge under "An act for
the benefit of insolvent debtors and their creditors," passed' by
the legislature of New York, the 3d day of April, 1811. After
stating the provisions of the said act, the defendant's plea averred
his compliance with them, and that he was discharged, and a cer-
tificate given to him the fifteenth day of February, 1812. To
this plea there was a general demurrer, and joinder. At the Octo-
ber term of the circuit court, 1817, the cause came on to be argued
and heard on the said demurrer, and the following questions
arose, to wit : — ...
3. Whether the act aforesaid is an act or law impairing the
obligation of contracts, within the meaning of the constitution
of the United States? . . .
Marshall, C. J., delivered the opinion of the court. . . .
We proceed to the great question on which the cause must de-
pend. Does the law of New York, which is pleaded in this case,
impair the obligation of contracts, within the meaning of the
constitution of the United States? This act liberates the person
of the debtor, and discharges him from all liability for any debt
STURGES V. CROWNINSHIELD. 179
previously contracted, on his surrendering his property in the*
manner it prescribes. In discussing the question whether a State
is prohibited from passing such a law as this, our first inquiry is
into the meaning of words in common use. What is the obliga-
tion of a contract ? and what will impair it ?
It would seem difficult to substitute words which are more in-
telligible, or less liable to misconstruction, than those which are
to be explained. A contract is an agreement in which a party
undertakes to do, or not to do, a particular thing. The law binds
him to perform his undertaking, and this is, of course, the obliga-
tion of his contract. In the case at bar, the defendant has given
his promissory note to pay the plaintiff a sum of money on or
before a certain day. The contract binds him to pay that sum on
that day; and this is its obligation. Any law which releases a
part of this obligation, must in the literal sense of the word, im-
pair it. Much more must a law impair it which makes it totally
invalid, and entirely discharges it.
The words of the constitution, then, are express, and incapable
of being misunderstood. They admit of no variety of construc-
tion, and are acknowledged to apply to that species of contract,
an engagement between man and man, for the payment of money,
which has been entered into by these parties. Yet the opinion
that this law is not within the prohibition of the constitution,
has been entertained by those who are entitled to great respect,
and has been supported by arguments which deserve to be seri-
ously considered.
It has been contended, that as a contract can only bind a man
to pay to the full extent of his property, it is an implied condi-
tion that he may be discharged on surrendering the whole of it.
But it is not true that the parties have in view only the prop-
erty in possession when the contract is formed, or that its obliga-
tion does not extend to future acquisitions. Industry, talents,
and integrity, constitute a fund which is as confidently trusted as
property itself. Future acquisitions are, therefore, liable for
contracts ; and to release them from this liability impairs their
obligation.
It has been argued, that the States are not prohibited from
passing bankrupt laws, and that the essential principle of such
laws is to discharge the bankrupt from all past obligations ; that
the States have been in the constant practice of passing insolvent
laws, such as that of New York, and if the framers of the con-
stitution had intended to deprive them of this power, insolvent
laws would have been mentioned in the prohibition ; that the pre-
180 CASES ON CONSTITUTIONAL LAW.
vailing evil of the times, which produced this clause in the con-
stitution, was the practice of emitting paper money, of making
property which was useless to the creditor a discharge of his debt,
and of changing the time of payment by authorizing distant in-
stallments. Laws of this description, not insolvent laws, consti-
tuted, it is said, the mischief to be remedied; and laws of this
description, not insolvent laws, are within the true spirit of the
prohibition.
The constitution does not grant to the States the power of pass-
ing bankrupt laws, or any other power ; but finds them in posses-
sion of it, and may either prohibit its future exercise entirely, or
restrain it so far as national policy may require. It has so far
restrained it as to prohibit the passage of any law impairing the
obligation of contracts. Although, then, the States may, until
that power shall be exercised by Congress, pass laws concerning
bankrupts, yet they cannot constitutionally introduce into such
laws a clause which discharges the obligations the bankrupt has
entered into. It is not admitted that without this principle, an
act cannot be a bankrupt law; and if it were, that admission
would not change the constitution, nor exempt such acts from its
prohibitions.
The argument drawn from the omission in the constitution to
prohibit the States from passing insolvent laws, admits of several
satisfactory answers. It was not necessary, nor would it have
been safe, had it even been the intention of the framers of the
constitution to prohibit the passage of all insolvent laws, to enu-
merate particular subjects to which the principle they intended
to establish should apply. The principle was the inviolability of
contracts. This principle was to be protected in whatsoever form
it might be assailed. To what purpose enumerate the particular
modes of violation which should be forbidden, when it was in-
tended to forbid all ? Had an enumeration of all the laws which
might violate contracts been attempted, the provision must have
been less complete, and involved in more perplexity than it now
is. The plain and simple declaration, that no State shall pass
any law impairing the obligation of contracts, includes insolvent
laws and all other laws, so far as they infringe the principle the
convention intended to hold sacred, and no further.
But a still more satisfactory answer to this argument is, that
the convention did not intend to prohibit the passage of all in-
solvent laws. To punish honest insolvency by imprisonment for
life, and to make this a constitutional principle, would be an
excess of inhumanity which will not readily be imputed to the
STUEGES V. CEOWNINSHIELD. 181
illustrious patriots who framed our constitution, nor to the peo-
ple who adopted it. The distinction between the obligation of a
contract, and the remedy given by the legislature to enforce that
obligation, has been taken at the bar, and exists in the nature of
things. Without impairing the obligation of the contract, the
remedy may certainly be modified as the wisdom of the nation
shall direct. Confinement of the debtor may be a punishment for
not performing his contract, or may be allowed as a means of
inducing him to perform it. But the State may refuse to inflict
this punishment, or may withhold this means, and leave the con-
tract in full force. Imprisonment is no part of the contract,
and simply to release the prisoner does not impair its obliga-
tion. . . .
The argument which has been pressed most earnestly at the
bar, is, that, although all legislative acts which discharge the obli-
gation of a contract without performance, are within the very
words of the constitution, yet an insolvent act, containing this
principle, is not within its spirit, because such acts have been
passed by colonial and state legislatures from the first settle-
ment of the country, and because we know from the history of
the times, that the mind of the convention was dft-ected to other
laws, which were fraudulent in their character, which enabled the
debtor to escape from his obligation, and yet hold his property ;
not to this, which is beneficial in its operation. . . .
The fact is too broadly stated. The insolvent laws of many,
indeed, of by far the greater number of the States, do not contain
this principle. They discharge the person of the debtor, but
leave his obligation to pay in full force. To this the constitution
is not opposed.
But, were it even true that this principle had been introduced
generally into those laws, it would not justify our varying the
construction of the section. Every State in Union, both while
a colony and after becoming independent, had been in the prac-
tice of issuing paper money ; yet this practice is, in terms, pro-
hibited. If the long exercise of the power to emit bills of credit
did not restrain the convention from prohibiting its future exer-
cise, neither can it be said that the long exercise of the power to
impair the obligation of contracts, should prevent a similar pro-
hibition. It is not admitted that the prohibition is more express
in the one case than in the other. It does not, indeed, extend to
insolvent laws by name, because it is not a law by name, but a
principle which is to be forbidden ; and this principle is described
in as appropriate terms as our language affords.
182 CASES ON CONSTITUTIONAL LAW.
Neither, as we conceive, will any admissible rule of construc-
tion justify us in limiting the prohibition under consideration,
to the particular laws which have been described at the bar, and
which furnished such cause for general alarm. What were those
laws?
We are told they were such as grew out of the general distress
following the war in which our independence was established. To
relieve this distress paper money was issued; worthless lands,
and other property of no use to the creditor, were made a tender
in payment of debts; and the time of payment, stipulated in
the contract, was extended by law. These were the peculiar evils
of the day. So much mischief was done, and so much more was
apprehended, that general distrust prevailed, and all confidence
between man and man was destroyed. To laws of this description
therefore it is said, the prohibition to pass laws impairing the
obligation of contracts ought to be confined.
Let this argument be tried by the words of the section under
consideration. Was this general prohibition intended to prevent
paper money? We are not allowed to say so, because it is ex-
pressly provided, that no State shall "emit bills of credit;"
neither could these words be intended to restrain the States from
enabling debtors to discharge their debts by the tender of prop-
erty of no real value to the creditor, because for that subject also
particular provision is made. Nothing but gold and silver coin
can be made a tender in payment of debts. . . .
The fair, and we think, the necessary construction of the sen-
tence ["No State shall pass any law impairing the obligation of
contracts"] requires, that we should give these words their full
and obvious meaning. A general dissatisfaction with that lax
system of legislation which followed the war of our Revolution,
undoubtedly directed the mind of the convention to this subject.
It is probable that laws such as those which have been stated in
argument, produced the loudest complaints, were most immedi-
ately felt. The attention of the convention, therefore, was par-
ticularly directed to paper money, and to acts which enabled
the debtor to discharge his debt otherwise than was stipulated
in the contract. Had nothing more been intended, nothing more
would have been expressed. But, in the opinion of the conven-
tion, much more remained to be done. The same mischief might
be effected by other means. To restore public confidence com-
pletely, it was necessary not only to prohibit the use of particular
means by which it might be effected, but to prohibit the use of
any means by which the same mischief might be produced. The
STURGES V. CROWNINSHIELD. 183
convention appears to have intended to establish a great princi-
ple, that contracts should be inviolable. The constitution, there-
fore, declares, that no State shall pass "any law impairing the
obligation of contracts."
If, as we think, it must be admitted that this intention might
actuate the convention; that it is not only consistent with, but
is apparently manifested by, all that part of the section which
respects this subject ; that the words used are well adapted to the
expression of it ; that violence would be done to their plain mean-
ing by understanding them in a more limited sense ; those rules
of construction, which have been consecrated by the wisdom of
ages, compel us to say, that these words prohibit the passage of
any law discharging a contract without performance.
By way of analogy, the statutes of limitations, and against
usury, have been referred to in argument ; and it has been sup-
posed that the construction of the constitution, which this opin-
ion maintains, would apply to them also, and must therefore be
too extensive to be correct.
We do not think so. Statutes of limitations relate to the reme-
dies which are furnished in the courts. They rather establish,
that certain circumstances shall amount to evidence that a con-
tract has been performed, than dispense with its performance.
If, in a State where six years may be pleaded in bar to an action
of assumpsit, a law should pass declaring that contracts already
in existence, not barred by the statute, should be construed to be
within it, there could be little doubt of its unconstitutionality.
So with respect to the laws against usury. If the law be, that
no person shall take more than six per centum per annum for the
use of money, and that, if more be reserved, the contract shall
be void, a contract made thereafter reserving seven per cent.,
would have no obligation in its commencement; but if a law
should declare that contracts already entered into, and reserv-
ing the legal interest, should be usurious and void, either in the
whole or in part, it would impair the obligation of the contract,
and would be clearly unconstitutional.
This opinion is confined to the case actually under considera-
tion. It is confined to a case in which a creditor sues in a court,
the proceedings of which the legislature, whose act is pleaded,
had not a right to control, and to a case where the creditor had
not proceeded to execution against the body of his debtor, within
the State whose law attempts to absolve a confined insolvent
debtor from his obligation. When such a case arises, it will be
considered.
184 CASES ON CONSTITUTIONAL LAW.
It is the opinion of the court, that the act of the State of New
York, which is pleaded by the defendant in this cause, so far as
it attempts to discharge this defendant from the debt in the dec-
laration mentioned, is contrary to the constitution of the United
States, and that the plea is no bar to the action. . . .
Note. — As to the operation of the bankruptcy laws of the States, see
Ogden V. Saunders (1827), 12 Wheaton, 213; Cook v. Moffatt, et al. (1847),
5 Howard, 295, and Baldwin v. Hale (1863), 1 Wallace, 223.
"By the obligation of a contract is meant the means which, at the time
of its creation, the law affords for its enforcement." Field, J., in Nelson
V. St. Martin's Parish (1884), 111 U. S. 716. Any form of State law
which impairs the obligation of a contract is invalid. Murray v. Charleston
(1877), 96 U. S. 432; New Orleans Waterworks Co. v. Louisiana Sugar
Eefining Co. (1888), 125 U. S. 18 (a municipal ordinance); Grand Trunk
Western Ey. v. Eailroad' Commission of Indiana (1911), 221 U. S. 400
(administrative order of a State commission) ; Eoss v. Oregon (1913), 227
U. S. 150 (a State constitution). The restraint operates only upon a State's
legislative power, not upon the decisions of its courts. Calder v. Bull (1798),
3 Dallas, 386; Fletcher v. Peck (1810), 6 Cranch, 87; Commercial Bank v.
Buckingham's Executors (1847), 5 Howard, 317; Central Land Company
V. Laidley (1895), 159 U. S. 103; Moore-Mansfield Construction Co. v.
Electrical Installation Co. (1914), 234 U. S. 619; but see Gelpcke v. Dubuque
(1863), 1 Wallace, 175; Township of Pine Grove v. Talcott (1874), 19
Wallace, 666; Douglas v. County of Pike (1880), 101 U. S. 677; Louisiana
V. Pilsbury (1881), 105 TJ. S. 278. When a State gives effect to later legis-
lation on the ground that the earlier legislation did not create a contract,
it is for the Federal Supreme Court to determine whether or not a contract
existed. Eussell v. Sebastian (1914), 233 U. S. 195; Louisiana Eailway &
Navigation Co. v. New Orleans (1914), 235 TJ. S. 164. As to what consti-
tutes an impairment of the obligation of a contract, see Livingston v. Moore
(1833), 7 Peters, 469; Walker v. Whitehead (1872), 16 Wallace, 314; Ten-
nessee V. Sneed (1877), 96 TJ. S. 69; New Orleans &c. Ey. v. New Orleans
(1895), 157 TJ. S. 219 (changes in remedy); Gunn v. Barry (1873), 15
Wallace, 610; Edwards v. Kearzey (1878), 96 TJ. S. 595 (material extension
of exemption laws); Bronson v. Kinzie (1843), 1 Howard, 311; Barvitz v.
Beverley (1896), 163 TJ. S. 118 (statutes altering mortgagor's right of
redemption); Penniman's Case (1881), 103 TJ. S. 714 (abolition of im-
prisonment for debt) ; Wheeler v. Jackson (1890), 137 TT. S. 245 (alteration
in statute of limitations).
CHAPTER V.
MONEY.
Section 1. Biu^s op Credit..
No state shall . . . emit bills of credit.
Constitution of the United States, Art. I, sec. 9.
CRAIG ET Ah. V. THE STATE OP MISSOURI.
Supreme Court or the Ukited States. 1830.
4 Peters, 410; 7 Lawyers' Ed. 903.
[Writ of error to the Supreme Court of Missouri. The legis-
lature of Missouri in 1821 passed an act entitled "An act for
the establishment of loan-offices." It provided for the issue by
the State of certificates ranging in value from fifty cents to ten
dollars in the following form : ' ' This certificate shall be receiv-
able at the treasury, or any of the loan-offices of the State of
Missouri, in the discharge of taxes or debts due to the State, for
the sum of $ , with interest for the same, at the rate of two
per centum per annum from this date, the day of ,
182 — . ' ' Such certificates were made receivable for all taxes or
other debts due to the State, or to any county or town therein,
and all officers in the State, both civil and military, were required
to receive them in payment of salaries. Provision was also made
for the loan of the certificates. The present action was a suit
on a promissory note given for such a loan. The defendants
entered a plea of non-assumpsit on the ground that the considera-
tion for which the note was given was invalid.]
Marshall, C. J., delivered the opinion of the court. . . .
This brings us to the great question in the cause : Is the act of
the legislature of Missouri- repugnant to the constitution of the
United States?
The counsel for the plaintiffs in error maintain that it is re-
pugnant to the constitution, because its object is the emission of
bills of credit, contrary to the express prohibition contained in
the tenth section of the first article. . . .
The clause in the constitution which this act is supposed to
185
186 CASES ON CONSTITUTIONAL LAW.
violate is in these words: "No State shall" "emit bills of
credit."
What is a bill of credit? What did the constitution mean to
forbid?
In its enlarged, and perhaps its literal sense, the term ' ' bill of
credit" may comprehend any instrument by which a State en-
gages to pay money at a future day ; thus including a certificate
given for money borrowed. But the language of the constitution
itself, and the mischief to be prevented, which we know from the
history of our country, equally limits the interpretation of the
terms. The word "emit" is never employed in describing those
contracts by which a State binds itself to pay money at a future
day for services actually received, or for money borrowed for
present use ; nor are instruments executed for such purposes, in
common language, denominated "bills of credit." To "emit
bills of credit," conveys to the mind the idea of issuing paper
intended to circulate through the community for its ordinary
purposes, as money, which paper is redeemable at a future day.
This is the sense in which the terms have been always under-
stood.
At a very early period of our colonial history, the attempt to
supply 'the want of the precious metals by a paper medium was
made to a considerable extent ; and the bills emitted for this pur-
pose have been frequently denominated bills of credit. During
the war of our Revolution, we were driven to this expedient ; and
necessity compelled us to use it to a most fearful extent. The
term has acquired an appropriate meaning; and "bills of credit"
signify a paper medium, intended to circulate between individ-
uals, and between government and individuals, for the ordinary
purposes of society. Such a medium has been always liable to
considerable fluctuation. Its value is continually changing ; and
these changes, often great and sudden, expose individuals to
immense loss, are the sources of ruinous speculations, and destroy
all confidence between man and man. To cut up this mischief by
the roots, a mischief which was felt through the United States,
and which deeply affected the interest and prosperity of all, the
people declared in their constitution, that no State should emit
bills of credit. If the prohibition means anything, if the words
are not empty sounds, it must comprehend the emission of any
paper medium, by a State government, for the purpose of com-
mon circulation.
What is the character of the certificates issued by authority of
the act under consideration? What office are they to perform?
CRAIG V. STATE OF MISSOURI. 187
Certificates signed by the auditor aiid treasurer of the State, are
to be issued by those officers to the amount of two hundred thou-
sand dollars, of denominations not exceeding ten dollars, nor less
than fifty cents. The paper purports on its face to be receivable
at the treasury, or at any loan-office of the State of Missouri, in
discharge of taxes or debts due to the State.
The law makes them receivable in discharge of all taxes, or
debts due to the State, or any county or town therein ; Eind of all
salaries and fees of office, to all officers civil and military within
the State ; and for salt sold by the lessees of the public salt works.
It also pledges the faith and funds of the State for their re-
demption.
It seems impossible to doubt the intention of the legislature in
passing this act, or to mistake the character of these certificates,
or the office they were to perform. The denominations of the
bills, from ten dollars to fifty cents, fitted them for the purpose
of ordinary circulation ; and their reception in payment of taxes,
and debts to the government and to corporations, and of salaries
and fees, would give them currency. They were to be put into
circulation ; that is, emitted by the government. In addition to
all these evidences of an intention to make these certificates the
ordinary circulating medium of the country, the law speaks of
them in this character; and directs the auditor and treasurer to
withdraw annually one-tenth of them from circulation. Had
they been termed "bills of credit," instead of "certificates,"
nothing would have been wanting to bring them within the pro-
hibitory words of the constitution.
And can this make any real difference ? Is the proposition to
be maintained that the constitution meant to prohibit names and
not things ? That a very important act, big with great and ruin-
ous mischief, which is expressly forbidden by words most appro-
priate for its description, may be performed by the substitution
of a name ? That the constitution, in one of its most important
provisions, may be openly evaded by giving a new name to an old
thing? "We cannot think so. We think the certificates emitted
under the authority of this act are as entirely bills of credit as
if they had been so denominated in the act itself.
But it is contended that though these certificates should be
deemed bills of credit, according to the common acceptation of
the term, they are not so in the sense of the constitution, because
they are not made a legal tender.
The constitution itself furnishes no countenance to this dis-
tinction. The prohibition is general. It extends to all bills of
188 CASES ON CONSTITUTIONAL LAW.
credit, not to bills of a particular description. That tribunal
must be bold, indeed, which, without the aid of other explanatory
words, could venture on this construction. It is the less admis-
sible in this case, because the same clause of the constitution con-
tains a substantive prohibition to the enactment of tender laws.
The constitution, therefore, considers the emission of bills of
credit, and the enactment of tender laws, as distinct operations,
independent of each other, which may be separately performed.
Both are forbidden. To sustain the one, because it is not also the
other; to say that bills of credit may be emitted, if they be not
made a tender in payment of debts, — is, in effect, to expunge that
distinct independent prohibition, and to read the clause as if it
had been entirely omitted. "We are not at liberty to do this.
The history of paper money has been referred to, for the pur-
pose of showing that its great mischief consists in being made a
tender; and that therefore the general words of the constitution
may be restrained to a particular intent.
"Was it even true, that the evils of paper money resulted solely
from the quality of its being made a tender, this court would
not feel itself authorized to disregard the plain meaning of
words, in search of a conjectural intent to which we are not con-
ducted by the language of any part of the instrument. But we
do not think that the history of our country proves either that
being made a tender in payment of debts is an essential quality
of bills of credit, or the only mischief resulting from them. It
may, indeed, be the most pernicious ; but that will not authorize
a court to convert a general into a particular prohibition.
"We learn from Hutchinson's History of Massachusetts, vol. i.,
p. 402, that bills of credit were emitted for the first time in
that colony in 1690. An army returning unexpectedly from an
expedition against Canada, which had proved as disastrous as
the plan was magnificent, found the government totally unpre-
pared to meet their claims. Bills of credit were resorted to, for
relief from this embarrassment. They do not appear to have
been made a tender ; but they were not on that account the less
bills of credit, nor were they absolutely harmless. The emis-
sion, however, not being considerable, and the bills being soon
redeemed, the experiment would have been productive of not
much mischief, had it not been followed by repeated emissions
to a much larger amount. The subsequent history of Massa-
chusetts abounds with proofs of the evils with which paper
money is fraught, whether it be or be not a legal tender.
Paper money was also issued in other colonies, both in the
CRAIG V. STATE OF MISSOURI. 189
North and South ; and whether made a tender or not, was pro-
ductive of evils in proportion to the quantity emitted. In the
war which commenced in America in 1755, Virginia issued pa-
per money at several successive sessions, under the appellation
of treasury notes. This was made a tender. Emissions were
afterwards made in 1769, in 1771, and in 1773. These were not
made a tender; but they circulated together; were equally bills
of credit; and were productive of the same effects. In 1775, a
considerable emission was made for the purposes of the war. The
bills were declared to be current but were not made a tender.
In 1776, an additional emission was made, and the bills were
declared to be a tender. The bills of 1775 and 1776 circulated
together; were equally bills of credit; and were productive of
the same consequences.
Congress emitted bills of credit to a large amount; and did
not, perhaps could not, make them a legal tender. This power
resided in the States. In May, 1777, the legislature of Vir-
ginia passed an act for the first time making the bills of credit
issued under the authority of congress a tender so far as to
extinguish interest. It was not until March, 1781, that Virginia
passed an act making all the bills of credit which had been
emitted by congress, and all which had been emitted by the
State, a legal tender in payment of debts. Yet they were in
every sense of the word bills of credit, previous to that time;
and were productive of all the consequences of paper money. "We
cannot, then, assent to the proposition, that the history of our
country furnishes any just argument in favor of that restricted
construction of the constitution, for which the counsel for the
defendant in error contends.
The certificates for which this note was given, being in truth
"bills of credit" in the sense of the constitution, we are brought
to the inquiry: — Is the note valid of which they form the con-
sideration ?
It has been long settled, that a promise made in consideration
of an act which is forbidden by law is void. It will not be ques-
tioned that an act forbidden by the constitution of the United
States, which is the supreme law, is against law. Now the con-
stitution forbids a State to "emit bills of credit." The loan
of these certificates is the very act which is forbidden. It is not
the making of them while they lie in the loan-ofSces, but the
issuing of them, the putting them into circulation, which is the
act of emission, the act that is forbidden by the constitution.
The consideration of this note is the emission of bills of credit
190 CASES ON CONSTITUTIONAL LAW.
by the State. The very act which constitutes the consideration,
is the act of emitting bills of credit, in the mode prescribed by
the law of Missouri; which act is prohibited by the constitution
of the United States. ...
The judgment of the supreme court of the State of Missouri for
the first judicial district is reversed, and the cause remanded,
with directions to enter judgment for the defendants.
[Mr. Justice Johnson, Mb. Justice Thompson and Me. Jus-
tice M'Lean delivered dissenting opinions.]
JOHN BRISCOE AND OTHERS v. THE PRESIDENT AND
DIRECTORS OF THE BANK OF THE COMMON-
WEALTH OF KENTUCKY.
Supreme Coukt of the United States. 1837.
11 Peters, 257; 9 Lawyers' Ed. 709.
[Writ of error to the Court of Appeals of Kentucky. The
legislature of Kentucky enacted a law providing for the incor-
poration of the Bank of Kentucky. The president and board of
directors were elected by joint ballot of the two houses of the
legislature and all the capital stock of the bank was the exclu-
sive property of the State of Kentucky. The bank was author-
ized to issue notes which were made payable to the bearer in
gold and silver on demand, and were receivable in payment of
taxes and other debts due to the State. This action was brought
on a promissory note given to the bank by John Briscoe and
others, who set up the plea that the bank bills which were the
consideration for which their note was given were invalid.]
M'Lean, J., delivered the opinion of the court. . . .
The federal government is one of delegated powers. All
powers not delegated to it, or inhibited to the States, are re-
served to the States, or to the people. A State cannot emit bills
of credit; or, in other words, it cannot issue that description of
paper to answer the purposes of money, which was denominated,
before the adoption of the constitution, bills of credit. But a
State may grant , acts of incorporation for the attainment of
those objects which are essential to the interests of society. This
power is incident to sovereignty; and there is no limitation in
BRISCOE V. BANK OP KENTUCKY. 191
the federal constitution on its exercise by the States, in respect
to the incorporation of banks.
At the time the constitution was adopted, the Bank of North
America, and the Massachusetts Bank, and some others, were in
operation. It cannot, therefore, be supposed that the notes of
these banks were intended to be inhibited by the constitution, or
that they were considered as bills of credit within the meaning
of that instrument. In fact, in many of their most distinguish-
ing characteristics, they were essentially different from bills
of credit, in any of the various forms in which they were issued.
If, then, the powers not delegated to the federal government,
nor denied to the States, are retained by the States or the peo-
ple, and by a fair construction of the terms bills of credit, as
used in the constitution, they do not include ordinary bank
notes, does it not follow that the power to incorporate banks to
issue these notes may be exercised by a State ? A uniform course
of action, involving the right to the exercise of an important
power by the state government for half a century, and this
almost without question, is no unsatisfactory evidence that the
power is rightfully exercised. But this inquiry, though em-
braced in the printed argument, does not belong to the case, and
is abandoned at the bar.
A State cannot do that which the federal constitution declares
it shall not do. It cannot coin money. Here is an act inhibited
in terms so precise that they cannot be mistaken. They are sus-
ceptible of but one construction. And it is certain that a State
cannot incorporate any number of individuals, and authorize
them to coin money. Such an act would be as much a violation
of the constitution as if the money were coined by an officer of
the State, under its authority. The act being prohibited cannot
be done by a State, either directly or indirectly.
And the same rule applies as to the emission of bills of credit
by a State. The terms used here are less specific than those
which relate to coinage. Whilst no one can mistake the latter,
there are great differences of opinion as to the construction of
the former. If the terms in each case were equally definite, and
were susceptible of but one construction, there could be no more
difficulty in applying the rule in the one case than in the other.
The weight of the argument is admitted, that a State cannot,
by any device that may be adopted, emit bills of credit. But
the question arises, what is a bill of credit within the meaning
of the constitution? On the answer to this must depend the
.constitutionality or unconstitutionality of tie act in question.
192 CASES ON CONSTITUTIONAL LAW.
A State can act only through its agents; and it would be
absurd to say that any act was not done by a State which was
done by its authorized agents.
To constitute a bill of credit within the constitution, it must
be issued by a State, on the faith of the State, and be designed
to circulate as money. It must be a paper which circulates on
the credit of the State ; and is so received and used in the ordi-
nary business of life.
The individual or committee who issue the bill must have the
power to bind the State ; they must act as agents ; and, of course,
do not incur any personal responsibility, nor impart, as individ-
uals, any credit to the paper. These are the leading characteris-
tics of a bill of credit, which a State cannot emit. . . .
Were these notes issued by the State ?
Upon their face they do not purport to be issued by the State,
but by the president and directors of the bank. They promise to
pay to bearer on demand the sums stated. Were they issued on
the faith of the State ? The notes contain no pledge of the faith
of the State in any form. They purport to have been issued on
the credit of the funds of the bank, and must have been so
received in the community.
But these funds, it is said, belonged to the State; and the
promise to pay on the face of the notes was made by the presi-
dent and directors as agents of the State. They do not assume
to act as agents, and there is no law which authorizes them to
bind the State. As in, perhaps, all bank charters, they had the
power to issue a certain amount of notes; but they determined
the time and circumstances which should regulate these issues.
When a State emits bills of credit, the amount to be issued is
fixed by law, as also the fund out of which they are to be paid,
if any fund be pledged for their redemption ; and they are issued
on the credit of the State, which, in some form, appears upon
the face of the notes, or by the signature of the person who
issues them.
As to the funds of the Bank of the Commonwealth, they were,
in part only, derived from the State. The capital, it is true, was
to be paid by the State; but in making loans the bank was re-
quired to take good securities, and these constituted a fund, to
which the holders of the notes could look for payment, and which
could be made legally responsible.
In this respect the notes of this bank were essentially different
from any class of bills of credit which are believed to have been
issued. •
BRISCOE V. BANK OF KENTUCKY. 193
The notes were not payable in gold and silver on demand, but
there was a fund, and, in all probability, a sufficient fund, to
redeem them. This fund was in possession of the bank, and
under the control of the president and directors. But whether
the fund was adequate to the redemption of the notes issued, or
not, is immaterial to the present inquiry. It is enough that the
fund existed, independent of the State, and was sufficient to
give some degree of credit to the paper of the bank.
The question is not whether the Bank of the Commonwealth
had a large capital or a small one, or whether its notes were in
good credit or bad, but whether they were issued by the State,
and on the faith and credit of the State. The notes were received
in payment of taxes, and in discharge of all debts to the State ;
and this, aided by the fund arising from notes discounted, with
prudent management, under favorable circumstances, might
have sustained, and, it is believed, did sustain, to a considerable
extent, the credit of the bank. The notes of this bank which are
still in circulation are equal in value, it is said, to specie.
But there is another quality which distinguished these notes
from bills of credit. Every holder of them could not only look
to the funds of the bank for payment, but he had in his power
the means of enforcing it.
The bank could be sued; and the records of this court show
that while its paper was depreciated, a suit was prosecuted to
judgment against it by a depositor, and who obtained from the
bank, it is admitted, the full amount of his judgment in specie.
. . . [Here follows a description of bills issued by Maryland
and South Carolina.]
If the leading properties of the notes of the Bank of the Com-
monwealth were essentially different from any of the numerous
classes of bills of credit, issued by the States or colonies ; if they
were not emitted by the State, nor upon its credit, but on the
credit of the funds of the bank; if they were payable in gold
and silver on demand, and the holder could sue the bank; and
if to constitute a bill of credit it must be issued by a State, and
on the credit of the State, and the holder could not, by legal
means, compel the payment of the bill, how can the character of
these two descriptions of paper be considered as identical ? They
were both circulated as money; but in name, in form, and in
substance, they differ. . . .
It is admitted by the counsel for the plaintiffs that a State
may become a stockholder in a bank; but they contend that it
cannot become the exclusive owner of the stock. They give no
E. C. L.— 13
194 CASES ON CONSTITUTIONAL LAW.
rule by which the interest of a State in such an institution shall
be graduated, nor at what point the exact limit shaU be fixed.
May a State own one-fourth, one-half, or three-fourths of the
stock ? If the proper limit be exceeded, does the charter become
unconstitutional ; and is its constitutionality restored if the State
recede within the limit ? The court are as much at a loss to fix
the supposed constitutional boundary of this right as the counsel
can possibly be.
If the State must stop short of o,wning the entire stock, the
precise point may surely be ascertained. It cannot be supposed
that so important a constitutional principle as contended for
exists without limitation. If a State may own a ,part of the
stock of a bank, we know of no principle which prevents it from
owning the whole. As a stockholder, in the language of this
court, above cited, it can exercise no more power in the affairs
of the corporation than is expressly given by the incorporating
act. It has no more power than any other stockholder to the
same extent. . . .
If these positions be correct, is there not an end to this con-
troversy? If the Bank of the Commonwealth is not the State,
nor the agent of the State ; if it possess no more power than is
given to it in the act of incorporation, and precisely the same
as if the stock were owned by private individuals, how can it be
contended that the notes of the bank can be called bills of credit,
in contradistinction from the notes of other banks? If, in be-
coming an exclusive stockholder in this bank, the State imparts
to it none of its attributes of sovereignty; if it holds the stock
as any other stockholder would hold it, how can it be said to
emit bills of credit? Is it not essential to constitute a bill of
credit within the constitution, that it should be emitted by a
State? Under its charter the bank has no power to emit bills
which have the impress of the sovereignty, or which contain a
pledge of its faith. It is a simple corporation, acting within
the sphere of its corporate powers, and can no more transcend
them than any other banking institution. The State, as a stock-
holder, bears the same relation to the bank as any other stock-
holder.
The funds of the bank and its property, of every description,
are held responsible for the payment of its debts, and may be
reached by legal or equitable process. In this respect, it can
claim no exemption under the prerogatives of the States. And
if, in the course of its operations, its notes have depreciated like
the notes of other banks, under the pressure of circumstances,
JUILLIARD V. GRBENMAN. 195
still it must stand or fall by its charter. In this its powers are
defined, and its rights, and the rights of those who give credit
to it, are guaranteed. And even an abuse of its powers, through
which its credit has been impaired and the community injured,
cannot be considered in this case.
We are of the opinion that the act incorporating the Bank
of the Commonwealth was a constitutional exercise of power by
the State of Kentucky, and, consequently, that the notes issued
by the bank are not bills of credit within the meaning of the
federal constitution. The judgment of the court of appeals is
therefore aifirmed, with interest and costs. . . .
Thompson, J., concurring. . . . Stokt, J., dissenting.
Note. — Accord: Woodruff v. Trapnall (1851), 10 Howard, 190; Dar-
rington v. Bank of Alabama (1851), 13 Howard, 12. Compare Poindexter
V. Greenhow (1885), 114 U. S. 270; Houston &c. Ey. v. Texas (1900), 177
U. S. 66. The principal case was first argued in 1834, when three of the
five judges who heard it thought it was controlled by Craig v. Missouri.
Among the three were Marshall and Story. It was the rule of the Court
not to pronounce a State law invalid unless a majority of the Court should
concur. Hence no decision was rendered. When the case came up again in
1837, Marshall had died and two new judges had been appointed. The
second argument proceeded on exactly the same ground as the first, but
only Story adhered to the original view of the majority of the Court. See
his strong dissenting opinion. For an interesting discussion of the con-
nection of the decision with wild-cat banking and the legal tender question,
see Sumner, Jackson, ch. VI.
Section 2. Legal, Tender Notes.
The Congress shall have power . . .
To borrow money on the credit of the United States; . . .
To coin money, regulate the value thereof, and of foreign coin.
Constitution of the United States, Art. I, sec. 8.
No State shall . . . coin money; emit bills of credit;
make anything but gold and silver coin a tender in payment of
debts.
Constitution of the United States, Art. I, see. 9.
JUILLIARD V. GREENMAN.
Supreme Coukt op the United States. 1884.
110 U. S. 421; 28 Lawyers' Ed. 204.
[By the acts of February 25, 1862, July 11, 1862, and March
3, 1863, Congress authorized the issue of notes which should "be
196 CASES ON CONSTITUTIONAL LAW.
lawful money and a legal tender in payment of all debts, pub-
lic and private, within the United States," except for duties on
imports and interest on the public debt. By the act of Jan-
uary 14, 1875, the Secretary of the Treasury was authorized to
redeem the legal tender notes then outstanding. By the act of
May 31, 1878, entitled "An act to forbid the further retirement
of United States legal tender notes, ' ' it was provided :
' ' From and after the passage of this act it shall not be lawful
for the Secretary of the Treasury or other officer under him to
cancel or retire any more of the United States legal tender notes.
And when any of said notes may be redeemed or be received into
the Treasury under any law from any source whatever and shall
belong to the United States, they shall not be retired, cancelled,
or destroyed, but they shall be reissued and paid out again and
kept in circulation."
The defendant in the present action, being indebted to the
plaintiff in the sum of $5,122.90, offered in payment thereof
$22.90 in gold and silver coin and $5,100 in legal tender notes
which had been redeemed and reissued in pursuance of the act
of 1878. The plaintiff refused to receive the notes and brought
suit for the sum due. The Circuit Court gave judgment for
the defendant, whereupon the plaintiff sued out a writ of error.]
Mr. Justice Gray delivered the opinion of the court. . . .
The manifest intention of this act is that the notes which it
directs, after having been redeemed, to be reissued and kept in
circulation, shall retain their original quality of being a legal
tender.
The single question, therefore, to be considered, and upon the
answer to which the judgment to be rendered between these par-
ties depends, is whether notes of the United States, issued in time
of war, under acts of Congress declaring them to be a legal
tender in payment of private debts, and afterwards in time of
peace redeemed and paid in gold coin at the Treasury, and then
reissued under the act of 1878, can, under the Constitution of
the United States, be a legal tender in payment of such debts.
By the Articles of Confederation of 1777, the United States in
Congress assembled were authorized "to borrow money or emit
bills on the credit of the United States;" but it was declared
that "each State retains its sovereignty, freedom and independ-
ence, and every power, jurisdiction and right which is not by
this confederation expressly delegated to the United States ia
JUILLIARD V. GREBNMAN. 197
Congress assembled." Art. 2, art. 9, §5; 1 Stat., 4, 7. Yet,
upon the question whether, under those articles. Congress, by
virtue of the power to emit bills on the credit of the United
States, had the power to make bills so emitted a legal tender,
Chief Justice Marshall spoke very guardedly, saying: "Con-
gress emitted bills of credit to a large amount, and did not, per-
haps could not, make them a legal tender. This power resided
in the States." Craig v. Missouri, 4 Pet. 410, 435. But in the
Constitution, as he had before observed in McCuUoch v. Mary-
land, "there is no phrase which, like the Articles of Confedera-
tion, excludes incidental or implied powers; and which requires
that everything granted shall be expressly and minutely de-
scribed. Even the Tenth Amendment, which was framed for the
purpose of quieting the excessive jealousies which had been
excited, omits the word 'expressly,' and declares only that the
powers 'not delegated to the United States, nor prohibited to
the States, are reserved to the States or to the people ; ' thus leav-
ing the question, whether the particular power which may be-
come the subject of contest has been delegated to the one gov-
ernment or prohibited to the other, to depend on a fair con-
struction of the whole instrument. The men who drew and
adopted this amendment had experienced the embarrassments
resulting from the insertion of this word in the Articles of Con-
federation, and probably omitted it to avoid those embarrass-
ments." 4 Wheat. 406, 407. . . .
Such reports as have come down to us of the debates in the
Convention that framed the Constitution afford no proof of any
general concurrence of opinion upon the subject before us. The
adoption of the motion to strike out the words "and emit bills"
from the clause ' ' to borrow money and emit bills on the credit of
the United States" is quite inconclusive. The philippic delivered
before the Assembly of Maryland by Mr. Martin, one of the
delegates from that State, who voted against the motion, and
who declined to sign the Constitution, can hardly be accepted as
satisfactory evidence of the reasons or the motives of the major-
ity of the Convention. See 1 Elliot's Debates, 345, 370, 376.
Some of the members of the Convention, indeed, as appears by
Mr. Madison's minutes of the debates, expressed the strongest
opposition to paper money. And Mr. Madison has disclosed the
grounds of his own action, by recording that "this vote in the
afSrmative by Virginia was occasioned by the acquiescence of Mr.
Madison, who became satisfied that striking out the words would
not disable the government from the use of public notes, so far
198 CASES ON CONSTITUTIONAL LAW.
as they could be safe and proper; and would only cut off the
pretext for a paper currency, and particularly for making the
bills a tender, either for public or private debts." But he has
not explained why he thought that striking out the words ' ' and
emit bills" would leave the power to emit bills, and deny the
power to make them a tender in payment of debts. And it can-
not be known how many of the other delegates, by whose vote
the motion was adopted, intended neither to proclaim nor to
deny the power to emit paper money, and were influenced by
the argument of Mr. Gorham, who "was for striking out, with-
out inserting any prohibition," and who said: "If the words
stand, they may suggest and lead to the emission. " " The power,
so far as it will be necessary or safe, will be involved in that of
borrowing." 5 Elliot's Debates, 434, 435, and note. And after
the first clause of the tenth section of the first article had been
reported in the form in which it now stands, forbidding the
States to make anything but gold or silver coin a tender in pay-
ment of debts, or to pass any law impairing the obligation of
contracts, when Mr. Gerry, as reported by Mr. Madison, "en-
tered into observations inculcating the importance of public
faith, and the propriety of the restraint put on the States from
impairing the obligation of contracts, alleging that Congress
ought to be laid under the like prohibitions," and made a mo-
tion to that effect, he was not seconded. lb., 546. As an illus-
tration of the danger of giving too much weight, upon such a
question, to the debates and the votes in the Convention, it may
also be observed that propositions to authorize Congress to
grant charters of incorporation for national objects were strong-
ly opposed, especially as regarded banks, and defeated. lb., 440,
543, 544. The power of Congress to emit bills of credit, as well
as to incorporate national banks, is now clearly established by
decisions to which we shall presently refer.
The words "to borrow money," as used in the Constitution,
to designate a power vested in the national government, for the
safety and welfare of the whole people, are not to receive that
limited and restricted interpretation and meaning which they
would have in a penal statute, or in an authority conferred,
by law or by contract, upon trustees or agents for private pur-
poses.
The power "to borrow money on the credit of the United
States" is the power to raise money for the public use on a
pledge of the public credit, and may be exercised to meet either
present or anticipated expenses and liabilities of the govern-
JUILLIARD V. GREENMAN. 199
ment. It includes the power to issue, in return for the money
borrowed, the obligations of the United States in any appro-
priate form, of stock, bonds, bills, or notes; and in whatever
form they are issued, being instruments of the national gov-
ernment, they are exempt from taxation by the governments
of the several States. Weston v. Charleston City Council, 2 Pet.
449 ; Banks v. Mayor, 7 Wall. 16 ; Bank v. Supervisors, 7 Wall.
26. Congress has authority to issue these obligations in a form
adapted to circulation from hand to hand in the ordinary trans-
actions of commerce and business. In order to promote and
facilitate such circulation, to adapt them to use as currency,
and to make them more current in the market, it may provide
for their redemption in coin or bonds, and may make them re-
ceivable in payment of debts to the government. So much is
settled beyond doubt, and was asserted or distinctly admitted
by the judges who dissented from the decision in the Legal Ten-
der Cases, as well as by those who concurred in that decision.
Veazie Bank v. Fenno, 8 Wall. 533, 548 ; Hepburn v. Griswold,
8 Wall. 616, 636 ; Legal Tender Cases, 12 Wall. 543, 544, 560,
582, 610, 613, 637.
It is equally well settled that Congress has the power to in-
corporate national banks, with the capacity, for their own profit
as well as for the use of the government in its money trans-
actions, of issuing bills which under ordinary circumstances
pass from hand to hand as money at their nominal value, and
which, when so current, the law has always recognized as a good
tender in payment of money debts, unless specifically objected
to at the time of the tender. United States Bank v. Bank of
Georgia, 10 Wheat. 333, 347 ; Ward v. Smith, 7 Wall. 447, 451.
The power of Congress to charter a bank was maintained in
McCulloch V. Maryland, 4 Wheat. 316, and in Osborn v. United
States Bank, 9 Wheat. 738, chiefly upon the ground that it was
an appropriate means for carrying on the money transactions
of the government. But Chief Justice Marshall said: "The
currency which it circulates, by means of its trade with individ-
uals, is believed to make it a more fit instrument for the purposes
of government than it could otherwise be; and if this be true,
the capacity to carry on this trade is a faculty indispensable to
the character and objects of the institution." 9 Wheat. 864. And
Mr. Justice Johnson, who concurred with the rest of the court
in upholding the power to incorporate a bank, gave the further
reason that it tended to give effect to "that power over the cur-
200 CASES ON CONSTITUTIONAL LAW.
rency of the country, which the framers of the Constitution evi-
dently intended to give to Congress alone." lb., 873.
The constitutional authority of Congress to provide a cur-
rency for the vyhole country is now firmly established. In Vea-
zie Bank v. Fenno, 8 Wall. 533, 548, Chief Justice Chase, in de-
livering the opinion of the court, said: "It cannot be doubted
that under the Constitution the power to provide a circulation of
coin is given to Congress. And it is settled by the uniform
practice of the government, and by repeated decisions, that
Congress may constitutionally authorize the emission of bills
of credit." Congress, having undertaken to supply a national
currency, consisting of coin, of treasury notes of the United
States, and of the bills of national banks, is authorized to im-
pose on all State banks, or national banks, or private bankers,
paying out the notes of individuals or of State banks, a tax of
ten per cent, upon the amount of such notes so paid out. Veazie
Bank v. Fenno, above cited; National Bank v. United States,
101 U. S. 1. The reason for this conclusion was stated by Chief
Justice Chase, and repeated by the present Chief Justice, in
these words: "Having thus, in the exercise of undisputed con-
stitutional powers, undertaken to provide a currency for the
whole country, it cannot be questioned that Congress may, con-
stitutionally, secure the benefit of it to the people by appro-
priate legislation. To this end. Congress has denied the quality
of legal tender to foreign coins, and has provided by law against
the imposition of counterfeit and base coin on the community.
To the same end. Congress may restrain, by suitable enactments,
the circulation as money of any notes not issued under its own
authority. Without this power, indeed, its attempts to secure
a sound and uniform currency for the country must be futile."
8 Wall. 549 ; 101 U. S. 6.
By the Constitution of the United States, the several States
are prohibited from coining money, emitting bills of credit, or
making anything but gold and silver coin a tender in payment
of debts. But no intention can be inferred from this to deny to
Congress ei&er of these powers. Most of the powers granted to
Congress are described in the eighth section of the first article;
the limitations intended to be set to its powers, so as to exclude
certain things which might otherwise be taken to be included
in the general grant, are defined in the ninth section; the tenth
section is addressed to the States only. This section prohibits
the States from doing some things which the United States are
expressly prohibited from doing, as well as from doing some
JUILLIARD V. GREENMAN. 201
things which the United States are expressly authorized to do,
and from doing some things which are neither expressly granted
nor expressly denied to the United States. Congress and the
States equally are expressly prohibited from passing any bill of
attainder or ex post facto law, or granting any title of nobil-
ity. The States are forbidden, while the President and Senate
are expressly authorized, to make treaties. The States are for-
bidden, but Congress is expressly authorized to coin money.
The States are prohibited from emitting bills of credit; but
Congress, which is neither expressly authorized nor expressly
forbidden to do so, has, as we have already seen, been held to
have the power of emitting bills of credit, and of making every
provision for their circulation as currency, short of giving them
the quality of legal tender for private debts — even by those
who have denied its authority to give them this quality.
It appears to us to follow, as a logical and necessary conse-
quence, that Congress has the power to issue the obligations of
the United States in such form, and to impress upon them such
qualities as currency for the purchase of merchandise and the
payment of debts, as accord with the usage of sovereign govern-
ments. The power, as incident to the power of borrowing money
and issuing bills or notes of the government for money bor-
rowed, of impressing upon those bills or notes the quality of
being a legal tender for the payment of private debts, was a
power universally understood to belong to sovereignty, in Eu-
rope and America, at the time of the framing and adoption of
the Constitution of the United States. The governments of
Europe, acting through the monarch or the legislature, accord-
ing to the distribution of powers under their respective con-
stitutions, had and have as sovereign a power of issuing paper
money as of stamping coin. This power has been distinctly rec-
ognized in an important modem case, ably argued and fully con-
sidered, in which the Emperor of Austria, as King of Hungary,
obtained from the English Court of Chancery an iajunotion
against the issue in England, without his license, of notes pur-
porting to be public paper money of Hungary. Austria v. Day,
2 Giff. 628, and 3 D. F. & J. 217. The power of issuing bills of
credit, and making them, at the discretion of the legislature, a
tender in payment of private debts, had long been exercised in
this country by the several Colonies and States ; and durrug the
Revolutionary War the States, upon the recommendation of the
Congress of the Confederation, had made the bills issued by
Congress a legal tender. See Craig v. Missouri, 4 Pet. 435, 453 ;
202 CASES ON CONSTITUTIONAL LAW.
Briscoe v. Bank of Kentucky, 11 Pet. 257, 313, 334-336 ; Legal
Tender Cases, 12 Wall. 557, 558, 622; Phillips on American
Paper Currency, passim. The exercise of this power not being
prohibited to Congress by the Constitution, it is included in the
power expressly granted to borrow money on the credit of the
United States.
This position is fortified by the fact that Congress is vested
with the exclusive exercise of the analogous power of coining
money and regulating the value of domestic and foreign coin,
and also with the paramount power of regulating foreign and
interstate commerce. Under the power to borrow money on the
credit of the United States, and to issue circulating notes for the
money borrowed, its power to define the quality and force of
those notes as currency is as broad as the like power over a
metallic currency under the power to coin money and to regu-
late the value thereof. Under the two powers, taken together.
Congress is authorized to establish a national currency, either
in coin or in paper, and to make that currency lawful money
for all purposes, as regards the national government or private
individuals.
The power of making the notes of the United States a legal
tender in payment of private debts, being included in the power
to borrow money and to provide a national currency is not de-
feated or restricted by the fact that its exercise may afEect the
value of private contracts. If, upon a just and fair interpre-
tation of the whole Constitution, a particular power or authority
appears to be vested in Congress, it is no constitutional objec-
tion to its existence, or to its exercise, that the property or the
contracts of individuals may be incidentally affected. The de-
cisions of this court, already cited, afford several examples of
this.
Upon the issue of stock, bonds, bills, or notes of the United
States, the States are deprived of their power of taxation to the
extent of the property invested by individuals in such obliga-
tions, and the burden of State' taxation upon other private prop-
erty is correspondingly increased. The ten per cent, tax, imposed
by Congress on notes of State banks and of private bankers, not
only lessens the value of such notes, but tends to drive them, and
all State banks of issue, out of existence. The priority given to
debts due to the United States over the private debts of an in-
solvent debtor diminishes the value of these debts, and the
amount which their holders may receive out of the debtor's
estate.
JUILLIARD V. GRBENMA]^. 203
So, under the power to coin money and to regulate its value,
Congress may (as it did with regard to gold by the act of June
28, 1834, c. 95, and with regard to silver by the act of Feb-
ruary 28, 1878, c. 20) issue coins of the same denominations as
those already current by law, but of less iatrinsie value than
those, by reason of containing a less weight of the precious
metals, and thereby enable debtors to discharge their debts by
the payment of coins of the less real value. A contract to pay
a certain sum in money, without any stipulation as to the kind
of money in which it shall be paid, may always be satisfied by
payment of that sum in any currency which is lawful money
at the place and time at which payment is to be made. 1 Hale
P. C. 192-194; Bac. Ab. Tender, B. 2; Pothier, Contract of Sale,
No. 416; Pardessus, Droit Commercial, Nos. 204, 205; Searight
V. Calbraith, 4 Dall. 324. As observed by Mr. Justice Strong,
in delivering the opinion of the court in the Legal Tender Cases,
' ' Every contract for the payment of money, simply, is necessarily
subject to the constitutional power of the government over the
currency, whatever that power may be, and the obligation of the
parties is, therefore, assumed with reference to that power."
12 Wall. 549.
Congress, as the legislature of a sovereign nation, being ex-
pressly empowered by the Constitution, "to lay and collect
taxes, to pay the debts and provide for the common defense and
general welfare of the United States," and "to borrow money
on the credit of the United States," and "to coin money and
regulate the value thereof and of foreign coin ; ' ' and being clear-
ly authorized, as incidental to the exercise of those great pow-
ers, to emit biUs of credit, to charter national banks, and to
provide a national currency for the whole people, ia the form of
coin, treasury notes, and national bank bills; and the power to
make the notes of the government a legal tender in payment of
private debts being one of the powers belonging to sovereignty
in other civilized nations, and not expressly withheld from Con-
gress by the Constitution ; we are irresistibly impelled to the con-
clusion that the impressing upon the treasury notes of the United
States the quality of being a legal tender in payment of private
debts is an appropriate means, conducive and plainly adapted
to the execution of the undoubted powers of Congress, consis-
tent with the letter and spirit of the Constitution, and there-
fore, within the meaning of that instrument, "necessary and
proper for carrying into execution the powers vested by this
Constitution in the government of the United States."
204 CASES ON CONSTITUTIONAL LAW.
Such being our eonclusioli in matter of law, tlie question
whether at any particular time, in war or in peace, the exigency
is such, by reason of unusual and pressing demands on the re-
sources of the government, or of the inadequacy of the supply
of gold and silver coin to furnish the currency needed for the
uses of the government and of the people, that it is, as matter of
fact, wise and expedient to resort to this means, is a political
question, to be determined by Congress when the question of
exigency arises, and not a judicial question, to be afterwards
passed upon by the courts. To quote once more from the judg-
ment in McCuUoeh v. Maryland: "Where the law is not pro-
hibited, and is really calculated to effect any one of the objects
intrusted to the government, to undertake here to inquire into
the degree of its necessity would be to pass the line which cir-
cumscribes the judicial department, and to tread on legislative
ground." 4 Wheat. 423.
It follows that the act of May 31, 1878, e. 146, is constitutional
and valid; and that the Circuit Court rightly held that the ten-
der in treasury notes, reissued and kept in circulation under
that act, was a tender of lawful money in payment of the de-
fendant's debt to the plaintiff. Judgment affirmed.
Mr. Justice Field, dissenting. . . .
Note. — The legal tender question was before the Supreme Court in
three important cases. The first one, Hepburn v. Griswold (1870), 8 Wallace,
603, involved the validity of the legal tender acts as applied to the payment
of debts contracted before their passage. The opinion holding the acts
invalid was written by Chief Justice Chase, who was himself, as Secretary of
the Treasury, the author of the acts in question. The opinion contains a
valuable resumS of the financial legislation of the Civil war. When the
question came before the Court again in the Legal Tender Cases (1871),
12 Wallace, 457, the previous decision was overruled, and the legal tender
acts, which were passed in the midst of the Civil war, were held to be a
valid exercise of the war power, and to apply to debts contracted both before
and after their enactment. There were four dissenting justices, among
them Chief Justice Chase. The concurring opinion of Justice Bradley,
part of which is quoted ante page 37, foreshadows the opinion in the
principal case.
As to the effect of the legal tender acts on contracts specifically pro-
viding for payment in coin, see Bronson v. Bodes (1869), 7 Wallace, 229,
and Trebilcock v. Wilson (1871), 12 WaUace, 687. As to their effect on
State laws requiring payment of taxes in coin, see Lane County v. Oregon
(1869), 7 Wallace, 71. For a valuable discussion of the legal tender ques-
tion in both its historical and legal aspects, see J. B. Thayer, ' ' Legal Ten-
der, ' ' in Earvard Law Beview, I, 73, reprinted in his Legal Essays, 60, and
partly in his Cases on Constitutional Law, II, 2267.
CHAPTER YI.
TAXATION.
The Congress shall have power to lay and collect taxes, duties,
imposts and excises, to pay the debts and provide for the common
defense and general welfare of the United States; but all duties,
imposts, and excises shall be uniform throughout the United States.
Constitution of the United States, Art. I, sec. 8.
No tax or duty shall be laid on articles exported from any
State.
Constitution of the United States, Art. I, sec. 9.
No State shall, without the consent of Congress, lay any im-
posts or duties on imports or exports, except what may be abso-
lutely necessary for executing its 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 review and control of
Congress.
Constitution of the United States, Art. I, sec. 10.
Section 1. What is a Tax.
LOAN ASSOCIATION v. TOPEKA.
Supreme Court of the United States. 1874.
20 Wallace, 655; 22 Lawyers' Ed. 455.
Error to the Circuit Court for the District of Kansas.
[Acting under authority of an act of the legislature of Kan-
sas, the City of Topeka issued its bonds to the amount of $100,000
which it presented to a company for the purpose of encouraging
it in its design of establishing a manufactory of iron bridges in
that city. The interest coupons first due were paid out of a
fund raised by taxation for that purpose. Afterward the Citi-
zens Saving and Loan Association of Cleveland, Ohio, purchased
the bonds, and brought suit for interest due thereon. The city
demurred, and this raised for consideration the question of the
authority of the legislature of Kansas to enact the statute under
Note. — ^At this point the student should be reminded that the subject
matter of this and the following chapters is closely related, and a question
arising under any of these heads may require consideration from the stand-
point of one or more of the others.
205
206 CASES ON CONSTITUTIONAL LAW.
which the city acted. The court below sustained the demurrer,
and to its judgment a writ of error was taken.]
Mr. Justice Miller delivered the opinion of the court. , . .
"We find ample reason to sustain the demurrer on the second
ground on which it is argued by counsel and sustained by the
Circuit Court.
That proposition is that the act authorizes the towns and
other municipalities to which it applies, by issuing bonds or loan-
ing their credit, to take the property of the citizen under the
guise of taxation to pay these bonds, and use it in aid of the
enterprises of others which are not of a public character, thus
perverting the right of taxation, which can only be exercised for
a public use, to the aid of individual interests and personal pur-
poses of profit and gain.
The proposition as thus broadly stated is not new, nor is the
question which it raises difficult of solution.
If these municipal corporations, which are in fact subdivisions
of the State, and which for many reasons are vested with quasi-
legislative powers, have a fund or other property out of which
they can pay the debts which they contract, without resort to
taxation, it may be within the power of the legislature of the
State to authorize them to use it in aid of projects strictly pri-
vate or personal, but which would in a secondary manner con-
tribute to the public good ; or where there is property or money
vested in a corporation of the kind for a particular use, as pub-
lic worship or charity, the legislature may pass laws authoriz-
ing them to make contracts in reference to this property, and
incur debts payable from that source.
But such instances are few and exceptional, and the proposi-
tion is a very broad one, that debts contracted by municipal cor-
porations must be paid, if paid at all, out of taxes whieli they
may lawfully levy, and that all contracts creating debts to be
paid in future, not limited to payment from some other source,
imply an obligation to pay by taxation. It follows that in this
class of cases the right to contract must be limited by the right
to tax, and if in the given case no tax can lawfully be levied to
pay the debt, the contract itself is void for want of authority
to make it.
If this were not so, these corporations could make valid prom-
ises, which they have no means of fulfilling, and on which even
the legislature that created them can confer no such power. The
LOAN ASSOCIATION v. TOPBKA. 207
validity of a contract which can only be fulfilled by a resort to
taxation depends on the power to levy the tax for that purpose.
Sharpless v. Mayor of Philadelphia, 21 Pa. St. 147, 167 ; Han-
son V. Vernon, 27 Iowa, 28; Allen v. Inhabitants of Jay, 60
Maine, 127; Lowell v. Boston, Mass., Ill Mass. 454; Whiting
V. Fond du Lac, 25 Wis. 188.
It is, therefore, to be inferred that when the legislature of the
State authorizes a county or city to contract a debt by bond, it
intends to authorize it to levy such taxes as are necessary to
pay the debt, unless there is in the act itself, or in some general
statute, a limitation upon the power of taxation which repels
such an inference.
With these remarks and with the reference to the authorities
which support them, we assume that unless the legislature of
Kansas had the right to authorize the counties and towns in
that State to levy taxes to be used in aid of manufacturing en-
terprises, conducted by individuals, or private corporations, for
purposes of gain, the law is void, and the bonds issued under it
are also void. We proceed to the inquiry whether such a power
exists in the legislature of the State of Kansas.
We have already said the question is not new. The subject of
the aid voted to railways by counties and towns has been brought
to the attention of the courts of almost every State in the Union.
It has been thoroughly discussed and is still the subject of dis-
cussion in those courts. It is quite true that a decided prepon-
derance of authority is to be found in favor of the proposition
that the legislatures of the States, unless restricted by some
special provisions of their constitutions, may confer upon these
municipal bodies the right to take stock in corporations created
to build railroads, and to lend their credit to such corporations.
Also to levy the necessary taxes on the inhabitants, and on prop-
erty within their limits subject to general taxation, to enable
them to pay the debts thus incurred. But very few of these
courts have decided this without a division among the judges
of which they were composed, while others have decided against
the existence of the power altogether. The State v. Wapello Co.,
9 Iowa, 308 ; Hanson v. Vernon, 27 Id. 28 ; Sharpless v. Mayor,
etc., 21 Pa. St. 147; Whiting v. Fond du Lac, 25 Wis. 188.
In all these cases, however, the decision has turned upon the
question whether the taxation by which this aid was afforded to
the building of railroads was for a public purpose. Those who
came to the conclusion that it was, held the laws for that pur-
208 CASES ON CONSTITUTIONAL LAW.
pose valid. Those who could not reach that conclusion held them
void. In all the controversy this has been the turning point of
the judgments of the courts. And it is safe to say that no court
has held debts created in aid of railroad companies, by counties
or towns, valid on any other ground than that the purpose for
which the taxes were levied was a public use, a purpose or object
which it was the right and the duty of State governments to
assist by money raised from the people by taxation. The argu-
ment in opposition to this power has been, that railroads built
by corporations organized mainly for purposes of gain — the
roads which they built being under their control, and not that
of the State — were private and not public roads, and the tax
assessed on the people went to swell the profits of individuals
and not to the good of the State, or the benefit of the public, ex-
cept in a remote and collateral way. On the other hand, it was
said that roads, canals, bridges, navigable streams, and all other
highways had in all times been matter of public concern. That
such channels of travel and of the carrying business had always
been established, improved, regulated by the State, and that the
railroad had not lost this character because constructed by in-
dividual enterprise, aggregated into a corporation.
We are not prepared to say that the latter view of it is not
the truei one, especially as there are other characteristics of a
public nature conferred on these corporations, such as the power
to obtain right of way, their subjection to the laws which govern
common carriers, and the like, which seem to justify the propo-
sition. Of the disastrous consequences which have followed its
recognition by the courts and which were predicted when it was
first established there can be no doubt.
We have referred to this history of the contest over aid to rail-
roads by taxation, to show that the strongest advocates for the va-
lidity of these laws never placed it on the ground of the unlimited
power in the State legislature to tax the people, but conceded
that where the purpose for which the tax was to be issued, could
no"longer be justly claimed to have this public character, but
was purely in aid of private or personal objects, the law author-
izing it was beyond the legislative power, and was an unauthor-
ized invasion of private right. Olcott v. Supervisors, 16 Wall.
689; People v. Salem, 20 Mich. 452; Jenkins v. Andover, 103
Mass. 94; Dillon on Municipal Corporations, § 587; 2 Eedfield's
Laws of Railways, 398, rule 2.
It must be conceded that there are such rights in every free
LOAN ASSOCIATION v. TOPEKA. 209
government beyond the control of the State. A government
which recognized no such rights, which held the lives, the liberty,
and the property of its citizens subject at all times to the abso-
lute disposition and unlimited control of even the most demo-
cratic depository of power, is after all but a despotism. It is
true it is a despotism of the many, of the majority, if you choose
to call it so, but it is none the less a despotism. It may well be
doubted if a man is to hold all that he is accustomed to call his
own, all in which he has placed his happiness, and the security
of which is essential to that happiness, under the unlimited do-
minion of others, whether it is not wiser that this power should
be exercised by one man than by many. The theory of our gov-
ernments, State and National, is opposed to the deposit of un-
limited power anywhere. The executive, the legislative, and
the judicial branches of these governments are all of limited and
defined powers.
There are limitations on such power which grow out of the
essential nature of all free governments. Implied reservations
of individual rights, without which the social compact could not
exist, and which are respected by all governments entitled to the
name. No court, for instance, would hesitate to declare void a
statute which enacted that A and B, who were husband and wife
to each other, should be so no longer, but that A should there-
after be the husband of C, and B the wife of D. Or which should
enact that the homestead now owned by A should no longer be
his, but should henceforth be the property of B. "Whiting v.
Fond du Lac, 25 Wis. 188 ; Cooley on Constitutional Limitations,
129, 175, 487; Dillon on Municipal Corporations, § 587.
Of aU the powers conferred upon government that of taxa-
tion is most liable to abuse. Given a purpose or object for which
taxation may be lawfully used, and the extent of its exercise is
in its very nature unlimited. It is true that express limitation
on the amount of tax to be levied or the things to be taxed may
be imposed by constitution or statute, but in most instances for
which taxes are levied, as the support of government, the prose-
cution of war, the National defense, any limitation is unsafe.
The entire resources of the people should in some instances be
at the disposal of the government.
The power to tax is therefore, the strongest, the most pervad-
ing of all the powers of government, reaching directly or indi-
rectly to all cfasses of the people. It was said by Chief Justice
Marshall, in the case of McCuUoch v. The State of Maryland,
E. C. I.-— 14
210, CASES ON CONSTITUTIONAL LAW.
4 "Wheat. 431, that the power to tax is the power to destroy.^
A striking instance of the truth of the proposition is seen in the
fact that the existing tax of ten per cent, imposed by the United
States on the circulation of all other banks than the National
banks, drove out of existence every State bank of circulation
within a year or two after its passage. This power can as readily
be employed against one class of individuals and in favor of
another, so as to ruin the one class and give unlimited wealth
and prosperity to the other, if there is no implied limitation of
the uses for which the power may be exercised.
To lay with one hand the power of the government on the
property of the citizen, and with the other to bestow it upon
favored individuals to aid private enterprises and build up pri-
vate fortunes, is none the less a robbery because it is done under
the forms of law and is called taxation. This is not legislation.
It is a decree under legislative forms. . . .
We have established, we think, beyond cavil that there can
be no lawful tax which is not laid for a public purpose. It may
not be easy to draw the line in all cases so as to decide what is a
public purpose in this sense and what is not.
It is undoubtedly the duty of the legislature which imposes
or authorizes municipalities to impose a tax to see that it is not
to be used for purposes of private interest instead of a public
use, and the courts can only be justified in interposing when a
violation of this principle is clear and the reason for interfer-
ence cogent. And in deciding whether, in the given case, the
object for which the taxes are assessed falls upon one side or the
other of this line, they must be governed mainly by the course
and usage of the government, the objects for which taxes have
been customarily and by long course of legislation levied, what
objects or purposes have been considered necessary to the sup-
port and for the proper use of the government, whether State
or municipal. Whatever lawfully pertains to this, and is sanc-
tioned by time and the acquiescence of the people, may well be
held to belong to the public use, and proper for the maintenance
of good government, though this may not be the only criterion
of rightful taxation.
But in the case before us, in which the towns are authorized
to contribute aid by way of taxation to any class of manufac-
turers, there is no difSculty in holding that this is not such a
1 The learned judge does not quote Marshall correctly. What the Chief
Justice said was, ' ' The power to tax involves the power to destroy. ' ' — Ed.
LOAN ASSOCIATION v. TOPEKA. 211
public purpose as we have been considering. If it be said that
a benefit results to the local public of a town by establishing
manufactures, the same may be said of any other business or
pursuit which employs capital or labor. The merchant, the me-
chanic, the innkeeper, the banker, the builder, the steamboat
owner are equally promoters of the public good, and equally
deserving the aid of the citizens by forced contributions. No
line can be drawn in favor of the manufacturer which would not
open the coffers of the public treasury to the importunities of
two-thirds of the business men of the city or town. . . .
Judgment affirmed.
Mr. Justice Clifford, dissenting. . . .
Note. — Accord: Parkeraburg v. Brown (1882), 106 TJ. S. 487; Cole v.
La Grange (1884), 113 U. S. 1, and Missouri Pacific Ey. v. Nebraska (1896),
164 U. S. 403. Examples of a public purpose are found in Pallbrqok
Irrigation District v. Bradley (1896), 164 U. S. 112 (establishment of an
irrigation district) ; Moore v. Sanford (1890), 151 Mass. 285 (improvement
of Boston harbor and construction of public wharves) ; Olcott v. Fond du
Lac County (1872), 16 Wallace, 678 (construction of a railway) but contra,
People V. Salem (1870), 20 Mich. 452; Prince v. Crocker (189G), 166 Mass.
347 (construction of a subway for passenger traffic) ; North Dakota v.
Nelson County (1890), 1 No. Dak. 88 (loans to farmers for purchase of
seed-grain in counties where there had been successive failures of crops),
but contra, State v. Osawkee Township (1875), 14 Kansas, 418; Burlington
Township v. Bea'sley (1876), 94 U. S. 310 (bonds in aid of a grist mill
operated by water-power), but contra, Osborne v. Adams County (1883), 106
U. S. 181 (where the grist miU was operated by steam) ; Van Sicklen v.
Burlington (1854), 27 Vt. 70 (maintenance of fire companies) ; Daggett v.
Colgan (1891), 92 Cal. 53, annotated in 14 L. E. A. 475 (appropriation for
a State exhibit at a world's fair). Levies were held not to be for a public
purpose in State ex rel v. Snitzler (1898), 143 Mo. 287 (tax to be expended
for support of needy students at the State university) ; Dodge v. Mission
Township (1901), 46 C. C. A. 661 (support of a public sorghum mill) ;
MacKenzie v. Wooley (1888), 39 La. Ann. 944 (aid in building a public
cotton compress); Lowell et al v. Boston (1873), 111 Mass. 454 (loans to
land owners whose buildings had been destroyed in the Boston fire) ; Michi-
gan Sugar Co. v. Auditor General (1900), 124 Mich. 674 (payment of a
sugar bounty) ; Deal v. Mississippi County (1891), 107 Mo. 464 (aid in
planting trees on private land) ; Attorney-General v. Eau Claire (1875),
37 Wis. 400 (construction of a dam for purpose of selling water power to
manufacturers ) .
See Cooley, A Treatise on the Law of Taxation, ch. iv ; Gray, Limitations
of the Taxing Power, eh. iv; Judson, A Treatise on the Power of Taxation,
ch. xii.
212 CASES ON CONSTITUTIONAL LAW.
Section 2. The Taxation of Agencies op Government,
Mcculloch v. the state op Maryland et al.
Supreme Court op the United States. 1819.
4 Wheaton, 316; 4 Lawyers' Ed. 579.
[The statement of facts and the first part of the opinion are
given ante, page 12.]
Marshall, C. J., delivered the opinion of the court. . . .
It being the opinion of the court, that the act incorporating the
bank is constitutional; and that the power of establishing a
branch in the State of Maryland might be properly exercised by
the bank itself, we proceed to inquire : —
2. Whether the State of Maryland may, without violating the
constitution, tax that branch?
That the power of taxation is one of vital importance ; that it
is retained by the States ; that it is not abridged by the grant of
a similar power to the government of the Union ; that it is to be
concurrently exercised by the two governments : are truths which
have never been denied. But, such is the paramount character
of the constitution, that its capacity to withdraw any subject
from the action of even this power, is admitted. The States are
expressly forbidden to lay any duties on imports or exports,
except what may be absolutely necessary for executing their in-
spection laws. If the obligation of this prohibition must be con-
ceded — if it may restrain a State from the exercise of its taxing
power on imports and exports; the same paramount character
would seem to restrain, as it certainly may restrain, a State
from such other exercise of this power, as is in its nature in-
compatible with, and repugnant to, the constitutional laws of
the Union. A law, absolutely repugnant to another, as entirely
repeals that other as if express terms of repeal were used.
On this ground, the counsel for the bank place its claim to be
exempted from the power of a State to tax its operations. There
is no express provision for the case, but the claim has been sus-
tained on a principle which so entirely pervades the constitution,
is so intermixed with the materials which compose it, so inter-
woven with its web, so blended with its texture, as to be incapa-
ble of being separated from it, without rending it into shreds.
This great principle is, that the constitution and the laws
made in pursuance thereof are supreme; that they control the
constitution and laws of the respective States, and cannot be
Mcculloch v. state of Maryland. 213
controlled by them. Prom this, which may be almost termed an
axiom, other propositions are deduced as corollaries, on the truth
or error of which, and on their application to this case, the cause
has been supposed to depend. These are, 1. That a power to cre-
ate implies a power to preserve. 2. That a power to destroy, if
wielded by a different hand, is hostile to, and incompatible with,
these powers to creat and preserve. 3. That where this repug-
nancy exists, the authority which is supreme must control, not
yield, to that over which it is supreme.
These propositions, as abstract truths, would, perhaps, never
be controverted. Their application to this case, however, has
been denied; and, both in maintaining the affirmative and the
negative, a splendor of eloquence, and strength of argument,
seldom, if ever, surpassed, have been displayed.
The power of congress to create, and of course to continue,
the bank, was the subject of the preceding part of this opinion;
and is no longer to be considered as questionable.
That the power of taxing it by the States may be exercised so
as to destroy it, is too obvious to be denied. But taxation is said
to be an absolute power, which acknowledges no other limits
than those expressly prescribed in the constitution, and like sov-
ereign power of every other description, is trusted to the dis-*
cretion of those who use it. But the very terms of this argu-
ment admit that the sovereignty of the State, in the article of
taxation itself, is subordinate to, and may be controlled by, the
constitution of the United States. How far it has been controlled
by that instrument must be a question of construction. In mak-
ing this construction, no principle not declared, can be admissi-
ble, which would defeat the legitimate operations of a supreme
government. It is of the very essence of supremacy to remove all
obstacles to its action within its own sphere, and so to modify
every power vested in subordinate governments, as to exempt
its own operations from their own influence. This effect need
not be stated in terms. It is so involved in the declaration of
supremacy, so necessarily implied in it, that the expression of
it could not make it more certain. "We must, therefore, keep it in
view while construing the constitution.
The argument on the part of the State of Maryland, is, not
that the States may directly resist a law of congress, but that
they may exercise their acknowledged power upon it, and that
the constitution leaves them this right in the confidence that
they will not abuse it.
Before we proceed to examine this argument, and to subject
214 CASES ON CONSTlttlTlONAL LAW.
it to the test of the constitution, we must be permitted to bestoW
a few considerations on the nature and extent of this original
right of taxation, which is acknowledged to remain with the
States. It is admitted that the power of taxing the people and
their property is essential to the very existence of government,
and may be legitimately exercised on the objects to which it is
applicable, to the utmost extent to which the government may
choose tct carry it. The only security against the abuse of this
power, is found in the structure of the government itself. In
imposing a tax the legislature acts upon its constituents. This
is in general a sufficient security against erroneous and oppres-
sive taxation.
The people of a State, therefore, give to their government a
right of taxing themselves and their property, and as the ex-
igencies of government cannot be limited, they prescribe no lim-
its to the exercise of this right, resting confidently on the inter-
est of the legislator, and on the influence of the constituents
over their representatives, to guard them against its abuse. But
the means employed by the government of the Union have no
such security, nor is the right of a State to tax them sustained
by the same theory. Those means are not given by the people
of a particular State, not given by the constituents of the legis-
lature, which claim the right to tax them, but by the people of
all the States. They are given by all, for the benefit of all;
and, upon theory, should be subjected to that government only
which belongs to all.
It may be objected to this definition, that the power of tax-
ation is not confined to the people and property of a State. It
may be exercised upon every object brought within its jurisdic-
tion.
This is true. But to what source do we trace this right? It
is obvious, that it is an incident of sovereignty, and is co-exten-
sive with that to which it is an incident. All subjects over which
the sovereign power of a State extends, are objects of taxation ;
but those over which it does not extend, are, upon the soundest
principles, exempt from taxation. This proposition may almost
be pronounced self-evident.
The sovereignty of a State extends to everything which exists
by its own authority, or is introduced by its permission ; but does
it extend to those means which are employed by congress to carry
into execution powers conferred on that body by the people of
the United States? We think it demonstrable that it does not.
Those powers are not given by the people of a single State.
Mcculloch v. state of Maryland. 215
They are given by the people of the United States, to a govern-
ment whose laws, made in pursuance of the constitution, are de-
clared to be supreme. Consequently, the people of a single State
cannot confer a sovereignty which will extend over them.
If we measure the power of taxation residing in a State, by
the extent of sovereignty which the people of a single State pos-
sess, and can confer oil its government, we have an intelligible
standard, applicable to every case to which the power may be
applied. "We have a principle which leaves the power of taxing
the people and property of a State unimpaired ; which leaves to
a State the command of all its resources, and which places be-
yond its reach, all those powers which are conferred by the peo-
ple of the United States on the government of the Union, and all
those means which are given for the purpose of carrying those
powers into execution. We have a principle which is safe for
the States, and safe for the Union. We are relieved, as we ought
to be, from clashing sovereignty ; from interfering powers ; from
a repugnancy between a right in one government to pull down
what there is an acknowledged right in another to build up;
from the incompatibility of a right in one government to destroy
what there is a right in another to preserve. We are not driven
to the perplexing inquiry, so unfit for the judicial department,
what degree of taxation is the legitimate use, and what degree
may amount to the abuse of the power. The attempt to use it
on the means employed by the government of the Union, in pur-
suance of the constitution, is in itself an abuse, because it is the
usurpation of a power, which the people of a single State can-
not give.
We find, then, on just theory, a total failure of this original
right to tax the means employed by the government of the Union,
for the execution of its powers. The right never existed, and the
question whether it has been surrendered, cannot arise.
But, waiving this theory for the present, let us resume the
inquiry, whether this power can be exercised by the respective
States, consistently with a fair construction of the constitution ?
That the power to tax involves the power to destroy ; that the
power to destroy may defeat and render useless the power to cre-
ate ; that there is a plain repugnance, in conferring on one gov-
ernment a power to control the constitutional measures of an-
other, which other, with respect to those very measures, is de-
clared to be supreme over that which exerts the control, are
propositions not to be denied. But all inconsistencies are to be
reconciled by the magic of the word confidence. Taxation, it is
216 CASES ON CONSTITUTIONAL LAW.
said, does not necessarily and unavoidably destroy. To carry
it to the excess of destruction would be an abuse, to presume
which, would banish that confidence which is essential to all
government.
But is this a case of confidence ? Would the people of any one
State trust those of another with a power to control the most
insignificant operations of their State government? We know
they would not. Why, then, should we suppose that the people
of any one State should be willing to trust those of another with
a power to control the operations of a government to which they
have confided their most important and most valuable interests?
In the legislature of the Union alone, are all represented. The
legislature of the Union alone, therefore, can be trusted by the
people with the power of controlling measures which concern all,
in the confidence that it will not be abused. This, then, is not a
case of confidence, and we must consider it as it really is.
If we apply the principle for which the State of Maryland
contends, to the constitution generally, we shall find it capable of
changing totally the character of that instrument. We shall find
it capable of arresting all the measures of the government, and
of prostrating it at the foot of the States. The American people
have declared their constitution, and the laws made in pursu-
ance thereof, to be supreme; but this principle would transfer
the supremacy, in fact, to the State.
If the States may tax one instrument, employed by the gov-
ernment in the execution of its powers, they may tax any and
every other instrument. They may tax the mail ; they may tax
the mint; they may tax patent rights; they may tax the papers
of the custom-house; they may tax judicial process; they may
tax all the means employed by the government, to an excess
which would defeat all the ends of government. This was not
intended by the American people. They did not design to make
their government dependent on the States.
Gentlemen say, they do not claim the right to extend State
taxation to these objects. They limit their pretensions to prop-
erty. But on what principle is this distraction made ? Those who
make it have furnished no reason for it, and the principle for
which they contend denies it. They contend that the power of
taxation has no other limit than is found in the 10th section of
the 1st article of the constitution; that, with respect to every-
thing else, the power of the States is supreme, and admits of no
control. If this be true, the distinction between property and
other subjects to which the power of taxation is applicable, is
Mcculloch v. state op Maryland. 217
merely arbitrary, and can never be sustained. This is not all.
If the controlling power of the States be established; if their
supremacy as to taxation be acknowledged; what is to restrain
their exercising this control in any shape they may please to give
it? Their sovereignty is not confined to taxation. That is not
the only mode in which it might be displayed. The question is,
in truth, a question of supremacy; and if the right of the States
to tax the means employed by the general government be con-
ceded, the declaration that the constitution, and the laws made ia
pursuance thereof, shall be the supreme law of the land, is empty
and unmeaning declamation.
In the course of the argument, the Federalist has been quoted ;
and the opinions expressed by the authors of that work have
been justly supposed to be entitled to great respect in expounding
the constitution. No tribute can be paid to them which exceeds
their merit; but in applying their opinions to the eases which
may arise in the progress of our government, a right to judge of
their correctness must be retained ; and, to understand the argu-
ment, we must examine the proposition it maintains, and the
objections against which it is directed. The subject of those
numbers, from which passages have been cited, is the unlimited
power of taxation which is vested in the general government.
The objection to this unlimited power, which the argument seeks
to remove, is stated with fulness and clearness. It is "that an
indefinite power of taxation in the latter (the government of the
Union) might, and probably would, in time, deprive the former
(the government of the States) of the means of providing for
their own necessities; and would subject them entirely to the
mercy of the national legislature. As the laws of the Union are
to become the supreme law of the land ; as it is to have power to
pass all laws that may be necessary for carrying into execution
the authorities with which it is proposed to vest it ; the national
government might at any time abolish the taxes imposed for
State objects, upon the pretense of an interference with its own.
It might allege a necessity for doing this, in order to give effi-
cacy to the national revenues; and thus all the resources of tax-
ation might, by degrees, become the subjects of federal monop-
oly, to the entire exclusion and destruction of the state govern-
ments. ' '
The objections to the constitution which are noticed in these
numbers, were to the undefined power of the government to tax,
not to the incidental privilege of exempting its own measures
from State taxation. The consequences apprehended from this
218 CASES ON CONSTITUTIONAL LAW.
undefined power were, that it would absorb all the objects of tax-
ation, "to the exclusion and destruction of the state govern-
ments. ' ' The arguments of the Federalist are intended to prove
the fallacy of these apprehensions ; not to prove that the govern-
ment was incapable of executing any of its powers, without ex-
posing the means it employed to the embarrassments of State tax-
ation. Arguments urged against these objections, and these ap-
prehensions, are to be understood as relating to the points they
mean to prove. Had the aluthors of those excellent essays been
asked, whether they contended for that construction of the con-
stitution, which would place within the reach of the States those
measures which the government might adopt for the execution of
its powers; no man, who has read their instructive pages, will
hesitate to admit, that their answer must have been in the nega-
tive.
It has also been insisted, that, as the power of taxation in the
general and state governments is acknowledged to be concurrent,
every argument which would sustain the right of the general
government to tax banks chartered by the States, will equally
sustain the right of the States to tax banks chartered by the
general government.
But the two eases are not on the same reason. The people of
all the States have created the general government, and have con-
ferred upon it the general power of taxation. The people of all
the States, and the States themselves, are represented in congress,
and, by their representatives, exercise this power. When they tax
the chartered institutions of the States, they tax their constitu-
ents ; and these taxes must be uniform. But when a State taxes
the operations of the government of the United States, it acts
upon institutions created, not by their own constituents, but by
people over whom they claim no control. It acts upon the meas-
ures of a government created by others as well as themselves, for
the benefit of others in common with themselves. The difference
is that which always exists, and always must exist, between the
action of the whole on a part, and the action of a part on the
whole ; between the laws of a government declared to be supreme,
and those of a government which, when in opposition to those
laws, is not supreme.
But if the full application of this argument could be admitted,
it might bring into question the right of congress to tax the
state banks, and could not prove the right of the States to tax
the Bank of the United States.
The court has bestowed on this subject its most deliberate con-
Mcculloch v. state of maeyland. 219
sideration. The result is a conviction that the States have no
power, by taxation or otherwise, to retard, impede, burden, or in
any manner control, the operations of the constitutional laws
enacted by congress to carry into execution the powers vested in
the general government. This is, we think, the unavoidable con-
sequence of that supremacy which the constitution has declared.
"We are unanimously of opinion, that the law passed by the
legislature of Maryland, imposing a tax on the Bank of the
United States, is unconstitutional and void.
This opinion does not deprive the States of any resources which
they originally possessed. It does not extend to a tax paid by
the real property of the bank, in common with the other real
property within the State, nor to a tax imposed on the interest
which the citizens of Maryland may hold in this institution, in
common with other property of the same description throughout
the State. But this is a tax on the operations of the bank, and
is, consequently, a tax on the operation of an instrument em-
ployed by the government of the Union to carry its powers into
execution. Such a tax must be unconstitutional.
Judgment. This cause came on to be heard on the transcript
of the record of the court of appeals of the State of Maryland,
and was argued by counsel. On consideration whereof, it is the
opinion of this court that the act of the legislature of Maryland
is contrary to the constitution of the United States, and void.
Note. — The power of the States to tax the Bank of the United States was
re-examined and the doctrine of the principal case was affirmed in Osborn
V. Bank of the United States (1824), 9 Wheaton, 738. The exemption of
Federal agencies from State taxation is subject to limitations some of which
are suggested in National Bank v. Commonwealth (1870), 9 Wallace, 353,
361:
It certainly cannot be maintained that banks or other corpora-
tions or instrumentalities of the government are to be wholly with-
drawn from the operation of State legislation. The most important
agents of the Federal government are its ofiScers, but no one wiU
contend that when a man becomes an officer of the government he
ceases to be subject to the laws of the State. The principle we
are discussing has its limitation, a limitation growing out of the
necessity on which the principle itself is founded. That limitation
is, that the agencies of the Federal government are only exempted
from State legislation, so far as that legislation may interfere with,
or impair their efficiency in performing the functions by which they
are designed to serve that government. Any other rule would con-
vert a principle founded alone in the necessity of securing to the
government of the United States the means of exercising its legiti-
220 CASES ON CONSTITUTIONAL LAW.
mate powers, into an unauthorized and unjustifiable invasion of the
rights of the States. The salary of a Federal officer may not be
taxed; he may be exempted from any personal service which inter-
feres with the discharge of his official duties, because those exemp-
tions are essential in order to enable him to perform those duties.
But he is subject to all the laws of the State which affect his family
or social relations, or his property, and he is liable to punishment
for crime, though that punishment be imprisonment or death. So
of the banks. They are subject to the laws of the State, and are
governed in their daily course of business far more by the laws of
the State than of the nation. All their contracts are governed and
construed by State laws. Their acquisition and transfer of property,
their right to collect their debts, and their liability to be sued for
debts, are all based on State law. It is only when the State law
incapacitates the banks from discharging their duties to the govern-
ment that it becomes unconstitutional.
See also Thompson v. Union Pacific Ey. (1870), 9 Wallace, 579; Union
Pacific Ey. v. Peniston (1873), 18 Wallace, 5; Owensboro National Bank v.
City of Owensboro (1899), 173 U. S. 664. As to 'the taxation of Federal
securities see Weston v. Charleston (1829), 2 Peters, 450; Van Allen v.
Assessors (1866), 3 Wallace, 573; Bank of Commerce v. New York City
(1862), 2 Blach. 620; The Banks v. The Mayor (1868), 7 WaUace, 16;
The Bank v. The Supervisors (1868), 7 Wallace, 26; Hibernia Savings and
Loan Society v. San Francisco (1906), 200 U. S. 310; Home Savings Bank
V. Des Moines (1907), 205 U. S. 503.
VEAZIE BANK v. FENNO.
Supreme Court of the United States. 1869.
8 WaUace, 533 ; 19 Lawyers ' Ed. 482.
On certificate of division for the Circuit Court of Maine.
The Chief Justice delivered the opinion of the court. . . .
The general question now before us is, whether or not the tax
of ten per cent., imposed on State banks or National banks pay-
ing out the notes of individuals or State banks used for circula-
tion, is repugnant to the Constitution of the United States.
In support of the position that the act of Congress, so far as it
provides for the levy and collection of this tax, is repugnant to
the Constitution, two propositions have been argued with much
force and earnestness.
The first is that the tax in question is a direct tax, and has not
been apportioned among the States agreeably to the Constitution.
The second is that' the act imposing the tax impairs a franchise
granted by the State, and that Congress has no power to pass any
law with that intent or effect.
The first of these propositions will be first examined. . . .
VEAZIE BANK v. FENNO. 221
Much diversity of opinion has always prevailed upon the ques-
tion, what are direct taxes ? Attempts to answer it by reference
to the definitions of political economists have been frequently
made, but without satisfactory results. The enumeration of the
different kinds of taxes which Congress was authorized to impose
was probably made with little reference to their speculations.
. . . We are obliged therefore to resort to historical evi-
dence, and to seek the meaning of the words in the use and in
the opinion of those whose relations to the government, and
means of knowledge, warranted them in speaking with author-
ity. And considered in this light, the meaning and application
of the rule, as to direct taxes, appears to us quite clear. It is,
as we think, distinctly shown in every act of Congress on the
subject.
In each of these acts, a gross sum was laid upon the United
States, and the total amount was apportioned to the several
States, according to their respective number of inhabitants, as
ascertained by the last preceding census. Having been appor-
tioned, provision was made for the imposition of the tax upon
the subjects specified in the act, fixing its total sum. ... In
each instance, the total sum was apportioned among the States,
by the constitutional rule, and was assessed at prescribed rates,
on the subjects of the tax. These subjects, in 1798, 1 Stat, at
Large, 586; 1813, 3 lb. 26; 1815, Id. 166; 1816, Id. 255, were
lands, improvements, dwelling-houses, and slaves; and in 1861,
lands, improvements, and dwelling-houses only. Under the act
of 1798, slaves were assessed at fifty cents on each; under the
other acts, according to valuation by assessors. This review shows
that personal property, contracts, occupations, and the like, have
never been regarded by Congress as proper subjects of direct tax.
[After a discussion of Hylton v. U. S. (1796), 3 Dallas, 171,
in which the validity of a Federal tax on carriages was involved,
the court continues:] *
It may be safely assumed, therefore, as the unanimous judg-
ment of the court, that a tax on carriages is not a direct tax. And
it may further be taken as established upon the testimony of Pat-
erson, that the words direct taxes, as used in the Constitution,
comprehended only capitation taxes, and taxes on land, and per-
haps taxes on personal property by general valuation and assess-
ment of the various descriptions possessed within the several
States.
222 CASES ON CONSTITUTIONAL LAW.
It follows necessarily that the power to tax without apportion-
ment extends to all other objects. Taxes on other objects are in-
cluded under the heads of taxes not direct, duties, imposts, and
excises, and must be laid and collected by the rule of uniformity.
The tax under consideration is a tax on bank circulation, and may
very well be classed under the head of duties. Certainly it is
not, in the sense of the Constitution, a direct tax. It may be said
to come within the same category of taxation as the tax on
incomes of insurance companies, which this court, at the last
term, in the case of Pacific Insurance Company v. Soule, 7 "Wal-
lace, 434, held not to be a direct tax.
Is it, then, a tax on a franchise granted by a State, which Con-
gress, upon any principle exempting the reserved powers of the
States from impairment by taxation, must be held to have no
authority to lay and collect ? "We do not say that there may not
be such a tax. It may be admitted that the reserved rights of
the States, such as the right to pass laws, to give effect to laws
through executive action, to administer justice through the
courts, and to employ all necessary agencies for legitimate pur-
poses of State government, are not proper subjects of the taxing
power of Congress. But it cannot be admitted that franchises
granted by a State are necessarily exempt from taxation ; for
franchises are property, often very valuable and productive prop-
erty ; and when not conferred for the purpose of giving effect to
some reserved power of a State, seem to be as properly objects of
taxation as any other property.
But in the case before us the object of taxation is not the fran-
chise of the bank, but property created, or contracts made and
issued under the franchise, or power to issue bank bills. A rail-
road company, in the exercise of its corporate franchises, issues
freight receipts, bills of lading, and passenger tickets ; and it can-
not be doubted that the organizaticm of railroads is quite as im-
portant to the State as the organization of banks. But it will
hardly be questioned that these contracts of the company are ob-
jects of taxation within the powers of L!ongress, and not exempted
by any relation to the State which granted the charter of the
railroad. And it seems difficult to distinguish the taxation of
notes issued for circulation from the taxation of these railroad
contracts. Both descriptions of contracts are means of profit to
the corporations which issue them; and both, as we think, may
properly be made contributory to the public revenue.
It is insisted, however, that the tax in the case before us is
excessive, and so execessive as to indicate a purpose on the part
VEAZIE BANK v. FENNO. 223
of Congress to destroy the franchise of the bank, and is, there-
fore, beyond the constitutional power of Congress.
The first answer to this is that the judicial cannot prescribe
to the legislative department of the government limitations upon
the exercise of its acknowledged powers. The power to tax may
be exercised oppressively upon persons, but the responsibility
of the legislature is not to the courts, but to the people by whom
its members are elected. So if a particular tax bears heavily upon
a corporation, or a class of corporations, it cannot, for that rea-
son only, be pronounced contrary to the Constitution.
But there is another answer which vindicates equally the wis-
dom and the power of Congress.
It cannot be doubted that under the Constitution the power to
provide a circulation of coin is given to Congress. And it is set-
tled by the uniform practice of the government and by repeated
decisions, that Congress may constitutionally authorize the emis-
sion of bills of credit. It is not important here, to decide whether
the quality of legal tender in payment of debts, can be constitu-
tionally imparted to these bills ; it is enough to say, that there can
be no question of the power of the government to emit them ; to
make them receivable in payment of debts to itself ; to fit them for
use by those who see fit to use them in all the transactions of com-
merce ; to provide for their redemption ; to make them a currency,
uniform in value and description, and convenient and useful for
circulation. These powers, until recently, were only partially and
occasionally exercised. Lately, however, they have been called
into full activity, and Congress has undertaken to supply a cur-
rency for the entire country.
The methods adopted for the supply of this currency were
briefly explained in the first part of this opinion. It now consists
of coin, of United States notes, and of the notes of the national
banks. Both descriptions of notes may be properly described as
bills of credit, for both are furnished by the government; both
are issued on the credit of the government ; and the government
is responsible for the redemption of both ; primarily as to the first
description, and immediately upon default of the bank, as to the
second. "When these bills shall be made convertible into coin, at
the will of the holder, this currency will, perhaps, satisfy the
wants of the community, in respect to a circulating medium, as
perfectly as any mixed currency that can be devised.
Having thus, in the exercise of undisputed constitutional pow-
ers, undertaken to provide a currency for the whole country, it
cannot be questioned that Congress may, constitutionally, secure
224 CASES ON CONSTITUTIONAL LAW.
the benefit of it to the people by appropriate legislation. To this
end, Congress has denied the quality of legal tender to foreign
coins, and has provided by law against the imposition of coun-
terfeit and base coin on the community. To the same end, Con-
gress may restrain, by suitable enactments, the circulation as
money of any notes not issued under its own authority. Without
this power, indeed, its attempts to secure a sound and uniform
currency for the country must be futile.
Viewed in this light, as well as in the other light of a duty on
contracts or property, we cannot doubt the constitutionality of
the tax under consideration. The three questions certified from
the Circuit Court of the District of Maine must, therefore, be an-
swered Affirmatively.
Mb. Justice Nelson, with whom concurred Mr. Justice Davis,
dissenting. . . .
THE COLLECTOR v. DAY.
Supreme Cotiet of the United States. 1870.
11 Wallace, 113; 20 Lawyers' Ed. 122.
Eeeor to t^e Circuit Court for the District of Massachusetts.
Mr. Justice Nelson delivered the opinion of the court.
The case presents the question whether or not it is competent
for Congress, under the Constitution of the United States, to im-
pose a tax upon the salary of a judicial officer of a State ?
In Dobbins v. The Commissioners of Erie County, 16 Peters,
435, it was decided that it was not competent for the legislature
of a State to levy a tax upon the salary or emoluments of an
ofiicer of the United States. The decision was placed mainly
upon the ground that the officer was a means or instrumentality
employed for carrying into effect some of the legitimate powers
of the government, which could not be interfered with by tax-
ation or otherwise by the States, and that the salary or compen-
sation for the service of the officer was inseparably connected with
the office; that if the officer, as such, was exempt, the salary as-
signed for his support or maintenance while holding the office
was also, for like reasons, equally exempt.
The cases of MeCulloch v. Maryland, 4 Wheaton, 316, and Wes-
ton V. Charleston, 2 Peters, 449, were referred to as settling the
THE COLLECTOR v. DAT. 225
principle that governed the ease, namely, "that the State gov-
ernments cannot lay a tax upon the constitutional means em-
ployed by the government of the Union to execute its constitu-
tional powers. "...
It is conceded in the case of McCuUoeh v. Maryland, that the
power of taxation by the States was not abridged by the grant
of a similar power to the government of the Union ; that it was
retained by the States, and that the power is to be concurrently
exercised by the two governments; and also that there is no ex-
press constitutional prohibition upon the States against taxing
the means or instrumentalities of the general government. But
it was held, and we agree properly held, to be prohibited by nec-
essary implication; otherwise, the States might impose taxation
to an extent that would impair, if not wholly defeat, the opera-
tions of the Federal authorities when acting in their appropriate
sphere.
These views, we think, abundantly establish the soundness of
the decision of the case of Dobbins v. The Commissioners of Erie,
which determined that the States were prohibited, upon a proper
construction of the Constitution, from taxing the salary or emolu-
ments of an ofSeer of the government of the United States. And
we shall now proceed to show that, upon the same construction of
that instrument, and for like reasons, that government is pro-
hibited from taxing the salary of the judicial officer of a State.
It is a familiar rule of construction of the Constitution of the
Union, that the sovereign powers vested in the State governments
by their respective constitutions remained unaltered and unim-
paired, except so far as they were granted to the government of
the United States. That the intention of the framers of the Con-
stitution in this respect might not be misunderstood, this rule of
interpretation is expressly declared in the tenth article of the
amendments, namely : ' ' The powers not delegated to the United
States are reserved to the States respectively, or, to the people. ' '
The government of the United States, therefore, can claim no
powers which are not granted to it by the Constitution, and the
powers actually granted must be such as are expressly given, or
given by necessary implication.
The general government, and the States, although both exist
within the same territorial limits, are separate and distinct sov-
ereignties, acting separately and independently of each other,
within their respective spheres. The former in its appropriate
sphere is supreme ; but the States within the limits of their pow-
ers not granted, or, in the language of the tenth amendment,
E. C. L.— 15
226 CASES ON CONSTITUTIONAL LAW.
"reserved," are as independent of the general government as
that government within its sphere is independent of the States.
The relations existing between the two governments are well
stated by the present Chief Justice in the ease of Lane County v.
Oregon, 7 Wallace, 76. "Both the States and the United States, ' '
he observed, "existed before the Constitution. The people,
through that instrument, established a more perfect union, by
substituting a National government, acting with ample powers
directly upon the citizens, instead of the Confederate govern-
ment, which acted with powers greatly restricted, only upon the
States. But, in many of the articles of the Constitution, the nec-
essary existence of the States, and within their proper spheres,
the independent authority of the States, are distinctly recognized.
To them nearly the^ whole charge of interior regulation is com-
mitted or left; to them, and to the people, all powers, not ex-
pressly delegated to the National government, are reserved."
Upon looking into the Constitution, it will be found that but few
of the articles in that instrument could be carried into practical
effect without the existence of the States.
Two of the great departments of the government, the executive
and legislative, depend upon the exercise of the powers, or upon
the people of the States. The Constitution guarantees to the
States a republican form of government, and protects each
against invasion or domestic violence. Such being the separate
and independent condition of the States in our complex system,
as recognized by the Constitution, and the existence of which is
so indispensable, that, without them, the general government it-
self would disappear from the family of nations, it would seem
to follow, as a reasonable, if not a necessary consequence, that the
means and instrumentalities employed for carrying on the opera-
tions of their governments, for preserving their existence, and
fulfilling the high and responsible duties assigned to them in
the Constitution, should be left free and unimpaired, should not
be liable to be crippled, much less defeated, by the taxing power
of another government, which power acknowledges no limits but
the will of the legislative body imposing the tax. And, more
especially, those means and instrumentalities which are the cre-
ation of their sovereign and reserved rights, one of which is the
establishment of the judicial department, and the appointment
of officers to administer their laws. Without this power, and the
exercise of it, we risk nothing in saying that no one of the States
under the form of government guaranteed by the Constitution
could long preserve its existence. A despotic government might.
THE COLLECTOR v. DAY. 227
We have said that one of the reserved powers was that to estab-
lish a judicial department; it would have been more accurate,
and in accordance with the existing state of things at the time,
to have said the power to maintain a judicial department. All
of the thirteen States were in the possession of this power, and
had exercised it at the adoption of the Constitution ; and it is not
pretended that any grant of it to the general government is
found in that instrument. It is, therefore, one of the sovereign
powers vested in the States by their constitutions, which re-
mained unaltered and unimpaired, and in respect to which the
State is as independent of the general government as that gov-
ernment is independent of the States.
The supremacy of the general government, therefore, so much
relied on in the argument of the counsel for the plaintiff in error,
in respect to the question before us, cannot be maintained. The
two governments are upon an equality, and the question is
whether the power ' ' to lay and collect taxes ' ' enables the general
government to tax the salary of a judicial officer of the State,
which officer is a means or instrumentality employed to carry
into execution one of its most important functions, the adminis-
tration of the laws, and which concerns the exercise of a right
reserved to the States ?
"We do not say the mere circumstance of the establishment of
the judicial department, and the appointment of officers to ad-
minister the laws, being among the reserved powers of the State,
disables the general government from levying the tax, as that
depends upon the express power ' ' to lay and collect taxes, ' ' but it
shows that it is an original inherent power never parted with,
and, in respect to which, the supremacy of that government does
not exist, and is of no importance in determining the question ;
and further, that being an original and reserved power, and the
judicial officers appointed under it being a means or instrumen-
tality employed to carry it into effect, the right and necessity of
its unimpaired exercise, and the exemption of the officer from
taxation by the general government stand upon as solid a ground,
and are maintained by principles and reasons as cogent, as those
which led to the exemption of the Federal officer in Dobbins v.
The Commissioners of Erie from taxation by the State; for, in
this respect, that is, in respect to the reserved powers, the State
is as sovereign and independent as the general government. And
if the means and instrumentalities employed by that government
to carry into operation the powers granted to it are, necessarily,
and, for the sake of self-preservation, exempt from taxation by
228 CASES ON CONSTITUTIONAL LAW.
the States, why are not those of the States depending upon their
reserved powers, for like reasons, equally exempt from Federal
taxation ? Their unimpaired existence in the one case is as essen-
tial as in the other. It is admitted that there is no express pro-
vision in the Constitution that prohibits the general government
from taxing the means and instrumentalities of the States, nor
is there any prohibiting the States from taxing the means and
instrumentalities of that government. In both cases the exemp-
tion rests upon necessary implication, and is upheld by the great
law of self-preservation; as any government, whose means em-
ployed in conducting its operations, if subject to the control of
another and distinct government, can exist only at the mercy of
that government. Of what avail are these means if another
power may tax them at discretion?
But we are referred to the Veazie Bank v. Fenno, 8 "Wallace,
533, in support of this power of taxation. That case furnishes a
strong illustration of the position taken by the Chief Justice in
McCulloch V. Maryland, namely, "That the power to tax involves
the power to destroy."
The power involved was one which had been exercised by the
States since the foundation of the government, and had been,
after the lapse of three-quarters of a century, annihilated from
excessive taxation by the general government, just as the judi-
cial office in the present ease might be, if subject at all to taxation
by that government. But, notwithstanding the sanction of this
taxation by a majority of the court, it is conceded, in the opin-
ion, that "the reserved rights of the States, such as the right to
pass laws ; to give effect to laws through executive action ; to ad-
minister justice through the courts, and to employ all necessary
agencies for legitimate purposes of State government, are not
proper subjects of the taxing power of Congress." This con-
cession covers the case before us, and adds the authority of this
court in support of the doctrine which we have endeavored to
maintain.
Judgment affirmed.
Me. Justice Beadley dissenting. . . .
Note. — On a similar state of facts the High Court of Australia reached
the same result. See D'Emden v. Pedder (1904), 1 Commonwealth Law
Reports, 91, and Baxter v. Commissioners of Taxation (1907), 4 Common-
wealth Law Reports, part II, 1087.
SOUTH CAROLINA v. UNITED STATES. 229
SOUTH CAROLINA v. UNITED STATES.
Stjpeeme Coxjrt of the United States. 1905.
199 U. S. 437 J 50 Lawyers' Ed. 261.
Appeal from the Court of Claims.
By several statutes, the State of South Carolina established dis-
pensaries for the wholesale and retail sale of liquor, and pro-
hibited sale by other than the dispensers. The United States
demanded the license taxes prescribed by the internal revenue
act for dealers in intoxicating liquors, and the dispensers filed the
statutory applications for such licenses. The State, sometimes
in cash and sometimes by warrant on its treasury, paid the taxes.
No protest was made in reference to these payments prior to April
14, 1901. On that day a formal protest by the state dispensary
commissioner was filed with the United States collector of internal
revenue at Columbia, South Carolina. . . .
The dispensers had no interest in the sales, and received no
profit therefrom. The entire profits were appropriated by the
State. ... In the year 1901 the profits arising from these
sales amounted to $545,248.12. While the laws of South Carolina
prohibited the sale of liquor by individuals other than the dis-
pensers, of 373 special license stamps issued in that State by the
United States internal revenue collector, only 112 were to dis-
pensers, while 260 were to private individuals. Three separate
actions were commenced in the Court of Claims by the State of
South Carolina to recover the amounts paid for these license taxes.
These actions were consolidated. Upon a hearing, findings of fact
were made a,nd a judgment entered for the United States. 39
Court of Claims Reports, 257. "Whereupon the State appealed
to this court.
Mb. Justice Brewer, . . . delivered the opinion of the
court :
The important question in this case is, whether persons who are
selling liquor are relieved from liability for the internal revenue
tax by the fact that they have no interest in the profits of the busi-
ness, and are simply the agents of a State which, in the exercise
of its sovereign power, has taken charge of the business of selling
intoxicating liquors. . . .
The right of South Carolina to control the sale of liquor by the
dispensary system has been sustained. Vance v. W. A. Vander-
cook Co., No. 1, 170 U. S. 438. The profits from the business in
the year 1901, as appears from the findings of fact, were over half
a million of dollars. Mingling the thought of profit with the
230 CASES ON CONSTITUTIONAL LAW.
necessity of regulation may induce the State to take possession,
in like manner, of tobacco, oleomargarine, and all other objects
of internal revenue tax. If one State finds it thus profitable,
other States may follow, and the whole body of internal revenue
tax be thus stricken down.
More than this. There is a large and growing movement in the
country in favor of the acquisition and management by the public
of what are termed "public utilities, " including not merely there-
in the supply bf gas and water, but also the entire railroad
system. Would the State, by taking' into possession these public
utilities, lose its republican form of government ?
We may go even a step further. There are some insisting that
the State shall become the owner of all property and the manager
of all business. Of course, this is an extreme view, but its advo-
cates are earnestly contending that thereby the best interests of
all citizens will be subserved. If this change should be made in
any State, how much would that State contribute to the revenue
of the nation ? If this extreme action is not to be counted among
the probabilities, consider the result of one much less so. Suppose
a State assumes, under its police power, the control of all those
matters subject to the internal revenue tax, and also engages in
the business of importing all foreign goods. The same argument
which would exempt the sale by a State of liquor, tobacco, etc.,
from a license tax, would exempt the importation of merchandise
by a State from import duty. While the State might not prohibit
importations, as it can the sale of liquor, by private individuals,
yet, paying no import duty, it could undersell all individuals,
and so monopolize the importation and sale of foreign goods.
Obviously, if the power of the State is carried to the extent sug-
gested, and at the same time relieved from all Federal taxation,
the National Government would be largely crippled in its rev-
enues. Indeed, if all the States should concur in exercising their
powers to the full extent, it would be almost impossible for the
Nation to collect any revenues. In other words, in this indirect
way it would be within the competency of the States to practically
destroy the efiiciency of the National Government. If it be said
that the States can be trusted not to resort to any such extreme
measures, because of the resulting interference with the efficiency
of the National Government, we may turn to the opinion of Mr.
Chief Justice Marshall in M'CuUoch v. Maryland, 4 Wheat.
431, for a complete answer:
' ' But is this a case of confidence ? Would the people of any one
State trust those of another with a power to control the most in-
.SOUTH CAROLINA v. UNITED STATES. 231
significant operations of their state government? "We know they
would not. Why, then, should we suppose that the people of any
one State should be willing to trust those of another with the power
to control the operations of a government to which they have con-
fided their most important and most valuable interests? In the
legislature of the Union alone are all represented. The legis-
lature of the Union alone, therefore, can be trusted by the people
with the power of controlling measures which concern all, in the
confidence that it will not be abused. ' '
In other words, we are to find in the Constitution itself the full
protection to the Nation, and not to rest its sufficiency on either
the generosity or the neglect of any State.
There is something of a conflict between the full power of the
Nation in respect to taxation and the exemption of the State
from Federal taxation in respect to its property and a discharge
of all its functions. Where and how shall the line between them
be drawn ? We have seen that the full power of collecting license
taxes is in terms granted to the National Government, with
only the limitations of uniformity and the public benefit. The
exemption of the State's property and its functions from Fed-
eral taxation is implied from the dual character of our Federal
system and the necessity of preserving the State in all its effi-
ciency. In order to determine to what extent that implication
will go we must turn to the condition of things at the time the
Constitution was framed. What, in the light of that condition,
did the framers of the convention intend should be exempt?
Certain it is that modem notions as to the extent to which the
functions of a State may be carried had then no hold. Whatever
Utopian theories may have been presented by any writers were
regarded as mere creations of fancy, and had no practical recog-
nition. It is true that monopolies in respect to certain commodi-
ties were known to have been granted by absolute monarchs, but
they were not regarded as consistent with Anglo-Saxon ideas of
government. The opposition to the Constitution came not from
any apprehension of danger from the extent of power reserved
to the States, but, on the other hand, entirely through fear of
what might result from the exercise of the powers granted to the
central government. While many believed that the liberty of
the people depended on the preservation of the rights of the
States, they had no thought that those States would extend their
functions beyond their then recognized scope, or so as to imperil
the life of the nation. As well said by Chief Justice Nott, de-
232 CASES ON CONSTITUTIONAL LAW.
livering the opinion of the Court of Claims in this case (39 C.
CI. 284) :
"Moreover, at the time of the adoption of the Constitution,
there probably was not one person in the country who seriously
contemplated the possibility of government, whether State or
National, ever descending from its primitive plane of a body
politic to take up the work of the individual or body corporate.
The public suspicion associated government with patents of no-
bility, with an established church, with standing armies, and dis-
trusted all governments. Even in the high intelligence of the
convention, there were men who trembled at the power given to
the President, who trembled at the power'whieh the Senate might
usurp, who feared that the life tenure of the judiciary might
imperil the liberties of the people. Certain it is that if the pos-
sibility of a government usurping the ordinary business of indi-
viduals, driving them out of the market, and maintaining place
and power by means of what would have been called, in the
heated invective of the time, 'a legion of mercenaries,' had been
in the public mind, the Constitution would not have been adopted,
or an inhibition of such power would have been placed among
Madison's amendments."
Looking, therefore, at the Constitution in the light of the con-
ditions surrounding it at the time of its adoption, it is obvious
that the framers, in granting full power over license taxes to
the National Government, meant that the power should be com-
plete, and never thought that the States, by extending their func-
tions, could practically destroy it.
If we look upon the Constitution in the light of the common
law, we are led to the same conclusion. All the avenues of trade
were open to the individual. The Government did not attempt
to exclude him from any. Whatever restraints were put upon
him were mere police regulations to control his conduct in the
business, and not to exclude him therefrom. The Government
was no competitor, nor did it assume to carry on any business
which ordinarily is carried on by individuals. Indeed, every
attempt at monopoly was odious in the eyes of the common law,
and it mattered not how that monopoly arose, whether from grant
of the sovereign or otherwise. The framers of the Constitution
were not anticipating that a State would attempt to monopolize
any business heretofore carried on by individuals.
Further, it may be noticed that the tax is not imposed on any
property belonging to the State, but is a charge on a business
before any profits are realized therefrom. In this it is not unlike
SOUTH CAROLINA v. UNITED STATES. 233
the taxes sustained in United States v. Perkins, 163 U. S. 625,
and Snyder v. Bettman, 190 U. S. 249. . . .
It is also worthy of remark that the cases in which the invalid-
ity of a Federal tax has been affirmed were those in which the tax
was attempted to be levied upon property belonging to the State,
or one of its municipalities, or was a charge upon the means and
instrumentalities employed by the State, in the discharge of its
ordinary functions as a government. . . . [The court here
considers Veazie Bank v. Fenno, 8 Wall. 533, The Collector v.
Day, 11 "Wall. 113, United States v. Railroad Co., 17 Wall. 322,
and Ambrosini v. United States, 187 U. S. 1.]
These decisions, while not controlling the question before us,
indicate that the thought has been that the exemption of state
agencies and instrumentalities from National taxation is limited
to those which are of a strictly governmental character, and does
not extend to those which are used by the State in the carrying
on of an ordinary private business.
In this connection may be noticed the well-established distinc-
tion between the duties of a public character cast upon munici-
pal corporations, and those which relate to what may be consid-
ered their private business, and the different responsibility re-
sulting in case of negligence in respect to the discharge of those
duties. The Supreme Court of Massachusetts, speaking by
Mr. Justice Gray (afterwards an Associate Justice of this
court), in Oliver v. Worcester, 102 Mass. 489, 499, 500, observed:
"The distinction is well established between the responsibili-
ties of towns and cities for acts done in their public capacity,
in the discharge of duties imposed upon them by the legisla-
ture for the phblic benefit, and for acts done in what may be
called their private character, in the management of property
or rights voluntarily held by them for their own immediate profit
or advantage as a corporation, although inuring, of course, ulti-
mately to the benefit of the public.
' ' To render municipal corporations liable to private actions for
omission or neglect to perform a corporate duty imposed by gen-
eral law on all towns and cities alike, and from the performance
of which they derive no compensation or benefit in their corpo-
rate capacity, an express statute is doubtless necessary. . . ."
' ' But this rule does not exempt towns and cities from the liability
to which other corporations are subject, for negligence in man-
aging or dealing with property or rights held by them for their
own advantage or emolument." . . . [See also Lloyd v. New
York, 5 N. Y. 369; Maxmilian v. New York, 62 N. Y. 160, 164;
234 CASES ON CONSTITUTIONAL LAW.
Brown v. VinaUiaven, 65 Me. 402 ; Mead v. New Haven, 40 Conn.
72 ; Petersburg v. Applegarth, 28 Gratt. 321, 343 ; Eastman v.
Meredith, 36 N. H. 285 ; Western Saving Fund Society v. Phila-
delphia, 31 Pa. St. 175 ; Bailey v. The Mayor, 3 Hill, 531 ; 1 Dil-
lon, Mun. Corp., 4th ed., sec. 66.]
Now, if it be well established, as these authorities say, that
there is a clear distinction as respects responsibility for negli-
gence between the powers granted to a corporation for govern-
mental purposes and those in aid of private business, a like dis-
tinction may be recognized when we are asked to limit the full
power of imposing excises granted to the National Government by
an implied inability to impede or embarrass a State in the dis-
charge of its functions. It is reasonable to hold that, while the
former may do nothing by taxation in any form to prevent the
full discharge by the latter of its governmental functions, yet,
whenever a State engages in a business which is of a private
nature, that business is not withdrawn from the taxing power of
the Nation.
For these reasons we think that the license taxes charged by the
Federal Government upon persons selling liquor are not invali-
dated by the fact that they are the agents of the State, which has
itself engaged in that business.
The judgment of the Court of Claims is Affirmed.
Me. Justice White, with whom concur Mr. Justice Peckham
and Mb. Justice McKenna, dissenting. . . .
Section 3. Direct Taxes.
No capitation or other direct tax shall be laid, unless in propor-
tion to the census or enumeration hereinbefore directed to be taken.
Constitution of the United States, Art. I, ^ 9.
The Congress shall have power to lay and collect taxes on
incomes, from whatever source derived, without apportionment
among the several States, and without regard to any census or
enumeration.
Constitution of the United States, Amendment XVI.
HYLTON V. THE UNITED STATES.
Supreme Court or the United States. 1796.
3 Dallas, 171; 1 Lawyers' Ed. 556.
Writ of error to the Circuit Court of the United States for
the District of Virginia.^
1 Prior to the appointment of Marshall as Chief Justice, it was customary
for all the members of the Supreme Court to render opinions in aU case* of
HYLTON v. united states. 23S
[The question involved was the constitutionality of the act
of Congress of June 5, 1794, 1 U. S. Stat, at Large, 373, entitled
"An Act to lay duties upon carriages for the conveyance of
persons."]
Paterson, J. . . . "What are direct taxes within the mean-
ing of the constitution ? The constitution declares that a capita-
tion tax is a direct tax ; and both in theory and practice, a tax
on land is deemed to be a direct tax. In this way, the terms direct
taxes, and capitation and other direct tax, are satisfied. It is
not necessary to determine, whether a tax on the product of
land be a direct or indirect tax. Perhaps the immediate product
of land, in its original and crude state, ought to be considered
as the land itself ; it makes part of it, or else the provision made
against taxing exports would be easily eluded. Land, inde-
pendently of its produce, is of no value. "When the produce is
converted into a manufacture it assumes a new shape ; its nature
is altered, its original state is changed, it becomes quite another
subject, and it will be differently considered. Whether direct
taxes, in the sense of the constitution, comprehend any other tax
than a capitation tax, and tax on land, is a questionable point.
If congress, for instance, should tax, in the aggregate or mass,
things that generally pervade all the States in the Union, then
perhaps the rule of apportionment would be the most proper,
especially if an assessment was to intervene. This appears, by
the practice of some of the States, to have been considered as a
direct tax. "Whether it be so under the constitution of the
United States is a matter of some difSeulty; but as it is not
before the court, it would be improper to give any decisive
opinion upon it. I never entertained a doubt that the principal,
I will not say the only objects, that the framers of the constitu-
tion contemplated as falling within the rule of apportionment,
were a capitation tax and a tax on land. Local considerations,
and the particular circumstances and relative situation of the
States, naturally led to this view of the subject. The provision
was made in favor of the southern States. They possessed a
large number of slaves; they had extensive tracts of territory,
importance. In the present case Mr. Chief Justice Ellsworth and Mr.
Justice Gushing did not render opinions because they had been but recently,
appointed and had not heard the arguments, and Mr. Justice Wilson rendered
no opinion because he had heard the case in the Circuit Court. The opinion
of Mr. Justice Chase is omitted since the same ground is covered in thia
other two opinions.
236 CASES ON CONSTITUTIONAL LAW.
thinly settled and not very productive. A majority of the
States had but few slaves, and several of them a limited terri-
tory, well settled, and in a high state of cultivation. The South-
ern States, if no provision had been introduced in the constitu-
tion, would have been wholly at the mercy of the other States.
Congress in such case might tax slaves, at discretion or arbitra-
rily, and land in every part of the Union after the same rate or
measure ; so much a head in the first instance, and so much an
acre in the second. To guard them against imposition, in these
particulars, was the reason of introducing the clause in the con-
stitution which directs that representatives and direct taxes
shall be apportioned among the States according to their respec-
tive numbers. . . .
All taxes on expense or consumption are indirect taxes. A
tax on carriages is of this kind, and of course is not a direct tax.
Indirect taxes are circuitous modes of reaching the revenue of
individuals, who generally live according to their income. In
many cases of this nature the individual may be said to tax
himself. . . .
I am, therefore, of opinion that the judgment rendered in the
circuit court of Virginia ought to be afBrmed.
Iredell, J. I agree in opinion with my brothers, who have
already expressed theirs, that the tax in question is agreeable
to the constitution ; and the reasons which have satisfied me can
be delivered in a very few words, since I think the constitution
itself affords a clear guide to decide the controversy.
The congress possess the power of taxing all taxable objects,
without limitation, with the particular exception of a duty on
exports.
There are two restrictions only on the exercise of this author-
ity-
1. "All direct taxes must be apportioned.
2. All duties, imposts and excises must be uniform.
If the carriage tax be a direct tax, within the meaning of the
constitution, it must be apportioned. If it be a duty, impost, or
excise, within the meaning of the constitution, it must be uni-
form.
If it can be considered as a tax, neither direct within the
.meaning of the constitution, nor comprehended within the term
duty, impost, or excise ; there is no provision in the constitution,
one way or another, and then it must be left to such an operation
of the power, as if the authority to lay taxes had been given
HYLTON V. UNITED STATES. 237
generally in all instances, without saying whether they should
be apportioned or uniform; and in that case, I should presume
the tax ought to be uniform; because the present constitution
was particularly intended to affect individuals, and not States,
except in particular cases specified ; and this is the leading dis-
tinction between the articles of confederation and the present
constitution.
As all direct taxes must be apportioned, it is evident that the
constitution contemplated none as direct but such as could be
apportioned.
If this cannot be apportioned, it is, therefore, not a direct tax
in the sense of the constitution.
That this tax cannot be apportioned is evident. Suppose ten
dollars contemplated as a tax on each chariot, or post chaise, in
the United States, and the number of both in all the United
States be computed at one hundred and five, the number of
representatives in congress, — ^this would produce in the whole
one thousand and fifty dollars; the share of Virginia, being
19-105 parts, would be one hundred and ninety dollars; the
share of Connecticut, being 7-105 parts, would be seventy dol-
lars ; then suppose Virginia had fifty carriages, Connecticut two,
the share of Virginia being one hundred and ninety dollars, this
must of course be collected from the owners of carriages, and
there would therefore be collected from each carriage three dol-
lars and eighty cents; the share of Connecticut being seventy
dollars, each carriage would pay thirty-five dollars.
If any State had no carriages, there could be no apportion-
ment at all. This mode is too manifestly absurd to be supported,
and has not even been attempted in debate. . . .^
There is no necessity or propriety in determining what is, or
is not a direct or indirect tax in all eases.
Some difficulties may occur which we do not at present fore-
see. Perhaps a direct tax, in the sense of the constitution, can
mean nothing but a tax on something inseparably annexed to
1 On this point Mr. Justice Chase said, ' ' The constitution evidently
contemplated no taxes as direct taxes, but only such as congress could lay
in proportion to the census. The rule of apportionment is only to be adopted
in such cases where it can reasonably apply; and the subject taxed must
ever determine the application of the rule. If it is proposed to tax any
specific article by the rule of apportionment, and it would certainly create
great inequality and injustice, it is unreasonable to say that the constitu-
tion intended such tax should be laid by that rule. ' ' 3 Dallas, 174.
238 CASES ON CONSTITUTIONAL LAW.
the soil, something capable of apportionment under all such
circumstances.
A land or a poll tax may be considered of this description.
The latter is to be considered so particularly under the present
constitution, on account of the slaves in the southern States, who
give a ratio in the representation in the proportion of three to
five.
Either of these is capable of apportionment. In regard to
other articles, there may possibly be considerable doubt.
It is sufficient, on the present occasion, for the court to be
satisfied that this is not a direct tax contemplated by the con-
stitution, in order to affirm the present judgment; since, if it
cannot be apportioned, it must necessarily be uniform.
I am clearly of opinion this is not a direct tax in the sense of
the constitution, and, therefore, that the judgment ought to be
affirmed. . . .
By The Court. Let the judgment of the circuit court be
affirmed.
POLLOCK V. FARMERS' LOAN AND TRUST COMPANY.
(Rehearing.)
HYDE V. CONTINENTAL TRUST COMPANY. (Rehearing.)
Supreme CotrET op the United States. 1895.
158 U. S. 601; 39 Lawyers' Ed. 1108.
Appeal from the Circuit Court of the United States for the
Southern District of New York.
[This was a bill filed by Charles Pollock, a citizen of the State
of Massachusetts, on behalf of himself and all other stock-holders
of the defendant company similarly situated, against the Farm-
ers' Loan and Trust Co., a corporation of the State of New
York. The bill alleged that the defendant claimed authority
under the provisions of the act of Congress of August 15, 1894,
to pay to the United States a tax of two per centum on the net
profits of said company, including the income derived from
real estate and bonds of the City of New York owned by it. The
bill further alleged that such a tax was unconstitutional, null,
and void, in that it was a direct tax with respect to the income
from real estate, and in that the income from stocks and bonds
of the States of the United States and counties and municipali-
ties therein is not subject to the taxing power of Congress. The
POLLOCK V. FARMERS' L. AND T. CO. 239
bill prayed that the provisions known as the income tax incor-
porated in the act of Congress of August 15, 1894, might be
adjudged unconstitutional, null, and void, and that the defend-
ants might be restrained from voluntarily complying with such
provisions. On April 8, 1895, the Court, one justice being absent,
decided :
"A tax on the rents or income of real estate is a direct tax,
within the meaning of that term as used in the Constitution of
the United States.
"A tax upon incomes derived from the interest of bonds issued
by a municipal corporation is a tax upon the power of the State
and its instrumentalities to borrow money, and is consequently
repugnant to the Constitution of the United States.
"Upon each of the other questions argued at bar, to wit:
1. "Whether the void provision as to rent and income from real
estate invalidates the whole act? 2. Whether as to the income
from personal property as such, the act is unconstitutional, as
laying direct taxes? 3. "Whether any part of the tax, if not
considered as a direct tax, is invalid for want of uniformity on
either of the grounds suggested? — The Justices who heard the
argument are equally divided, and, therefore, no opinion is ex-
pressed." (157 U. S., 429.)
Inasmuch as the cases had not been heard by a full court, and
since the question upon which the court was equally divided still
lacked authoritative determination, the appellants were granted
a rehearing.]
Mr. Chief Justice Fullee delivered the opinion of the
court. . . .
Our previous decision was confined to the consideration of
the validity of the tax on the income from real estate, and on the
income from municipal bonds. The question thus limited was
whether such taxation was direct or not, in the meaning of the
Constitution ; and the court went no farther, as to the tax on the
incomes from real estate, than to hold that it fell within the same
class as the source whence the income was derived, that is, that a
tax upon the realty and a tax upon the receipts therefrom were
alike direct; while as to the in(jome from municipal bonds, that
could not be taxed because of want of power to tax the source,
and no reference was made to the nature of the tax being direct
or indirect.
"We are now permitted to broaden the field of inquiry, and
determine to which of the two great classes a tax upon a per-
240 CASES ON CONSTITUTIONAL LAW.
son's entire income, whether derived from rents, or products, or
otherwise, of real estate, or from bonds, stocks or other forms of
personal property, belongs ; and we are unable to conclude that
the enforced subtraction from the yield of all the owner's real
or personal property, in the manner prescribed, is so different
from a tax upon the property itself, that it is not a direct, but an
indirect tax, in the meaning of the Constitution. . . .
Whatever the speculative views of political economists or reve-
nue reformers may be, can it be properly held that the Constitu-
tion, taken in its plain and obvious sense, and with due regard to
the circumstances attending the formation of the government,
authorizes a general unapportioned tax on the products of the
farm and the rents of real estate, although imposed merely
because of ownership and with no possible means of escape from
payment, as belonging to a totally different eleiss from that which
includes the property from whence the income proceeds?
There can be only one answer, unless the constitutional restric-
tion is to be treated as utterly illusory and futile, and the object
of its framers defeated. We find it impossible to hold that a
fundamental requisition, deemed so important as to be enforced
by two provisions, one afBrmative and one negative, can be
refined away by forced distinctions between that which gives
value to property, and the property itself.
Nor can we conceive any ground why the same reasoning does
not apply to capital in personalty held for the purpose of income
or ordinarily yielding income, and to the income therefrom.
All the real estate of the country, and all its invested personal
property, are open to the direct operation of the taxing power if
an apportionment be made according to the Constitution. The
Constitution does not say that no direct tax shall be laid by
apportionment on any other property than land; on the con-
trary, it forbids all unapportioned direct taxes; and we know
of no warrant for excepting personal property from the exercise
of the power, or any reason why an apportioned direct tax can-
not be laid and assessed, as Mr. Gallatin said in his report when
Secretary of the Treasury in 1812, "upon the same objects of
taxation on which the direct taxes levied under the authority of
the State are laid and assessed." . . .
Nor are we impressed with the contention that, because in the
four instances in which the power of direct taxation has been
exercised. Congress did not see fit, for reasons of expediency, to
levy a tax upon personalty, this amounts to such a practical
construction of the Constitution that the power did not exist.
POLLOCK V. FARMERS' L. AND T. CO. 241
that we must regard ourselves bound by it. "We should regret
to be compelled to hold the powers of the general government
thus restricted, and certainly cannot accede to the idea that the
Constitution has become weakened by a particular course of
inaction under it.
The stress of the argument is thrown, however, on the asser-
tion that an income tax is not a property tax at all ; that it is not
a real estate tax, nor a crop tax, nor a bond tax; that it is an
assessment upon the taxpayer on account of his money-spending
power as shown by his revenue for the year preceding the assess-
ment; that rents received, crops harvested, interest collected,
have lost all connection with their origin, and although once not
taxable have become transmuted in their new form into taxable
subject-matter; in other words, that income is taxable irrespec-
tive of the source whence it is derived.
This was the view entertained by Mr. Pitt, as expressed in his
celebrated speech on introducing his income-tax law of 1799,
and he did not hesitate to carry it to its logical conclusion. The
English loan acts provided that the public dividends should be
paid "free of all taxes and charges whatsoever;" but Mr. Pitt
successfully contended that the dividends for the purposes of
the income tax were to be considered simply in relation to the
recipient as so much income, and that the holder had no reason
to complain. And this, said Mr. Gladstone, fifty -five years after,
was the rational construction of the pledge. Financial State-
ments, 32. . . .
We have unanimously held in this case that, so far as this law
operates on the receipts from municipal bonds, it cannot be sus-
tained, because it is a tax on the power of the States, and on their
instrumentalities to borrow money, and consequently repugnant
to the Constitution. But if, as contended, the interest when re-
ceived has become merely money in the recipient's pocket, and
taxable as such without reference to the source from which it
came, the question is immaterial whether it should have been
originally taxed at all or not. This was admitted by the Attorney
General with characteristic candor; and it follows that, if the
revenue derived from municipal bonds cannot be taxed because
the source cannot be, the same rule applies to revenue from any
other source not subject to the tax; and the lack of power to
levy any but an apportioned tax on real estate and personal
property equally exists as to the revenue therefrom.
Admitting that this act taxes the income of property irre-
spective of its source, still we cannot doubt that such a tax is
E. C. L.— 16
242 CASES ON CONSTITUTIONAL LAW.
necessarily a direct tax in the meaning of the Constitution.
Being direct, and therefore to be laid by apportionment, is
there any real difficulty in doing so? Cannot Congress, if the
necessity exist of raising thirty, forty, or any other number of
million dollars for the support of the government, in addition to
the revenue from duties, imposts, and excises, apportion the
quota of each State upon the basis of the census, and thus advise
it of the payment which must be made, and proceed to assess that
amount on all the real or personal property and the income of
all persons in the State, and collect the same if the State does
not in the meantime assume and pay its quota and collect the
amount according to its own system and in its own way ? Cannot
Congress do this, as respects either or all these subjects of taxa-
tion, and deal with each in such manner as might be deemed
expedient, as indeed was done in the act of July 14, 1798, e. 75,
1 Stat., 597? Inconveniences might possibly attend the levy
of an income tax, notwithstanding the listing of receipts, when
adjusted, furnishes its own valuation ; but that it is apportionable
is hardly denied, although it is asserted that it would operate so
unequally as to be undesirable. . . .
We have considered the act only in respect of the tax on income
derived from real estate, and from invested personal_property,
and have not commented on so much of it as bears on gains or
profits from business, privileges, or employments, in view of the
instances in which taxation on business, privileges, or employ-
ments has assumed the guise of an excise tax and been sustained
as such.
Being of opinion that so much of the sections of this law as
lays a tax on income from real and personal property is invalid,
we are brought to the question of the effect of that conclusion
upon these sections as a whole.
It is elementary that the same statute may be in part constitu-
tional and in part unconstitutional, and if the parts are wholly
independent of each other, that which is constitutional may stand
while that which is unconstitutional will be rejected. And in the
case before us there is no question as to the validity of this act,
except sections twenty-seven to thirty-seven, inclusive, which
relate to the subject which has been under discussion ; and as to
them we think that the rule laid down by Chief Justice Shaw in
Warren v. Charlestown, 2 Gray, 84, is applicable, that if the dif-
ferent parts "are so mutually connected with and dependent on
each other, as conditions, considerations ,or compensations for
POLLOCK V. FARMERS' L. AND T. CO. 243
each other, as to warrant the belief that the legislature intended
them as a whole, and that, if all could not be carried into effect,
the legislature would not pass the residue independently, and
some parts are unconstitutional, all the provisions which are thus
dependent, conditional or connected, must fall with them."
[The court also cited Poindexter v. Greenhow, 114 U. S. 270,
304, and Spraigue v. Thompson, 118 U. S. 90, 95.]
According to the census, the true valuation of real and per-
sonal property in the United States in 1890 was $65,037,091,197,
of which real estate with improvements thereon made up $39,-
544,544,333. Of course, from the latter must be deducted, in
applying these sections, all unproductive property and all prop-
erty whose net yield does not exceed four thousand dollars ; but,
even with such deductions, it is evident that the income from
realty formed a vital part of the scheme for taxation embodied
therein. If that be stricken out, and also the income from all
invested personal property, bonds, stocks, investments of all
kinds, it is obvious that by far the largest part of the anticipated
revenue would be eliminated, and this would leave the burden of
the tax to be borne by professions, trades, employments, or voca-
tions; and in that way what was intended as a tax on capital
would remain in substance a tax on occupations and labor. We
cannot believe that such was the intention of Congress. We do
not mean to say that such an act laying by apportionment a
direct tax on all real estate and personal property, or the income
thereof, might not also lay excise taxes on business, privileges,
employments, and vocations. But this is not such an act; and
the scheme must be considered as a whole. Being invalid as to
the greater part, and falling, as the tax would, if any part were
held valid, in a direction which could not have been contemplated
except in connection with the taxation considered as an entirety,
we are constrained to conclude that sections twenty-seven to
thirty-seven, inclusive, of the act, which became a law without
the signature of the President on August 28, 1894, are wholly
inoperative and void.
Our conclusions may, therefore, be summed up as follows :
First. We adhere to the opinion already announced, that,
taxes on real estate being indisputably direct taxes, taxes on the
rents or incomes of real estate are equally direct taxes.
Second. We are of opinion that taxes on personal property,
or on the income of personal property, are likewise direct taxes.
Third. The tax imposed by sections twenty-seven to thirty-
244 CASES ON CONSTITUTIONAL LAW.
seven, inclusive, of the act of 1894, so far as it falls on the income
of real estate and of personal property, being a direct tax within
the meaning of the Constitution, and, therefore, unconstitutional
and void because not apportioned according to representation,
all those sections, constituting one entire scheme of taxation, are
necessarily invalid.
The decrees hereimbefore entered m this court will he vacated;
the decrees below will be reversed, and the cases remanded, with
instructions to grant the relief prayed.
[Mr. Justice Harlan, Mr. Justice Brow^n, Mr. Justice
Jackson, and Mr. Justice "White delivered dissenting opinions.]
CHAPTEE VII.
THE REGULATION OP COMMERCE.
The Congress shall have power. . .
To regulate commerce with foreign nations, among the several
States, and with the Indian tribes.
Constitution of the United States, Art. I, sec. 8.
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.
Constitution of the United States, Art. I, sec. 9.
Section 1. What is Commerce.
GIBBONS V. OGDBN.
Supreme Court op the United States. 1824.
9 Wheaton, 1; 6 Lawyers' Ed. 23.
Error to the court for the trial of impeachments and correc-
tion of errors of the State of New York. Aaron Ogden filed his
bill in the court of chancery of that State, against Thomas Gib-
bons, setting forth the several acts of the legislature thereof,
enacted for the purpose of securing to Robert R. Livingston and
Robert Fulton the exclusive navigation of all the waters within
the jurisdiction of that State, with boats moved by fire or steam,
for a term of years which has not yet expired ; and authorizing
the chancellor to award an injunction, restraining any person
whatever from navigating those waters with boats of that de-
scription. The bill stated an assignment from Livingston and
Fulton to one John R. Livingston, and from him to the complain-
ant, Ogden, of the right to navigate the waters between Eliza-
bethtown, and other places in New Jersey, and the city of New
York ; and that Gibbons, the defendant below, was in possession
of two steamboats, called The Stoudinger and The Bellona, which
were actually employed in running between New York and
Elizabethtown, in violation of the exclusive privilege conferred
on the complainant, and praying an injunction to restrain the
245
246 CASES ON CONSTITUTIONAL LAW.
said Gibbons from using the said boats, or any other propelled
by fire or steam, in navigating the waters within the territory
of New York. The injunction having been awarded, the answer
of Gibbons was filed, in which he stated that the boats employed
by him were duly enrolled and licensed, to be employed in carry-
ing on the coasting trade, under the act of Congress, passed the
18th of February, 1793, c. 8 (1 Stats, at Large, 305), entitled,
"An act for enrolling and licensing ships and vessels to be em-
ployed in the coasting trade and fisheries, and for regulating the
same." And the defendant insisted on his right, in virtue of
such licenses, to navigate the waters between Elizabethtown and
the city of New York, the said acts of the legislature of the
State of New York to the contrary notwithstanding. At the
hearing, the chancellor perpetuated the injunction, being of the
opinion that the said acts were not repugnant to the constitution
and laws of the United States, and were valid. This decree was
affirmed in the court for the trial of impeachments and correc-
tion of errors, which is the highest court of law and equity in the
State, before which the cause could be carried, and it was there-
upon brought to this court by writ of error. . . .
MaeshaIiL, C. J., delivered the opinion of the court, and, after
stating the case, proceeded as follows : —
The appellant contends that this decree is erroneous, because
the laws which purport to give the exclusive privilege it sustains
are repugnant to the constitution and laws of the United States.
They are said to be repugnant, —
1. To that clause in the constitution which authorizes congress
to regulate commerce.
2. To that which authorizes congress to promote the progress
of science and useful arts.
The State of New York maintains the constitutionality of these
laws; and their legislature, their council of revision, and their
judges, have repeatedly concurred in this opinion. It is sup-
ported by great names, — by names which have all the titles to
consideration that virtue, intelligence, and office can bestow. No
tribunal can approach the decision of this question without feel-
ing a just and real respect for that opinion which is sustained by
such authority ; but it is the province of this court, while it re-
spects, not to bow to it implicitly ; and the judges must exercise,
in the examination of the subject, that understanding which
Providence has bestowed upon them, with that independence
GIBBONS V. OGDEN. 247
which the people of the United States expect from this depart-
ment of the government.
As preliminary to the very able discussions of the constitution
which we have heard from the bar, and as having some influence
on its construction, reference has been made to the political situ-
ation of these States, anterior to its formation. It has been said
that they were sovereign, were completely independent, and were
connected with each other only by a league. This is true. But,
when these allied sovereigns converted their league into a govern-
ment, when they converted their congress of ambassadors, de-
puted to deliberate on their common concerns, and to recommend
measures of general utility, into a legislature; empowered to
enact laws on the most interesting subjects, the whole character
in which the States appear underwent a change, the extent of
which must be determined by a fair consideration of the instru-
ment by which that change was effected.
This instrument contains an enumeration of powers expressly
granted by the people to their government. It has been said
that these powers ought to be construed strictly. But why ought
they to be so construed 1 Is there one sentence in the constitution
which gives countenance to this rule? In the last of the enu-
merated powers, that which grants, expressly, the means for
carrying all others into execution, congress is authorized "to
make all laws which shaU be necessary and proper" for the pur-
pose. But this limitation on the means which may be used, is
not extended to the powers which are conferred ; nor is there one
sentence in the constitution, which has been pointed out by the
gentlemen of the bar, or which we have been able to discern, that
prescribes this rule. "We do not, therefore, think ourselves justi-
fied in adopting it. What do gentlemen mean by a strict con-
struction ? If they contend only against that enlarged construc-
tion, which would extend words beyond their natural and ob-
vious import, we might question the application of the term, but
should not controvert the principle. If they contend for that
narrow construction which, in support of some theory not to be
found in the constitution, would deny to the government those
powers which the words of the grant, as usually understood, im-
port, and which are consistent with the general views and objects
of the instrument; for that narrow construction, which would
cripple the government, and render it unequal to the objects
for which it is declared to be instituted, and to which the pow-
ers given, as fairly understood, render it competent; then we
pannot perceive the propriety of this strict construction, nor
248 CASES ON CONSTITUTIONAL LAW.
adopt it as the rule by which the constitution is to be expounded.
As men whose intentions require no concealment, generally em-
ploy the words which most directly and aptly express the ideas
they intend to convey, the enlightened patriots who framed our
constitution, and the people who adopted it, must be understood
to have employed words in their natural sense, and to have in-
tended what they have said. If, from the imperfection of human
language, there should be serious doubts respecting the extent
of any given power, it is a well settled rule that the objects for
which it was given, especially when those objects are expressed
in the instrument itself, should have great influence in the con-
struction. We know of no reason for excluding this rule from
the present case. The grant does not convey power which might
be beneficial to the grantor, if retained by himself, or which can
enure solely to the benefit of the grantee ; but is an investment
of power for the general advantage, in the hands of agents
selected for that purpose; which power can never be exercised
by the people themselves, but must be placed in the hands of
agents, or lie dormant. We know of no rule for construing the
extent of such powers, other than is given by the language of
the instrument which confers them, taken in connection with the
purposes for which they were conferred.
The words are : ' ' Congress shall have power to regulate com-
merce with foreign nations, and among the several States, and
with the Indian tribes." The subject to be regulated is com-
merce ; and our constitution being, as was aptly said at the bar,
one of enumeration, and not of definition, to ascertain the extent
of the power, it becomes necessary to settle the meaning of the
word. The counsel for the appellee would limit it to traffic, to
buying and selling, or the interchange of commodities, and do
not admit that it comprehends navigation. This would restrict
a general term, applicable to many objects, to one of its signifi-
cations. Commerce, undoubtedly, is traffic, but it is something
more, — it is intercourse. It describes the commercial intercourse
between nations, and parts of nations, in all its branches, and is
regulated by prescribing rules for carrying on that intercourse.
The mind can scarcely conceive a system for regulating com-
merce between nations which shall exclude all laws concerning
navigation, which shall be silent on the admission of the vessels
of the one nation into the ports of the other, and be confined to
prescribing rules for the conduct of individuals, in the actual
employment of buying and selling or of barter.
If commerce does not include navigation, the government of
GIBBONS V. OGDEN. 249
the Union has no direct power over that subject, and can make no
law prescribing what shall constitute American vessels, or requir-
ing that they shall be navigated by American seamen. Yet this
power has been exercised from the commencement of the govern-
ment, has been exercised with the consent of all, and has been
understood by all to be a commercial regulation. All America
understands, and has uniformly understood, the word "com-
merce" to comprehend navigation. It was so understood, and
must have been so understood, when the constitution was framed.
The power over commerce, including navigation, was one of the
primary objects for which the people of America adopted their
government, and must have been contemplated in forming it.
The convention must have used the word in that sense, because
all have understood it in that sense ; and the attempt to restrict
it comes too late.
If the opinion that "commerce," as the word is used in the
constitution, comprehends navigation also, requires any addi-
tional confirmation, that additional confirmation is, we think,
furnished by the words of the instrument itself. It is a rule
of construction acknowledged by all, that the exceptions from a
power mark its extent; for it would be .absurd, as well as use-
less, to except from a granted power that which was not granted,
— that which the words of the grant could not comprehend. If,
then, there are in the constitution plain exceptions from the
power over navigation, plain inhibitions to the exercise of that
power in a particular way, it is a proof that those who made
these exceptions, and prescribed these inhibitions, understood
the power to which they applied as being granted.
The 9th section of the 1st article declares that ' ' no preference
shall be given, by any regulation of commerce or revenue, to the
ports of one State over those of another." This clause cannot
be understood as applicable to those laws only which are passed
for the purposes of revenue, because it is expressly applied to
commercial regulations; and the most obvious preference which
can be given to one port over another, in regulating commerce,
relates to navigation. But the subsequent part of the sentence is
still more explicit. It is, "nor shall vessels bound to or from
one State, be obliged to enter, clear, or pay duties in another."
These words have a direct reference to navigation.
The universally acknowledged power of the government to
impose embargoes must also be considered as showing that all
America is united in that construction which comprehends navi-
gation in the word "commerce." Gentlemen have said, in argu-
250 CASES ON CONSTITUTIONAL LAW.
ment, that this is a branch of the war-making power, and that
an embargo is an instrument of war, not a regulation of trade.
That it may be, and often is, used as an instrument of war, can-
not be denied. An embargo may be imposed for the purpose
of facilitating the equipment or manning of a fleet, or for the
purpose of concealing the progress of an expedition preparing
to sail from a particular port. In these, and in similar cases, it
is a military instrument, and partakes of the nature of war. But
all embargoes are not of this description. They are sometimes
resorted to without a view to war, and with a single view to
commerce. In such case an embargo is no more a war measure
than a merchantman is a ship of war, because both are vessels
which navigate the ocean with sails and seamen.
When congress imposed that embargo which, for a time, en-
gaged the attention of every man in the United States, the avowed
object of the law was the protection of commerce and the avoid-
ing of war. By its friends and its enemies it was treated as a
commercial, not as a war, measure. The persevering earnestness
and zeal with which it was opposed, in a part of our country
which supposed its interests to be vitally affected by the act,
cannot be forgotten. A want of acuteness in discovering objec-
. tions to a measure to which they felt the most deep-rooted hos-
tility, will not be imputed to those who were arrayed in opposi-
tion to this. Yet they never suspected that navigation was no
branch of trade, and was, therefore, not comprehended in the
power to regulate commerce. They did, indeed, contest the con-
stitutionality of the act, but on a principle which admits the con-
struction for which the appellant contends. They denied that
the particular law in question was made in pursuance of the
constitution, not because the power could not act directly on
vessels, but because a perpetual embargo was the annihilation,
and not the regulation, of commerce. In terms, they admitted
the applicability of the words used in the constitution to vessels ;
and that, in a case which produced a degree and an extent of
excitement calculated to draw forth every principle on which
legitimate resistance could be sustained. No example could
more strongly illustrate the universal understanding of the
American people on this subject.
The word used in the constitution, then, comprehends, and has
been always understood to comprehend, navigation within its
meaning ; and a power to regulate navigation is as expressly
granted as if that term had been added to the word "com-
PAUL V. VIRGINIA. 251
merce." . . . [The remaining portion of the opinion is
printed post, page 263.]
Note. — The inability of the Congress under the Confederation to enforce
the commercial treaties which it had made with other countries and the
dire straits to which interstate commerce had been reduced by the hostile
legislation of the several States led to the summoning of a convention at
Annapolis in September, 1786, "to take into consideration the trade of
the United States, ' ' and to report such an act as would ' ' enable the United
States in Congress effectually to provide for the same." Elliot's Debates,
I, lis: The principle upon which any effective remedy must be framed had
already been stated by "Washington in a letter to Jay, August 1, 1786 :
I do not conceive we can exist long as a nation without having
lodged somewhere a power which will pervade the whole Union in as
energetic a manner as the authority of the State governments ex-
tends over the several States.
Evans, Writings of Washington, 263.
It was upon this principle that the Federal Convention framed the new
Constitution, and no part of that instrument has contributed so much toward
welding the several States into a national unit as has the commerce clause.
The principal case was the first decision of the Federal Supreme Court in
which it was interpreted, and it is a significant indication of the change
which has come over the economic and social life of the country that a
clause which was not invoked for thirty-five years after the adoption of
the Constitution is now the source of more litigation than any other part of
that instrument. The framers of the Constitution felt that it was necessary
to vest Congress with power to regulate interstate commerce in order to
make its control over foreign commerce effective. See Hamilton's argument
in The Federalist, No. 22, and Madison 's in No. 42. For the history of the
adoption and interpretation -of the commerce clause see Bancroft, History of
the Constitution of the United States, I, 184-209, 249-51, 267-278; Brown,
The Commercial Power of Congress; Calvert, The Regulation of Commerce
under the Federal Constitution; Cooke, The Commerce Clause of the Con-
stitution; The Federalist, Nos. 7, 11, 22, 42; Fiske, The Critical Period of
American History, ch. iv; Judson, The Law of Interstate Commerce;
McLaughlin, The Confederation and the Constitution ; Prentice and Egan,
The Commerce Clause of the Federal Constitution; Story, Commentaries,
sees. 1054-1101; Willoughby, The Constitutional Law of the United States,
II, 629-773. For an excellent account of the economic background of the
decision in Gibbons v. Ogden, see Prentice, The Federal Power over Car-
riers and Corporations, ch. iii.
PAUL V. VIRGINIA.
SUPEEME COUBT OF THE UNITED STATES. 1868.
8 Wallace, 168; 19 Lawyers' Ed. 357.
Error to the Supreme Court of Appeals of the State of Vir-
ginia.
252 CASES ON CONSTITUTIONAL LAW.
[The legislature of Virginia passed an act providing that no
insurance company not incorporated in that State should carry-
on its business in that State without first depositing certain
bonds of a specified character with the State treasurer and re-
ceiving from him a license to do business. The plaintifE, agent
in Virginia for several insurance companies incorporated in
New York, was indicted, convicted and sentenced to pay a fine
for failure to comply with the requirements of the statute. One
of the defenses set up by him was that the Virginia statute Tjas a
regulation of interstate commerce and hence was void.]
Mr. Justice Field . . . delivered the opinion of the
court. . . .
We proceed to the second objection urged to the validity of
the Virginia statute, which is founded upon the commercial
clause of the Constitution. It is undoubtedly true, as stated by
counsel, that the power conferred upon Congress to regulate
commerce includes as well commerce carried on by corporations
as commerce carried on by individuals. At the time of the for-
mation of the Constitution a large part of the commerce of the
world was carried on by corporations. The East India Com-
pany, the Hudson's Bay Company, the Hamburgh Company,
the Levant Company, and the Virginia Company, may be named
among the many corporations then in existence which acquired,
from the extent of their operations, celebrity throughout the
commercial world. This state of facts forbids the supposition
that it was intended in the grant of power to Congress to ex-
clude from its control the commerce of corporations. The lan-
guage of the grant makes no reference to the instrumentalities
by which commerce may be carried on; it is general, and in-
cludes alike commerce by individuals, partnerships, associations,
and corporations.
There is, therefore, nothing in the fact that the insurance
companies of New York are corporations to impair the force of
the argument of counsel. The defect of the argument lies in
the character of their business. Issuing a policy of insurance is
not a transaction of commerce. The policies are simple contracts
of indemnity against loss by fire, entered into between the cor-
porations and the assured, for a consideration paid by the lat-
ter. These contracts are not articles of commerce in any proper
meaning of the word. They are not subjects of trade and barter
offered in the market as something having an existence and value
independent of the parties to them. They are not commodities
PAUL V. VIRGINIA. 253
to be shipped or forwarded from one State to another, and then
put up for sale. They are like other personal contracts between
parties which are completed by their signature and the transfer
of the consideration. Such contracts are not interstate trans-
actions, though the parties may be domiciled in different States.
The policies do not take effect — are not executed contracts —
until delivered by the agent in Virginia. They are, then, local
transactions, and are governed by the local law. They do not
constitute a part of the commerce between the States any more
than a contract for the purchase and sale of goods in Virginia
by a citizen of New York whilst in Virginia would constitute
a portion of such commerce.
In Nathan v. Louisiana, 8 Howard, 73, this court held that a
law of that State imposing a tax on money and exchange brokers,
who dealt entirely in the purchase and sale of foreign bills of
exchange, was not in conflict with the constitutional power of
Congress to regulate commerce. The individual thus using his
money and credit, said the court, "is not engaged in commerce,
but in supplying an instrument of commerce. He is less con-
nected with it than the shipbuilder, without whose labor foreign
commerce could not be carried on." And the opinion shows
that, although instruments of commerce, they are the subjects
of State regulation, and, inferentially, that they may be sub-
jects of direct State taxation. . . .
If foreign bills of exchange may thus be the subject of State
regulation, much more so may contracts of insurance against
loss by fire.
"We perceive nothing in the statute of Virginia which con-
flicts with the Constitution of the United States; and the judg-
ment of the Supreme Court of Appeals of that State must,
therefore, be Affirmed.
Note. — The ruling in the principal case as to a contract of fire insurance
was afterward applied to a contract of marine insurance (Hooper v. Cali-
fornia [1895], 155 TJ. S. 647) and to a contract of mutual life insurance
(New York Life Insurance Co. v. Cravens [1900], 178 U. S. 389). The
principal case has been much criticized, but has been steadily followed.
Its doctrine was reexamined in the light of subsequent decisions and was
reaffirmed in New York Life Insurance Co. v. Deer Lodge County (1913),
231 U. S. 495. The same result was reached by the House of Lords in
Citizen's Insurance Co. v. Parsons (1881), 7 L. E. Appeal Cases, 96, 111.
As to the power of a State to tax the business of a foreign insurance com-
pany done within its limits, see Equitable Life Assurance Society v. Penn-
sylvania (1915), 238 U. 8. 143.
254 CASES ON CONSTITUTIONAL LAW.
PENSACOLA TELEGRAPH COMPANY v. WESTERN
UNION TELEGRAPH COMPANY.
SUPBBME COUBT OP THE UNITED STATES. 1877.
96 U. S. 1; 24 Lawyers' Ed. 708.
Appeal from the Circuit of the United States for the North-
ern District of Florida. . . . [The Pensaeola Telegraph
Co. was incorporated in 1866 by the State of Florida, and grant-
ed the exclusive right to establish and maintain telegraph lines
in certain counties of Florida. Later, in 1874, the legislature
of Florida empowered a railroad company to erect a telegraph
line within the territory of the exclusive grant to the Pensaeola
Company. In 1866, prior to the passage of the first of these
acts. Congress had enacted that telegraph lines might be estab-
lished "through and over any portion of the public domain of
the United States, over and lalong any of the military and post
roads of the United States which have been or may hereafter be
declared such by act of Congress, and over, under, or across the
navigable streams and waters of the United States." In June,
1867, the defendants had filed with the Postmaster-General their
acceptance of the terms of the act, as required by law. In 1874
the railroad company above mentioned authorized the defend-
ant to erect a telegraph line upon its right of way, whereupon
the plaintiff sought to enjoin the construction and use of the
line.]
Mb. Chief Justice Waite delivered the opinion of the
court . . .
Since the case of Gibbons v. Ogden (9 Wheat. 1), it has never
been doubted that commercial intercourse is an element of com-
merce which comes within the regulating power of Congress.
Post-offices and post-roads are established to facilitate the trans-
mission of intelligence. Both commerce and the postal service
are placed within the power of Congress, because, being national
in their operation, they should be under the protecting care of
the national government.
The powers thus granted are not confined to the instrumental-
ities of commerce, or the postal system known or in use when
the Constitution was adopted, but they keep pace with the prog-
ress of the country, and adapt themselves to the new develop-
ments of times and circumstances. They extend from the horse
with its rider to the stage-coach, from the sailing-vessel to the
steamboat, from the coach and the steamboat to the railroad,
PENSACOLA TEL. CO. v. W. U. TEL. CO. 255
and from the railroad to the telegraph, as these new agencies are
.successively brought iato use to meet the demands of increas-
ing population and wealth. They were intended for the gov-
ernment of the business to which they relate, at all times and
under all circumstances. As they were entrusted to the general
government for the good of the nation, it is not only the right,
but the duty, of Congress to see to it that intercourse among the
States and the transmission of intelligence are not obstructed or
unnecessarily encumbered by State legislation.
The electric telegraph marks an epoch in the progress of time.
In a little more than a quarter of a century it has changed the
habits of business, and become one of the necessities of commerce.
It is indispensable as a means of inter-communication, but es-
pecially is it so in commercial transactions. The statistics of
the business before the recent reduction in rates show that more
than eighty per cent of aU the messages sent by telegraph related
to commerce. Goods are sold and money paid upon telegraphic
orders. Contracts are made by telegraphic correspondence, ear-
goes secured, and the movement of ships directed. The tele-
graphic announcement of the markets abroad regulates prices at
home, and a prudent merchant rarely enters upon an important
transaction without using the telegraph freely to secure infor-
mation.
It is not only important to the people, but to the govern-
ment. By means of it the heads of departments in Washington
are kept in close communication with all their various agencies
at home and abroad, and can know at almost any hour, by in-
quiry, what is transpiring anywhere that affects the interest
they have in charge. Under such circumstances, it cannot for a
moment be doubted that this powerful agency of commerce and
inter-communication comes within the controlling power of Con-
gress, certainly as against hostile State legislation. In fact, from
the beginning, it . seems to have been assumed that Congress
might aid in developing the system ; for the first telegraph line
of any considerable extent ever erected was built between Wash-
ington and Baltimore, only a little more than thirty years ago,
with money appropriated by Congress for that purpose (5 Stat,
618) ; and large donations of land and money have since been
made to aid in the construction of other lines (12 Stat. 489, 772;
13 id. 365; 14 id. 292). It is not necessary now to inquire
whether Congress may assume the telegraph as part of the postal
service, and exclude all others from its use. The present case
is satisfied, if we find that Congress has power, by appropriate
256 CASES ON CONSTITUTIONAL LAW.
legislation, to prevent the States from placing obstructions in
the way of its usefulness.
The government of the United States, within the scope of its
powers, operates upon every foot of territory under its juris-
diction. It legislates for the whole nation, and is not embar-
rassed by State lines. Its peculiar duty is to protect one part
of the country from encroachments by another upon the national
rights which belong to all.
The State of Florida has attempted to confer upon a single
corporation the exclusive right of transmitting intelligence by
telegraph over a certain portion of its territory. This embraces
the two westernmost counties of the State, and extends from
Alabama to the Gulf, No telegraph line can cross the State from
east to west, or from north to south, within these counties, except
it passes over this territory. Within it is situated an important
seaport, at which business centers, and with which those engaged
in commercial pursuits have occasion more or less to communi-
cate. The United States have there also the necessary machin-
ery of the national government. They have a navy-yard, forts,
custom-houses, courts, post-offices, and the appropriate officers
for the enforcement of the laws. The legislation of Florida, if
sustained, excludes all commercial intercourse by telegraph be-
tween the citizens of the other States and those residing upon
this territory, except by the employment of this corporation.
The United States cannot communicate with their own officers
by telegraph except in the same way. The State, therefore,
clearly has attempted to regulate commercial intercourse between
its citizens and those of other States, and to control the trans-
mission of all telegraphic correspondence within its own juris-
diction.
It is unnecessary to decide how far this might have been done
if Congress had not acted upon the same subject, for it has acted.
The statute of July 24, 1866, in effect, amounts to a prohibition
of all State monopolies in this particular. It substantially de-
clares, in the interest of commerce and the convenient transmis-
sion of intelligence from place to place by the government of
the United States and its citizens, that the erection of telegraph
lines shall, so far as State interference is concerned, be free to
all who will submit to the conditions imposed by Congress, and
that corporations organized under the laws of one State for
constructing and operating telegraph lines shall not be excluded
by another from prosecuting their business within its jurisdic-
tion, if they accept the terms proposed by the national govern-
PENSACOLA TEL. CO. v. W. U. TEL. CO. 257
ment for this national privilege. To this extent, certainly, the
statute is a legitimate regulation of commercial intercourse
among the States, and is appropriate legislation to carry into
execution the powers of Congress over the postal service. It
gives no foreign corporation the right to enter upon private
property without the consent of the owner and erect the neces-
sary structures for its business ; but it does provide, that, when-
ever the consent of the owner is obtained, no State legislation
shall prevent the occupation of post-roads for telegraph purposes
by such corporations as are willing to avail themselves of its
privileges.
It is insisted, however, that the statute extends only to such
military and post roads as are upon the public domain ; but this,
we think, is not so. The language is, "Through and over any
portion of the public domain of the United States, over and
along any of the military or post roads of the United States
which have been or may hereafter be declared such by act of
Congress, and over, under, or across the navigable streams or
waters of the United States." There is nothing to indicate an
intention of limiting the effect of the words employed, and they
are, therefore, to be given their natural and ordinary significa-
tion. Eead in this way, the grant evidently extends to the pub-
lic domain, the military and post roads, and the navigable waters
of the United States. These are all within the domain of the
national government to the extent of the national powers, and
are, therefore, subject to legitimate congressional regulation. No
question arises as to the authority of Congress to provide for the
appropriation of private property to the uses of the telegraph,
for no such attempt has been made. The use of public property
alone is granted. If private property is required, it must, so
far as the present legislation is concerned, be obtained by pri-
vate arrangement with its owner. No compulsory proceedings
are authorized. State sovereignty under the Constitution is not
interfered with. Only national privileges are granted.
The State law in question, so far as it confers exclusive rights
upon the Pensacola Company, is certainly in conflict with this
legislation of Congress. To that extent it is, therefore, inopera-
tive as against a corporation of another State entitled to the
privileges of the act of Congress. Such being the case, the char-
ter of the Pensacola Company does not exclude the Western
Union Company from the occupancy of the right of way of the
E. C. L.— IT
258 CASES ON CONSTITUTIONAL LAW.
Pensaeola and Louisville Railroad Company under the arrange-
ment made for that purpose. . . . Decree affirmed.
Mr. Justice Field and Me. Justice Hunt dissented. . . .
UNITED STATES v. E. C. ENIGHT CO.
SUPEBME COITRT OF THE UNITED STATES. 1895.
156 U. S. 1; 39 Lawyers' Ed. 325.
[This was a bill filed by the United States against the E. C.
Knight Company and four other corporations and charged that
they had entered into contracts for the purchase by the American
Sugar Refining Company of the shares of stock and the property
of the other companies, and the issuance in exchange to the other
companies of shares of stock in the said American Sugar Refin-
ing Company; that these contracts were entered into for the
purpose of obtaining control by the last named company of the
price of sugar in the United States and monopolizing the manu-
facture and sale of refined sugar therein; and that such con-
tracts were in violation of the provisions of an act of Congress
approved July 2, 1890, entitled "An act to protect trade and
commerce against unlawful restraints and monopolies," 26 Stat.
209, providing "that every contract, combination in the' form
of trust, or otherwise, or conspiracy in restraint of trade and
commerce among the several States is illegal, and that persons
who shall monopolize or shall attempt to monopolize, or combine
or conspire with other persons to monopolize trade and commerce
among the several States, shall be guilty of a misdemeanor."
The petitioner prayed that the agreements referred to be can-
celled and declared void and that the defendants be enjoined
from carrying them out and from violating said act.]
Mr. Chief Justice Fuller . . . delivered the opinion
of the court.
By the purchase of the stock of the four Philadelphia refin-
eries, with shares of its own stock, the American Sugar Refining
Company acquired nearly complete control of the manufacture
of refined sugar within the United States. The bill charged that
the contracts under which these purchases were made constituted
combinations in restraint of trade, and that in entering into them
the defendants combined and conspired to restrain the trade
UNITED STATES v. E. C. KNIGHT CO. 259
and commerce in refined sugar among the several States and
with foreign nations, contrary to the act of Congress of July
2, 1890. . . .
The fundamental question is, whether conceding that the exist-
ence of a monopoly in manufacture is established by the evidence,
that monopoly can be directly suppressed under the act of Con-
gress in the mode attempted by this bill. .
The argument is that the power to control the manufacture of
refined sugar is a monopoly over a necessary of life, to the enjoy-
ment of which by a large part of the population of the United
States interstate commerce is indispensable, and" that, therefore,
the general government in the exercise of the power to regulate
commerce may repress such monopoly directly and set aside the
instruments which have created it. But this argument cannot
be confined to necessaries of life merely, and must include all
articles of general consumption. Doubtless the power to control
the manufacture of a given thing involves in a certain sense the
control of its disposition, but this is a secondary and not the
primary sense; and although the exercise of that power may
result in bringing the operation of commerce into play, it does
not control it, and affects it only incidentally and indirectly.
Commerce succeeds to manufacture, and is not a part of it. The
power to regulate commerce is the power to prescribe the rule
by which commerce shall be governed, and is a power indepen-
dent of the power to suppress monopoly. But it may operate in
repression of monopoly whenever that comes within the rules by
which commerce' is governed or whenever the transaction is
itself a monopoly of commerce. .
It will be perceived how far-reaching the proposition is that
the power of dealing with a monopoly directly may be exercised
by the general government whenever interstate or international
commerce may be ultimately affected. The regulation of com-
merce applies to the subjects of commerce and not to matters of
internal police. Contracts to buy, sell, or exchange goods to be
transported among the several States, the transportation and its
instrumentalities, and articles bought, sold or exchanged for the
purposes of such transit among the States, or put in the way of
transit, may be regulated, but this is because they form part of
interstate trade or commerce. The fact that an article is manu-
factured for export to another State does not of itself make it an
article of interstate commerce, and the intent of the manufac-
turer does not determine the time when the article or product
passes from the control of the State and belongs to commerce.
260 CASES ON CONSTITUTIONAL LAW.
This was so ruled in Coe v. Brrol, 116 U. S. 517, 525, in which
the question before the court was whether certain logs cut at a
place in New Hampshire and hauled to a river town for the pur-
pose of transportation to the State of Maine were liable to be
taxed like other property in the State of New Hampshire. Mr.
Justice Bradley, delivering the opinion of the court, said: "Does
the owner's state of mind in relation to the goods, that is, his
intent to export them, and his partial preparation to do so,
exempt them from taxation? This is the precise question for
solution. . . . There must be a point of time when they
cease to be governed exclusively by the domestic law and begin
to be governed and protected by the national law of commercial
regulation, and that 'moment seems to us to be a legitimate one
for this purpose, in which they commence their final movement
from the State of their origin to that of their destination."
And again, in Kidd v. Pearson, 128 U. S. 1, 20, 21, 22, where
the question was discussed whether the right of a State to enact
a statute prohibiting within its limits the manufacture of intoxi-
cating liquors, except for certain purposes, could be overthrown
by the fact that the manufacturer intended to export the liquors
when made', it was held that the intent of the manufacturer did
not determine the time when the article or product passed from
the control of the State and belonged to commerce, and that,
therefore, the statute, in omitting to except from its operation
the manufacture of intoxicating liquors within the limits of the
State for export, did not constitute an unauthorized interference
with the right of Congress to regulate commerce. And Mr. Jus-
tice Lamar remarked: "No distinction is more popular to the
common mind, or more clearly expressed in economic and polit-
ical literature, than that between manufacture and commerce.
Manufacture is transformation — ^the fashioning of raw materials
into a change of form for use. The functions of commerce are
different. The buying and selling and the transportation inci-
dental thereto constitute commerce ; and the regulation of com-
merce in the constitutional sense embraces the regulation at least
of such transportation. . . . If it be held that the term
includes the regulation of all such manufactures as are intended
to be the subject of commercial transactions in the future, it is
impossible to deny that it would also include all productive indus-
tries that contemplate the same thing. The result would be that
Congress would be invested, to the exclusion of the States, with
the power to regulate, not only manufactures, but also agricul-
ture, horticulture, stock raising, domestic fisheries, mining — in
UNITED STATES v. E. C. KNIGHT CO. 261
short, every branch of human industry. For is there one of them
that does not contemplate, more or less clearly, an interstate or
foreign market? Does not the wheat grower of the Northwest
or the cotton planter of the South, plant, cultivate, and harvest
his crop with an eye on the prices at Liverpool, New York, and
Chicago? The power being vested in Congress and denied to
the States, it would follow as an inevitable result that the duty
would devolve on Congress to regulate' all of these delicate, mul-
tiform and vital interests — interests which in their nature are
and must be local in all the details of their successful manage-
ment. . . . The demands of such a supervision would re-
quire, not uniform legislation generally applicable throughout
the United States, but a swarm of statutes only locally applicable
and utterly inconsistent. Any movement toward the establish-
ment of rules of production in this vast country, with its many
different climates and opportunities, could only be at the sacri-
fice of the peculiar advantages of a large part of the localities
in it, if not of every one of them. On the other hand, any move-
ment toward the local, detailed and incongruous legislation
required by such interpretation would be about the widest possi-
ble departure from the declared object of the clause in question.
Nor this alone. Even in the exercise of the power contended for.
Congress would be confined to the regulation, not of certain
branches of industry, however numerous, but to those instances
in each and every branch where the producer contemplated an
interstate market. These instances would be almost infinite, as
we have seen ; but still there would always remain the possibility,
and often it would be the case, that the producer contemplated
a domestic market. In that case the supervisory power must
be executed by the State ; and the interminable trouble would be
presented, that whether the one power or the other should exer-
cise the authority in question would be determined, not by any
general or intelligible rule, but by the secret and changeable
intention of the producer in each and every act of production.
A situation more paralyzing to the state governments, and more
provocative of conflicts between the general government and the
States, and less likely to have been what the framers of the Con-
stitution intended, it would be difficult to imagine." And see
Veazie v. Moor, 14 How. 568, 574. . . .
Contracts, combinations, or conspiracies to control domestic
enterprise in manufacture, agriculture, mining, production in all
its forms, or to raise or lower prices or wages, might unques-
tionably tend to restrain external as well as domestic trade, but
262 CASES ON CONSTITUTIONAL LAW.
the restraint would be an indirect result, however inevitable and
whatever its extent, and such result would not necessarily deter-
mine the object of the contract, combination, or conspiracy.
It was in the light of well-settled principles that the act of
July 2, 1890, was framed. Congress did not attempt thereby to
assert the power to deal with monopoly directly as such; or to
limit and restrict the rights of corporations created by the States
or the citizens of the States in the acquisition, control, or dispo-
sition of property ; or to regulate or prescribe the price or prices
at which such property or the products thereof should be sold ;
or to make criminal the acts of persons in the acquisition and
control of property which the States of their residence or crea-
tion sanctioned or permitted. Aside from the provisions applica-
ble where Congress might exercise municipal power, what the law
struck at was combinations, contracts, and conspiracies to monop-
olize trade and commerce among the several States or with
foreign nations; but the contracts and acts of the defendants
related exclusively to the acquisition of the Philadelphia refin-
eries and the business of sugar refining in Pennsylvania, and
bore no direct relation to commerce between the States or with
foreign nations. The object was manifestly private gain in the
manufacture of the commodity, but not through the control of
interstate or foreign commerce. It is true that the bill alleged
that the products of these refineries were sold and distributed
among the several States, and that all the companies were
engaged in trade or commerce with the several States and with
foreign nations ; but this was no more than to say that trade and
commerce served manufacture to fulfil its function. Sugar was
refined for sale, and sales were probably made at Philadelphia
for consumption, and undoubtedly for resale by the first pur-
chasers throughout Pennsylvania and other States, and refined
sugar was also forwarded by the companies to other States for
sale. Nevertheless it does not follow that an attempt to monopo-
lize, or the actual monopoly of, the manufacture was an attempt,
whether executory or consummated, to monopolize commerce,
even though, in order to dispose of the product, the instrumen-
tality of commerce was necessarily invoked. There was nothing
in the proofs to indicate any intention to put a restraint upon
trade or commerce, and the fact, as we have seen, that trade or
commerce might be indirectly affected was not enough to entitle
complainants to a decree. The subject-matter of the sale was
shares of manufacturing stock, and the relief sought was the sur-
GIBBONS V. OGDBN. 263
render of property which had already passed and the suppression
of the alleged monopoly in manufacture by the restoration of the
status quo before the transfers; yet the act of Congress only
authorized the Circuit Courts to proceed by way of preventing
and restraining violations of the act in respect of contracts, com-
binations, or conspiracies in restraint of interstate or interna-
tional trade or commerce.
The Circuit Court declined, upon the pleadings and proofs,
to grant the relief prayed, and dismissed the bill, and we are of
opinion that the Circuit Court of Appeals did not err in affirm-
ing that decree. Decree affirmed.
Mr. Justice Harian, dissenting. .
Note.— Compare Montague & Co. v. Lowry (1904), 193 TJ. S. 38, which
deals with a combination between manufacturers of tiles and dealers therein.
The term commerce not only includes navigation (Pennsylvania v. "Wheel-
ing Bridge Co. [1852], 13 Howard, 519; Oilman v. Philadelphia [1865],
3 WaUace, 713; Head Money Cases [1884], 112 U. S. 580), but the trans-
portation by whatever agencies of commodities (United States v. Trans-
Missouri Freight Association [1897], 166 U. S. 290), or of passengers (The
Passenger Cases [1849], 7 Howard, 283), even on foot (Covington Bridge
Co. V. Kentucky [1894], 154 TJ. S. 204), or the transmission of ideas (Inter-
national Text-Book Co. v. Pigg [1910], 217 U. S. 91), and it is immaterial
whether such transportation is connected with a sale (Hanley v. Kansas
City Southern Ey. [1903], 187 XT. S. 617). Included in the term transporta-
tion are all the services in connection with the receipt of the property
transported (Houston & Texas Central Ey. v. Mayes [1906], 201 U. S. 321).
A contract may or may not be a transaction of interstate commerce. If
it is in the form of a bill of lading, it is (Almy v. California [1860], 24
Howard, 169; Woodruff v. Parham [1870], 8 WaUace, 123), but if in the
form of a bill of exchange (Nathan v. Louisiana [1850], 8 Howard, 73)
or of a contract to perform labor outside the State (Williams v. Fear
[1900], 179 U. S. 270), or of a contract for future delivery to be executed
in another State (Ware & Leland v. Mobile County [1908], 209 U. S. 405),
or of the contract of a private banker with his depositors (Engel v.
O'MaUey [1911], 219 U. S. 128), it is not.
Section 2. Federal, Jurisdiction Over Commerce.
GIBBONS V. OGDEN.
SuPKEME Court of the United States. 1824.
9 Wheaton, 1; 6 Lawyers' Ed. 23.
[The statement of facts and the first part of the opinion are
given ante, page 245.]
To what commerce does this power extend? The constitution
264 CASES ON CONSTITUTIONAL LAW.
informs us, to commerce "with foreign nations, and among the
several States, and with the Indian tribes." It has,, we believe,
been universally admitted that these words comprehend every
species of commercial intercourse between the United States and
foreign nations. No sort of trade can be carried on between this
country and any other to which this power does not extend. It
has been truly said that commerce, as the word is used in the
constitution, is a unit, every part of which is indicated by the
term. If ^his be the admitted meaning of the word, in its appli-
cation to foreign nations, it must carry the same meaning
throughout the sentence, and remain a unit, unless there be
some plain intelligible cause which alters it.
The subject to which the power is next applied is to commerce
"among the several States." The word "among" means inter-
mingled with. A thing which is among others is intermingled
with them. Commerce among the States cannot stop at the ex-
ternal boundary line of each State, but may be introduced into
the interior.
It is not intended to say that these words comprehend that
commerce which is completely internal, which is carried on be-
tween man and man in a State, or between different parts of the
same State, and which does not extend to or affect other States.
Such a power would be inconvenient and is certainly unneces-
sary.
Comprehensive as the word "among" is, it may very properly
be restricted to that commerce which concerns more States than
one. The phrase is not one which would probably have been
selected to indicate the completely interior trafSc of a State, be-
cause it is not an apt phrase for that purpose ; and the enumera-
tion of the particular classes of commerce to which the power
was to be extended would not have been made had the intention
been to extend the power to every description. The enumera-
tion presupposes something not enumerated; and that some-
thing, if we regard the language or the subject of the sentence,
must be the exclusively internal commerce of a State. The
genius and character of the whole government seem to be, that
its action is to be applied to all the external concerns of the
nation, and to those internal concerns which affect the States
generally; but not to those which are completely within a par-
ticular State, which do not affect other States, and with which
it is not necessary to interfere for the purpose of executing some
of the general powers of the government. The completely in-
GIBBONS V. OGDEN. 265
ternal commerce of a State, then, may be considered as reserved
for the State itself.
But, in regulating commerce with foreign nations, the power
of congress does not stop at the jurisdictional lines of the several
States. It would be a very useless power if it could not pass
those lines. The commerce of the United States with foreign
nations is that of the whole United States. Every district has a
right to participate in it. The deep streams which penetrate
our country in every direction pass through the interior of al-
most every State in the Union, and furnish the means of exer-
cising this right. If congress has the power to regulate it, that
power must be exercised whenever the subject exists. If it
exists within the States, if a foreign voyage may commence or
terminate at a port within a State, then the power of congress
may be exercised within a State.
This principle is, if possible, still more clear when applied to
commerce "among the several States." They either join each
other, in which case they are separated by a mathematical Une,
or they are remote from each other, in which case other States
lie between them. What is commerce "among" them; and how
is it to be conducted? Can a trading expedition between two
adjoining States commence and terminate outside of each? And
if the trading intercourse be between two States remote from
each other, must it not commence in one, terminate in the other,
and probably pass through a third ? Commerce among the States
must, of necessity, be commerce with the States. In the regula-
tion of trade with the Indian tribes, the action of the law, es-
pecially when the constitution was made, was chiefly within a
State. The power of Congress, then, whatever it may be, must'
be exercised within the territorial jurisdiction of the several
States. The sense of the nation on this subject is unequivocally
manifested by the provisions made in the laws for transport-
ing goods by land between Baltimore and Providence, between
New York and Philadelphia, and between Philadelphia and
Baltimore.
We are now arrived at the inquiry, what is this power?
It is the power to regulate; that is, to prescribe the rule by
which commerce is to be governed. This power, like aU others
vested in congress, is complete in itself, may be exercised to its
utmost extent, and acknowledges no limitations other than are
prescribed in the constitution. These are expressed in plain
terms, and do not affect the questions which arise in this case,
or which have been discussed at the bar. If, as has always been
266 CASES ON CONSTITUTIONAL LAW.
understood, the sovereignty of congress, though limited to speci-
fied objects, is plenary as to those objects, the power over com-
merce with foreign nations, and among the several States, is
vested in congress as absolutely as it would be in a single gov-
ernment, having in its constitution the same restriction's on the
exercise of the power as are found in the constitution of the
United States. The wisdom and the discretion of congress, their
identity with the people, and the influence which their constitu-
ents possess at elections, are, in this, as in many other instances,
as that, for example, of declaring war, the sole restraints on
which they have relied, to secure them from its abuse. They are
the restraints on which the people must often rely solely, in
all representative governments.
The power of congress, then, comprehends navigation within
the limits of every State in the Union, so far as that navigation
may be, in any manner, connected with "commerce with for-
eign nations, or among the several States, or with the Indian
tribes." It may, of consequence, pass the jurisdictional line of
New York, and act upon the very waters to which the prohibi-
tion now under consideration applies.
But it has been urged with great earnestness that, although
the power of congress to regulate commerce with foreign na-
tions, and among the several States, be co-extensive with the
subject itself, and have no other limits than are prescribed in the
constitution, yet the States may severally exercise the same
power within their respective jurisdictions. In support of this
argument, it is said that they possessed it as an inseparable
attribute of sovereignty before the formation of the constitution,
and still retain it, except so far as they have surrendered it by
that instrumesnt; that this principle results from the nature of
the government, and is secured by the tenth amendment; that
an affirmative grant of power is not exclusive, unless in its own
nature it be such that the continued exercise of it by the former
possessor is inconsistent with the grant, and that this is not
of that description.
The appellant, conceding these postulates, except the last,
contends that full power to regulate a particular subject im-
plies the whole power, and leaves no residuum; that a grant
of the whole is incompatible with the existence of a right in
another to any part of it.
Both parties have appealed to the constitution, to legislative
acts, and judicial decisions; and have drawn arguments from
GIBBONS V. 0(iDEN. 26t
all these sources to support and illustrate the propositions they
respectively maintain.
The grant of the power to lay and collect taxes is, like the
power to regulate commerce, made in general terms, and has
never been understood to interfere with the exercise of the same
power by the States; and hence has been drawn an argument
which has been ^plied to the question under consideration. But
the two grants are not, it is conceived, similar in their terms or
their nature. Although many of the powers formerly exercised
by the States are transferred to the government of the Union,
yet the State governments remain, and constitute a most im-
portant part of our system. The power of taxation is indis-
pensable to their existence, and is a power which, in its own
nature, is capable of residing in, and being exercised by, differ-
ent authorities at the same time. "We are accustomed to see it
placed, for different purposes, in different hands. Taxation is
the simple operation of taking small portions from a perpetually
accumulating mass, susceptible of almost infinite division; and
a power in one to take what is necessary for certain purposes,
is not in its nature incompatible with a power in another to take
what is necessary for other purposes. Congress is authorized
to lay and collect taxes, etc., to pay the debts, and provide for
the common defense and general welfare of the United States.
This does not interfere with the power of the States to tax for
the support of their own governments; nor is the exercise of
that power by the States an exercise of any portion of the power
that is granted to the United States. In imposing taxes for State
purposes, they are not doing what congress is empowered to
do. Congress is not empowered to tax for those purposes which
are within the exclusive province of the States. "When, then,
each government exercises the power of taxation, neither is exer-
cising the power of the other. But when a State proceeds to
regulate commerce with foreign nations, or among the several
States, it is exercising the very power that is granted to con-
gress, and is doing the very thing which congress is authorized
to do. There is no analogy, then, between the power of taxa-
tion and the power of regulating commerce.
In discussing the question whether this power is still in the
States, in the case under consideration, we may dismiss from it
the inquiry, whether it is surrendered by the mere grant to con-
gress, or is retained until congress shall exercise the power. We
may dismiss that inquiry because it has been exercised, and the
regulations which congress deemed it proper to make are now
268 CASES ON CONSTITUTIONAL LAW.
in full operation. The sole question is, can a State regulate com-
merce with, foreign nations and among the States while congress
is regulating it?
The coimsel for the respondent answer this question in the
affirmative, and rely very much on the restrictions in the 10th
section as supporting their opinion. . . .
These restrictions, then, are on the taxing power, not on that
to regulate commerce ; and presuppose the existence of that which
they restrain, not of that which they do not purport to restrain.
But the inspection laws are said to be regulations of com-
merce, and are certainly recognized in the constitution as being
passed in the exercise of a power remaining with the States.
That inspection laws may have a remote and considerable
influence on commerce, will not be denied; but that a power to
regulate commerce is the source from which the right to pass
them is derived, cannot be admitted. The object of inspection
laws is to improve the quality of articles produced by the labor
of a country, to fit them for exportation, or it may be for do-
mestic use. They act upon the subject before it becomes an
article of foreign commerce or of commerce among the States,
and prepare it for that purpose. They form a portion of that
immense mass of legislation which embraces everything within
the territory of a State not surrendered to a* general govern-
ment; all which can be most advantageously exercised by the
States themselves. Inspection laws, quarantine laws, health laws
of every description, as well as laws for regulating the internal
commerce of a State, and those which respect turnpike roads,
ferries, etc., are component parts of this mass.
No direct general power over these objects is granted to con-
gress; and, consequently, they remain subject to State legisla-
tion. If the legislative power of the Union can reach them, it
must be for national purposes; it must be where the power is
expressly given for a special purpose, or is clearly incidental
to some power which is expressly given. It is obvious that the
government of the Union, in the exercise of its express powers, —
that, for example, of regulating commerce with foreign nations
and among the States, — ^may use means that may also be em-
ployed by a State in the exercise of its acknowledged powers;
that, for example, of regulating commerce within the State. If
congress license vessels to sail from one port to another in the
same State, the act is supposed to be necessarily incidental to
the power expressly granted to congress, and implies no claim
of a direct power to regulate the purely internal commerce of
GIBBONS V. OGDEN. 269
a State, or to act directly on its system of police. So if a State,
in passing laws on subjects acknowledged to be within its con-
trol, and with a view to those subjects, shall adopt a measure of
the same character with one which congress niay adopt, it does
not derive its authority from the particular power which has
been granted, but from some other which remains with the State,
and may be executed by the same means. All experience shows
that the same measures, or measures scarcely distinguishable
from each other, may flow from distinct powers; but this does
not prove that the powers themselves are identical. Although
the means used in their execution may sometimes approach each
other so nearly as to be confounded, there are other situations
in which they are sufficiently distinct to establish their indi-
viduality.
In our complex system, presenting the rare and difficult scheme
of one general government whose action extends over the whole,
but which possesses only certain enumerated powers; and of
numerous State governments, which retain and exercise all pow-
ers not delegated to the Union, contests respecting power must
arise. Were it even otherwise, the measures taken by the re-
spective governments to execute their acknowledged powers
would often be of the same description, and might sometimes
interfere. This, however, does not prove that the one is exer-
cising, or has a right to exercise, the powers of the other.
The acts of congress, passed in 1796 and 1799, 1 Stats, at
Large, 474, 619, empowering and directing the officers of the
general government to conform to, and assist in, the execution
of the quarantine and health laws of a State, proceed, it is said,
upon the idea that these laws are constitutional. It is undoubt-
edly true that they do proceed upon that idea; and the consti-
tutionality of such laws has never, so far as we are informed,
been denied. But they do not imply an acknowledgment that
a State may rightfully regulate commerce with foreign nations,
or among the States ; for they do not imply that such laws are
an exercise of that power, or enacted with a view to it. On the
contrary, they are treated as quarantine and health laws, are
so denominated in the acts of Congress, and are considered as
flowing from the acknowledged power of a State to provide for
the health of its citizens. But as it was apparent that some of
the provisions made for this purpose, and in virtue of this
power, might interfere with, and be affected by, the laws of the
United States made for the regulation of commerce, congress, in
that spirit of harmony and conciliation which ought always to
270 CASES ON CONSTITUTIONAL LAW.
characterize the conduct of governments standing in the rela-
tion which' that of the Union and those of the States bear to
each other, has directed its of&cers to aid in the execution of
these laws; and has, in some measure, adapted its own legisla-
tion to this object by making provisions in aid of those of the
States. But in making these provisions the opinion is unequivo-
cally manifested that congress may control the State laws,
so far as it may be necessary to control them, for the regulation
of commerce.
The act passed in 1803, 3 Stats, at Large, p. 529, prohibiting
the importation of slaves into any State which shall itself pro-
hibit their importation, implies, it is said, an admission that the
States possessed the power to exclude or admit them ; from which
it is inferred that they possess the same power with respect
to other articles.
If this inference were correct; if this power was exercised,
not under any particular clause in the constitution, but in vir-
tue of a general right over the subject of commerce, to exist as
long as the constitution itself, — it might now be exercised. Any
State might now import African slaves into its own territory.
But it is obvious that the power of the States over this subject,
previous to the year 1808, constitutes an exception to the power
of congress to regulate commerce, and the exception is expressed
in such words as to manifest clearly the intention to continue
the pre-existing right of the States to admit or exclude for a
limited period. The words are, "the migration or importation
of such persons as any of the States now existing shall think
proper to admit, shall not be prohibited by the congress prior
to the year 1808." The whole object of the exception is, to pre-
serve the power to those States which might be disposed to exer-
cise it; and its language seems to the court to convey this idea
unequivocally. The possession of this particular power, then,
during the time limited in the constitution, cannot be admitted
to prove the possession of any other similar power.
It has been said that the act of August 7, 1789, 1 Stats, at
Large, 54, acknowledges a concurrent power in the States to
regulate the conduct of pilots, and hence is inferred an admis-
sion of their concurrent right with congress to regulate com-
merce with foreign nations and amongst tlie States. But this
inference is not, we think, justified by the fact. Although con-
gress cannot enable a State to legislate, congress may adopt the
provisions of a State on any subject. "When the government of
the Union was brought into existence, it found a system for the
GIBBONS V. OGDEN. 271
regulation of its pilots in full force in every State. The act
which has been mentioned adopts this system, and gives it the
same validity as if its provisions had been specially made by
congress. But the act, it may be said, is prospective also, and
the adoption of laws to be made in future presupposes the right
in the maker to legislate on the subject.
The act unquestionably manifests an intention to leave this
subject entirely to the States until congress should think proper
to interpose ; but the very enactment of such a law indicates an
opinion that it was necessary; that the existing system would
not be applicable to the new state of things unless expressly ap-
plied to it by congress. But this section is confined to pilots
within the ' ' bays, inlets, rivers, harbors, and ports of the United
States," which are, of course, in whole or in part, also within
the limits of some particular State. The acknowledged power of
a State to regulate its police, its domestic trade, and to govern
its own citizens, may enable it to legislate on this subject to a
considerable extent ; and the adoption of its system by congress,
and the application of it to the whole subject of commerce, does
not seem to the court to imply a right in the States so to apply
it of their own authority. But the adoption of the State system
being temporary, being only "until further legislative provi-
sion shall be made by congress," shows conclusively an opinion
that congress could control the whole subject, and might adopt
the system of the States, or provide one of its own.
A State, it is said, or even a private citizen, may construct
lighthouses. But gentlemen must be aware that if this proves a
power in a State to regulate commerce, it proves that the same
power is in the citizen. States, or individuals who own lands,
may, if not forbidden by law, erect on those lands what buildings
they please; but this power is entirely distinct from that of
regulating commerce, and may, we presume, be restrained if
exercised so as to produce a public mischief.
These acts were cited at the bar for the purpose of showing an
opinion in congress that the States possess, concurrently with
the legislature of the Union, the power to regulate commerce
with foreign nations and among the States. Upon reviewing
them, we think they do not establish the proposition they were
intended to prove. They show the' opinion that the States retain
powers enabling them to pass the laws to which allusion has been
made, not that those laws proceed from the particular power
which has been delegated to congress.
It has been contended by the counsel for the appellant that,
272 CASES ON CONSTITUTIONAL LAW.
as the word to "regulate" implies in its nature full power over
the thing to be regulated, it excludes, necessarily, the action of
all others that would perform, the same operation on the same
thing. That regulation is designed for the entire result, applying
to those parts which remain as they were, as well as to those
which are altered. It produces a uniform whole, which is as
much disturbed and deranged by changing what the regulating
power designs to leave untouched, as that on which it has oper-
ated.
There is great force in this argument, and the court is not
satisfied that it has been refuted.
Since, however, in exercising the power of regulating their
own purely internal affairs, whether of trading or police, the
States may sometimes enact laws, the validity of which depends
on their interfering with, and being contrary to, an act of con-
gress passed in pursuance of the constitution, the court will
enter upon the inquiry whether the laws of New York, as ex-
pounded by the highest tribunal of that State, have, in their
application to this case, come into collision with an act of con-
gress, and deprived a citizen of a right to which that act entitles
him. Should this collision exist, it will be immaterial whether
those laws were passed in virtue of a concurrent power "to regu-
late commerce with foreign nations and among the several
States, ' ' or, in virtue of a power to regulate their domestic trade
and police. In one case and the other, the acts of New York
must yield to the law of congress, and the decision sustaining
the privilege they confer, against a right given by a law of the
Union, must be erroneous. .
In pursuing this inquiry at the bar, it has been said that the
constitution does not confer the right of intercourse between
State and State. That right derives its source from those laws
whose authority is acknowledged by civilized man throughout
the world. This is true. The constitution found it an existing
right, and gave to congress the power to regulate it. In the
exercise of this power, congress has passed "An act for enroll-
ing or licensing ships or vessels to be employed in the coasting
trade and fisheries, and for regulating the same. ' ' The counsel
for the respondent contend that this act does not give the right
to sail from port to port, but confines itself to regulating a pre-
existing right, so far only as to confer certain privileges on
enrolled and licensed vessels in its exercise.
It will at once occur that when a legislature attaches certain
privileges and exemptions to the exercise of a right over which
GIBBONS V. OGDEN. 273
its control is absolute, the law must imply a power to exercise
the right. The privileges are gone if the right itself be anni-
hilated. It would be contrary to all reason and to the course of
human affairs to say that a State is unable to strip a vessel of
the particular privileges attendant on the exercise of a right,
and yet may annul the right itself ; that the State of New York
cannot prevent an enrolled and licensed vessel proceeding from
Elizabethtown, in New Jersey, to New York, from enjoying, in
her course and on her entrance into port, all the privileges con-
ferred by the act of congress, but can shut her up in her own
port, and prohibit altogether her entering the waters and ports
of another State. To the court it seems very clear that the
whole act on the subject of the coasting trade, according to
those principles which govern the construction of statutes, im-
plies unequivocally an authority to licensed vessels to carry on
the coasting trade.
But we wiU proceed briefly to notice those sections which bear
more directly on the subject.
The first section declares that vessels enrolled by virtue of a
previous law, and certain other vessels, enrolled as described in
that act, and having a license in force, as is by the act required,
"and no others, shall be deemed ships or vessels of the United
States, entitled to the privileges of ships or vessels employed in
the coasting trade."
This section seems to the court to contain a positive enactment
that the vessels it describes shall be entitled to the privileges of
ships or vessels employed in the coasting trade. These privileges
cannot be separated from the trade, and cannot be enjoyed un-
less the trade may be prosecuted. The grant of the privilege is
an idle, empty form, conveying nothing, unless it convey the
right to which the privilege is attached, and in the exercise of
which its whole value consists. To construe these words other-
wise than as entitling the ships or vessels described to carry on
the coasting trade would be, we think, to disregard the apparent
intent of the act.
The fourth section directs the proper officer to grant to a vessel
qualified to receive it, "a license for carrying on the coasting
trade;" and prescribes its form. After reciting the compliance
of the applicant with the previous requisites of the law, the oper-
ative words of the instrument are, "license is hereby granted for
the said steamboat Bellona to be employed in carrying on the
coasting trade for one year from the date hereof, and no longer."
These are not the words of the officer ; they are the words of
B. C. Ii.— 18
274 CASES ON CONSTITUTIONAL LAW.
the legislature; and convey as explicitly the authority the act
intended to give, and operate as effectually, as if they had been
inserted in any other part of the act than in the license itself.
The word "license" means permission, or authority; and a
license to do any particular thing is a permission or authority to
do that thing ; and if granted by a person having power to grant
it, transfers to the grantee the right to do whatever it purports
to authorize. It certainly transfers to him all the right which
the grantor can transfer to do what is within the terms of the
license. Would the validity or effect of such an instrument be
questioned by the respondent if executed by persons claiming
regularly under the laws of New York?
The license must be understood to be what it purports to be, —
a legislative authority to the steamboat Bellona "to be employed
in carrying on the coasting trade for one year from this date. ' '
It has been denied that these words authorize a voyage from
New Jersey to New York. It is true that no ports are specified ;
but it is equally true that the words used are perfectly intelligi-
ble, and do confer such authority as unquestionably as if the
ports had been mentioned. The coasting trade is a term well
understood. The law has defined it; and all know its meaning
perfectly. The act describes, with great minuteness, the various
operations of a vessel engaged in it ; and it cannot, we think, be
doubted that a voyage from New Jersey to New York is one of
those operations.
Notwithstanding the decided language of the license, it has also
been maintained that it gives no right to trade, and that its sole
purpose is to confer the American character.
The answer given to this argument, that the American char-
acter is conferred by the enrollment and not by the license, is,
we think, founded too clearly in the words of the law to require
the support of any additional observations. The enrollment of
vessels designed for the coasting trade corresponds precisely with
the registration of vessels designed for the foreign trade, and
requires every circumstance which can constitute the American
character. The license can be granted only to vessels already
enrolled, if they be of the burden of twenty tons and upwards,
and requires no circumstance essential to the American char-
acter. The object of the license, then, cannot be to ascertain the
character of the vessel, but to do what it professes to do ; that is,
to give permission to a vessel already proved by her enrollment
to be American to carry on the coasting trade.
But if the license be a permit to carry on the 'coasting trade,
GIBBONS V. OGDEN. 275
the respondent denies that these boats were engaged in that
trade, or that the decree under consideration has restrained them
from prosecuting it. The boats of the appellant were, we are
told, employed in the transportation of passengers, and this is
no part of that commerce which congress may regulate.
If, as our whole course of legislation on this subject shows, the
power of congress has been universally understood in America
to comprehend navigation, it is a very persuasive, if not a con-
clusive, argument to prove that the construction is correct; and
if it be correct, no clear distinction is perceived between the
power to regulate vessels employed in transporting men for hire,
and property for hire. The subject is transferred to congress,
and no exception to the grant can be admitted which is not
proved by the words or the nature of the thing. A coasting
vessel employed in the transportation of passengers is as much a
portion of the American marine as one employed in the trans-
portation of a cargo ; and no reason is perceived why such vessel
should be withdrawn from the regulating power of that govern-
ment, which has been thought best fitted for the purpose gen-
erally. The provisions of the law respecting native seamen and
respecting ownership, are as applicable to vessels carrying men
as to vessels carrying manufactures; and no reason is per-
ceived why the power over the subject should not be placed in
the same hands. The argument urged at the bar rests on the
foundation that the power of congress does not extend to navi-
gation as a branch of commerce, and can only be applied to that
subject incidentally and occasionally. But if that foundation be
removed, we must show some plain, intelligible distinction, sup-
ported by the constitution, or by reason, for discriminating
between the power of congress over vessels employed in navi-
gating the same seas. "We can perceive no such distinction.
If we refer to the constitution, the inference to be drawn from
it is rather against the distinction. The section which restrains
congress from prohibiting the migration or importation of such
persons as any of the States may think proper to admit, until the
year 1808, has always been considered as an exception from the
power to regulate commerce, and certainly seems to class migra-
tion with importation. Migration applies as appropriately to
voluntary, as importation does to involuntary arrivals; and so
far as an exception from a power proves its existence, this sec-
tion proves that the power to regulate commerce applies equally
to the regulation of vessels employed in transporting men who
276 CASES ON CONSTITUTIONAL LAW.
pass from place to place voluntarily, and to those who pass invol-
untarily.
If the power reside in congress, as a portion of the general
grant to regulate commerce, then acts applying that power to
vessels generally must be construed as comprehending all vessels.
If none appear to be excluded b/ the language of the act, none
can be excluded by construction. Vessels have always been
employed, to a greater or less extent, in the transportation of
passengers, and have never been supposed to be, on that account,
withdrawn from the control or protection of congress. Packets
which ply along the coast, as well as those which make voyages
between Europe and America, consider the transportation of
passengers as an important part of their business. Yet it has
never been suspected that the general laws of navigation did
not apply to them.
The Duty act, sections 23 and 46, 1 Stats, at Large, 644, 661,
contains provisions respecting passengers, and shows that vessels
which transport them have the same rights, and must perform
the same duties, with other vessels. They are governed by the
general laws of navigation.
In the progress of things, this seems to have grown into a
particular employment, and to have attracted the particular
attention of government. Congress was no longer satisfied with
comprehending vessels engaged specially in this business within
those provisions which were intended for vessels generally; and
on the 2d of March, 1819, passed "An act regulating passenger
ships and vessels. " 3 Stats, at Large, 488. This wise and humane
law provides for the safety and comfort of passengers, and for
the communication of everything concerning them which may
interest the government, to the department of State, but makes
no provision concerning the entry of the vessel, or her conduct
in the waters of the United States. This, we think, shows con-
clusively the sense of congress (if, indeed, any evidence to that
point could be required), that the pre-existing regulations com-
prehended passenger ships among others ; and in prescribing the
same duties, the legislature must have considered them as pos-
sessing the same rights.
If, then, it were even true, that The Bellona and The Stoud-
inger were employed exclusively in the conveyance of passengers
between New York and New Jersey, it would not follow that this
occupation did not constitute a part of the coasting trade of the
United States, and was not protected by the license annexed to
the answer. But we cannot perceive how the occupation of these
GIBBONS V. OGDEN. 277
vessels can be drawn into question in the case before the court.
The laws of New York, which grant the exclusive privilege set
up by the respondent, take no notice of the employment of ves-
sels, and relate only to the principle by which they are propelled.
Those laws do not inquire whether vessels are engaged in trans-
porting men or merchandise, but whether they are moved by
steam or wind. If by the former, the' waters of New York are
closed against them, though their cargoes be dutiable goods,
which the laws of the United States permit them to enter and
deliver in New York. If by the latter, those waters are free to
them, though they should carry passengers only. In conformity
with the law, is the bill of the plaintiff in the State court. The
bill does not complain that The Bellona and The Stoudinger
carry passengers, but that they are moved by steam. This is
the injury of which he complains, and is the sole injury against
the' continuance of which he asks relief. The bill does not even
allege, specially, that those vessels were employed in the trans-
portation of passengers, but says, generally, that they were em-
ployed "in the transportation of passengers, or otherwise." The
answer avers only that they are employed in the coasting trade,
and insists on the right to carry on any trade authorized by the
license. No testimony is taken, and the writ of injunction and
decree restrain these licensed vessels, not from carrying passen-
gers, but from being moved through the waters of New York by
steam, for any purpose whatever.
The questions, then, whether the conveyance of passengers be'
a part of the coasting trade, and whether a vessel can be pro-
tected in that occupation by a coasting license, are not, and
cannot be, raised in this ease. The' real and sole question seems
to be, whether a steam machine, in actual use, deprives a vessel
of the privileges conferred by a license.
In considering this question, the first idea which presents
itself, is that the laws of congress for the regulation of com-
merce, do not look to the principle of which vessels are moved.
That subject is left entirely to individual discretion; and in that
vast and complex system of legislative enactment concerning it,
which embraces everything which the legislature thought it
necessary to notice, there is not, we believe, one word respecting
the peculiar principle by which vessels are propelled through the
water, except what may be found in a single act, 2 Stats, at
Large, 694, granting a particular privilege to steamboats. With
this exception, every act, either prescribing duties, or granting
privileges, applies to every vessel, whether navigated by the
278 CASES ON CONSTITUTIONAL LAW.
instrumentality of wind or fire, of sails or machinery. The
whole weight of proof, then, is thrown upon him who would
introduce a distinction to which the words of the law give no
countenance.
If a real difference could be admitted to exist between vessels
carrying passengers and others, it has already been observed that
there is no fact in this case which can bring up that question.
And, if the occupation of steamboats be a matter of such general
notoriety that the court may be presumed to know it, although
not specially informed by the record, then we deny that the trans-
portation of passengers is their exclusive occupation. It is a
matter of general history, that, in our western waters, their
principal employment is the transportation of merchandise ; and
all know, that in the waters of the Atlantic they are frequently
so employed.
But all inquiry into this subject seems to the court to be put
completely at rest, by the act already mentioned, entitled, "An
act for the enrolling and licensing of steamboats. ' '
This act authorizes a steamboat employed, or intended to be
employed, only in a river or bay of the United States, owned
wholly or in part by an alien, resident within the United States,
to be enrolled and licensed as if the same belonged to a citizen of
the United States.
This act demonstrates the opinion of congress, that steamboats
may be enrolled and licensed, in common with vessels using sails.
They are, of course, entitled to the same privileges, and can no
more be restrained from navigating waters, and entering ports
which are free to such vessels, than if they were' wafted on their
voyage by the winds, instead of being propelled by the agency
of fire. The one element may be as legitimately used as the
other, for every commercial purpose authorized by the laws of
the Union ; and the act of a State' inhibiting the use of either to
any vessel having a license under the act of congress, comes, we
think, in direct collision with that act.
As this decides the cause, it is unnecessary to enter in an exam-
ination of that part, of the constitution which empowers congress
to promote the progress of science and the useful arts. .
[Mr. Justice Johnson delivered a concurring opinion.]
Note. — In the exercise of its power to regulate interstate and foreign
commerce, Congress has enacted several statutes which not only restrain the
States, but act directly upon individuals and corporations engaged in such
GIBBONS V. OGDEN. 279
commerce and impose restrictions or create affirmative duties. Among the
most important are the following:
The Interstate Commerce Act, first enacted in 1887, and many times
amended. The predominant purpose of its enactment was to prevent unrea-
sonable and discriminatory rates (Texas & Pacific Ey. v. Interstate Com-
merce Commission [1896], 162 U. S. 197, 211), but the Interstate Commerce
Commission, the organ created for the administration of the Act, was not
empowered to fix rates (Cincinnati, New Orleans & Texas Ey. v. Interstate
Commerce Commission [1896], 162 IT. S. 184). By the Hepburn Act of 1906
this power was conferred upon the Commission, transportation companies
were forbidden to transport their own commodities (United States v. Dela-
ware & Hudson Ey. [1909], 213 IT. S. 366), the giving of free passes was
regulated, pipe lines, express companies and sleeping car companies were
brought within the provisions of the Act, ajid the supervisory powers of the
Commission were much enlarged. In 1910 the jurisdiction of the Com-
mission was extended over telegraph and telephone companies, and it was
empowered to suspend advances in rates. By the Panama Act of 1912 the
power of the Commission was extended to transportation by both water and
rail, but not over commerce that moved wholly by water. In 1913 the Com-
mission was directed to undertake a physical valuation of all the property
owned by every carrier subject to its jurisdiction.
The Anti-Tbust Act of 1890 provided that "every contract, combina-
tion in the form of trust, or otherwise, or conspiracy in restraint of trade
or commerce among the several States, or with foreign nations, is hereby
declared to be illegal. ' ' This act has been applied to combinations among
transportation companies (United States v. Trans-Missouri Freight Associa-
tion [1897], 166 U. S. 290) ; to holding companies which interfere with the
freedom of interstate commerce (United States v. Northern Securities Co.
[1904], 193 U. S. 197) ; to combinations of manufacturers for the purpose
of controlling the course of trade (Addystone Pipe & Steel Co. v. United
States [1899], 175 U. S. 211; Montague v. Lowry [1904], 193 U. S. 38);
and to labor unions conducting a boycott which interfered with interstate
commerce (Loewe v. Lawler [1908], 208 U. S. 274).
The Employers ' Liability Act of 1906 considerably modified the fellow-
servant rule of the common law as applied to the employees of carriers. As
the act applied to persons in both intrastate and interstate commerce, it was
declared unconstitutional in respect to the former in Employers' Liability
Cases (1908), 207 U. S. 463, but was held valid as to carriers in the Dis-
trict of Columbia and the Territories in El Paso & Northeastern Ey. v.
Gutierrez (1909), 215 U. S. 87. In order to meet the objections raised by
the Supreme Court, Congress, in 1908, passed a second act which is con-
fined to persons actually engaged in interstate commerce. This was sus-
tained in Second Employers' Liability Cases (1912), 223 U. S. 1.
The Federal Safety Appliance Acts, enacted in 1893 and the years fol-
lowing, requiring interstate trains to be equipped with certain safety de-
vices, were upheld in St. Louis & Iron Mountain Ey. v. Taylor (1908), 210
U. S. 281.
The Hours op Service Act of 1907, restricting the hours of labor of
railway employees operating trains moving in interstate commerce, was up-
held in Baltimore & Ohio Ry. v. Interstate Commerce Commission (1911),
221 U. S. 612.
280 CASES ON CONSTITUTIONAL LAW.
The Fedeeal Teade Commission Act of 1914 creates the Federal Trade
CommisBion. The gist of the act is contained in the provision ' ' that unf aii
methods of competition in commerce are hereby declared unlawful." The
meaning of this phrase yet remains to be determined.
The Clayton Anti-Trust Act of 1914 undertakes to prevent all persone,
engaged in interstate commerce from discriminating in prices between dif-
ferent purchasers of commodities or to accord preferential treatment te
one person over another. Corporations engaged in interstate commerce ate
forbidden to purchase the stock of another corporation when such purchase
would substantially diminish competition, and the right of individuals to act
as director in more than one corporation is restricted. The relation between
carriers and the corporations from which they obtain service or supplies is
also regulated.
BROWN ET AL. v. THE STATE OF MARYLAND.
Supreme Court of the United States. 1827.
12 Wheaton, 419; 6 Lawyers' Ed. 678.
Error to the Court of Appeals of Maryland.
Marshall, C. J., delivered the opinion of the court.
This is a writ of error to a judgment rendered in the court of
appeals of Maryland, affirming a judgment of the city court
of Baltimore, on an indictment found in that court against the
plaintiffs in error, for violating an act of the legislature of
Maryland. The indictment was founded on the 2d section
of that act, which is in these words: "And be it enacted that all
importers of foreign articles or commodities, of dry goods, wares,
or merchandise, by bale or package, or of wine, rum, brandy,
whiskey, and other distilled spirituous liquors, &e., and other
persons selling the same by wholesale, bale or package, hogshead,
barrel, or tierce, shall, before they are authorized to sell, take out
a license, as by the original act is directed, for which they shall
pay fifty dollars; and in case of neglect or refusal to take out
such license, shall be subject to the same penalties and forfeitures
as are prescribed by the original act to which this is a supple-
ment. " The indictment charges the plaintiffs in error with hav-
ing imported and sold one package of foreign dry goods without
having license to do so. A judgment was rendered against them,
on demurrer, for the penalty which the act prescribes for the
offense ; and that judgment is now before this court.
This cause depends entirely on the question whether the legis-
lature of a State can constitutionally require the importer of
BROWN V. STATE OF MARYLAND. 281
foreign articles to take out a license from the State, before he
shall be permitted to sell a bale or package so imported.
It has been truly said, that the presumption is in favor of
every legislative act, and that the whole burden of proof lies on
him who denies its constitutionality. The plaintiffs in error take
the burden upon themselves, and insist that the act under con-
sideration is repugnant to two provisions in the constitution of
the United States.
1. To that which declares that "no State shall, without the
consent of Congress, lay any imposts, or duties on imports or
exports, except what may be absolutely necessary for executing
its inspection laws. ' '
2. To that which declares that Congress shall have power "to
regulate commerce with foreign nations, and among the several
States, and with the Indian tribes. ' '
1. The first inquiry is into the extent of the prohibition upon
States "to lay any imposts or duties on imports or exports."
The counsel for the State of Maryland would confine this pro-
hibition to laws imposing duties on the act of importation or
exportation. The counsel for the plaintiffs in error give them a
much wider scope.
In performing the delicate and important duty of construing
clauses in the constitution of our country, which involve con-
flicting powers of the government of the Union, and of the
respective States, it is proper to take a view of the literal mean-
ing of the words to be expounded, of their connection with other
words, and of the general objects to be accomplished by the
prohibitory clause, or by the grant of power.
"What, then, is the meaning of the words, "imposts, or duties
on imports or exports?"
An impost, or duty on imports, is a custom or a tax levied on
articles brought into a country, and is most usually secured be-
fore the importer is allowed to exercise his rights of ownership
over them, because evasions of the law can be prevented more
certainly by executing it while the articles are' in its custody.
It would not, however, be less an impost or duty on the articles,
if it were to be levied on them after they were landed. The'
policy and consequent practice of levying or securing the duty
before, or on entering the port, does not limit the power to that
state of things, nor, consequently, the prohibition, unless the true'
meaning of the clause so confines it. What, then, are ' ' imports ' ' ?
The lexicons inform us they are "things imported." If we
appeal to usage for the meaning of the word, we shall receive
282 CASES ON CONSTITUTIONAL LAW.
the same answer. They are the' articles themselves which are
brought into the country. "A duty on imports," then, is not
merely a duty on the act of importation, but is a duty on the
thing imported. It is not, taken in its literal sense, confined to
a duty levied while the article is entering the country, but ex-
tends to a duty levied after it has entered the country. The
succeeding words of the sentence which limit the prohibition,
show the extent in which it was understood. The limitation is,
"except what may be absolutely necessary for executing its
inspection laws." Now, the inspection laws, so far as they act
upon articles for exportation, are generally executed on land,
before the article is put on board the vessel; so far as they act
upon importations they are generally executed upon articles
which are landed. The tax or duty of inspection, then, is a tax
which is frequently, if not always, paid for service performed
on land, while the article is in the bosom of the country. Yet
this tax is an exception to the prohibition on the States to lay
duties on imports or exports. The exception was made because
the tax would otherwise have been within the prohibition.
If it be a rule of interpretation to which all assent, that the
exception of a particular thing from general words, proves that,
in the opinion of the lawgiver, the thing excepted would be
within the general clause had the exception not been made, we
know no reason why this general rule should not be as applicable
to the constitution as to other instruments. If it be applicable,
then this exception in favor of duties for the support of inspec-
tion laws, goes far in proving that the framers of the constitution
classed taxes of a similar character with those imposed for the
purposes of inspection, with duties on imports and exports, and
supposed them to be prohibited.
If we quit this narrow view of the subject, and passing from
the literal interpretation of the words, look to the objects of the
prohibition, we find no reason for withdrawing the act under
consideration from its operation.
From the vast inequality between the different States of the
confederacy, as to commercial advantages, few subjects were
viewed with deeper interest, or excited more irritation, than the
manner in which the several States exercised, or seemed disposed
to exercise, the power of laying duties on imports. From motives
which were deemed sufficient by the statesmen of that day, the
general power of taxation, indispensably necessary as it was, and
jealous as the States were of any encroachment upon it, was so
far abridged as to forbid them to touch imports or exports, with
BROWN Y. STATE OF MARYLAND. 283
the single exception which has been noticed. Why are they
restrained from imposing these duties ? Plainly, because, in the
general opinion, the interest of all would be best promoted by
placing that whole subject under the control of congress.
Whether the prohibition to "lay imposts, or duties on imports or
exports, ' ' proceeded from an apprehension that the power might
be so exercised as to disturb that equality among the States
which was generally advantageous, or that harmony between
them which it was desirable to preserve, or to maintain unim-
paired our commercial connections with foreign nations, or to
confer this source of revenue on the government of the Union,
or whatever other motive might have induced the prohibition,
it is plain that the object would be as completely defeated by a
power to tax the article in the hands of the importer the instant
it was landed, as by a power to tax it while entering the port.
There is no difference, in effect, between a power to prohibit the
sale of an article and a power to prohibit its introduction into the
country. The one would be a necessary consequence of the other.
No goods would be imported if none could be sold. No object
of any description can be accomplished by laying a duty on im-
portation, which may not be accomplished with equal certainty
by laying a duty on the thing imported in the hands of the
importer. It is obvious that the same power which imposes a
light duty can impose a very heavy one, one which amounts to a
prohibition. Questions of power do not depend on the degree
to which it may be exercised. If it may be exercised at all, it
must be exercised at the will of those in whose hands it is placed.
If the tax may be levied in this form by a State, it may be
levied to an extent which wiU defeat the revenue by impost, so
far as it is drawn from importations into the particular State.
We are told that such wild and irrational abuse of power is not
to be apprehended, and is not to be taken into view when dis-
cussing its existence. All power may be abused ; and if the fear
of its abuse is to constitute an argument against its existence, it
might be urged against the existence of that which is universally
ackaowledged, and which is indispensable to the general safety.
The States will never be so mad as to destroy their own com-
merce, or even to lessen it.
We do not dissent from these general propositions. We do
not suppose any State would act so unwisely. But we do not
place the question on that ground.
These arguments apply with precisely the same force against
the whole prohibition. It might, with the same reason, be said
284 CASES ON CONSTITUTIONAL LAW.
that no State would be so blind to its own interests as to lay
duties on importation which would either prohibit or diminish
its trade. Yet the framers of our constitution have thought this
a power which no State ought to exercise. Conceding, to the full
extent which is required, that every State would, in its legisla-
tion on this subject, provide judiciously for its own interests, it
cannot be conceded that each would respect the interests of
others. A duty on imports is a tax on the article which is paid
by the consumer. The great importing States would thus levy
a tax on the non-importing States, which would not be less a tax
because their interest would afford ample security against its
ever being so heavy as to expel commerce from their ports. This
would necessarily produce countervailing measures on the part
of those States whose situation was less favorable to importation.
For this, among other reasons, the whole power of laying duties
on imports was with a single and slight exception, taken from
the States. "When we are inquiring whether a particular act is
within this prohibition, the question is not, whether a State
may so legislate as to hurt itself, but whether the act is within
the words and mischief of the prohibitory clause. It has already
been fehown, that a tax on the article in the hands of the im-
porter, is within its words; and we think it too clear for con-
troversy, that the same tax is within its mischief. "We think it
unquestionable, that such a tax has precisely the same tendency
to enhance the price of the article, as if imposed upon it while
entering the port.
The counsel for the State of Maryland, insist, with great rea-
son, that if the words of the prohibition be taken in their utmost
latitude, they will abridge the power of taxation, which all admit
to be essential to the States, to an extent which has never yet
been suspected, and will deprive them of resources which are
necessary to supply revenue, and which they have heretofore
been admitted to possess. These words must, therefore, be con-
strued with some limitations; and, if this be admitted, they in-
sist that entering the country is the point of time when the
prohibition ceases, and the power of the State to tax commences.
It may be conceded, that the words of the prohibition ought
not to be pressed to their utmost extent; that in our complex
system, the object of the powers conferred on the government
of the Union, and the nature of the often conflicting powers
which remain in the States, must always be taken into view, and
may aid in expounding the words of any particular clause. But,
while we admit that sound principles of construction ought to
BROWN V. STATE OF MARYLAND. 285
restrain all courts from carrying the words of the prohibition
beyond the object the constitution is intended to secure; that
there must be a point of time when the prohibition ceases, and
the power of the State to tax commences ; we cannot admit that
this point of time is the instant that the article enters the coun-
try. It is, we think, obvious that this construction would defeat
the prohibition.
The constitutional prohibition on the States to lay a duty on
imports, a prohibition which a vast majority of them must feel
an interest in preserving, may certainly come in conflict with
their acknowledged power to tax persons and property within
their territory. The power, and the restriction on it, though
quite distinguishable when they do not approach each other,
may yet, like the intervening colors between white and black,
approach so nearly as to perplex the understanding, as colors
perplex the vision in marking the distinction between them. Yet
the distinction exists, and must be marked as the cases arise.
Till they do arise, it might be premature to state any rule as
being universal in its application. It is sufficient for the pres-
ent to say, generally, that when the importer has so acted upon
the thing imported, that it has become incorporated and mixed
up with the mass of property in the country, it has, perhaps,
lost its distinctive character as an import, and has become sub-
ject to the taxing power of the State; but while remaining the
property of the importer, in his warehouse, in the original form
or package in which it was imported, a tax upon it is too plainly
a duty on imports to escape the prohibition in the constitution.
The counsel for the plaintiffs in error contend that the im-
porter purchases, by payment of the duty to the United States,
a right to dispose of his merchandise, as well as to bring it into
the country ; and certainly the argument is supported by strong
reason, as well as by the practice of nations, including our own.
The object of importation is sale; it constitutes the motive for
paying the duties ; and if the United States possesses the power
of conferring the right to sell, as the consideration for which
the duty is paid, every principle of fair dealing requires that
they should be understood to confer it. The practice of the most
commercial nations conforms to this idea. Duties, according to
that practice, are charged on those articles only which are in-
tended for sale or consumption in the country. Thus, sea stores,
goods imported and re-exported in the same vessel, goods landed
and carried over land for the purpose of being re-exported from
some other port, goods forced in by stress of weather, and land-
286 CASES ON CONSTITUTIONAL LAW.
ed, but not for sale, are exempted from the payment of duties.
The whole course of legislation on the subject shows that, in the
opinion of the legislature, the right to sell is connected with the
payment of duties.
The counsel for the defendant in error have endeavored to
illustrate their proposition, that the constitutional prohibition
ceases the instant the goods enter the country, by an array of
the consequences which they suppose must follow the denial of
it. If the importer acquires the right to sell by the payment of
duties, he may, they say, exert that right when, where, and as
he pleases, and the State cannot regulate it. He may sell by
retail, at auction, or as an itinerant peddler. He may introduce
articles, as gunpowder, which endanger a city, into the midst
of its population ; he may introduce articles which endanger the
public health, and the power of self-preservation is denied. An
importer may bring in goods, as plate, for his own use, and thus
retain much valuable property exempt from taxation.
These objections to the principle, if well founded, would cer-
tainly be entitled to serious consideration. But we think they
win be found, on examination, not to belong necessarily to the
principle, and, consequently, not to prove that it may not be re-
sorted to with safety as a criterion by which to measure the
extent of the prohibition.
This indictment is against the importer, for selling a package
of dry goods in the form in which it was imported, without a
license. This state of things is changed if he sells them, or other-
wise mixes them with the general property of the State, by break-
ing up his packages, and traveling vidth them as an itinerant
peddler. In the first case, the tax intercepts the import, as
an import, in its way to become incorporated with the general
mass of property, and denies it the privilege of becoming so in-
corporated until it shall have contributed to the revenue of the
State. It denies to the importer the right of using the privilege
which he has purchased from the United States, until he shall
have also purchased it from the State. In the last cases, the
tax finds the article already incorporated with the mass of prop-
erty by the act of the importer. He has used the privilege he
has purchased, and has himself mixed them up with the com-
mon mass, and the law may treat them as it finds them. The
same observations apply to plate, or other furniture used by the
importer.
So, if he sells by auction. Auctioneers are persons licensed by
the State, and if the importer chooses to employ them, he can as
BROWN V. STATE OF MARYLAND. 287
little object to paying for this service, as for any other for which
he may apply to an officer of the State. The right of sale may
very well be annexed to importation, without annexing to it, also,
the privilege of using the officers licensed by the State to make
sales in a peculiar way.
The power to direct the removal of gunpowder is a branch of
the police power, which unquestionably remains, and ought to
remain, with the States. If the possessor stores it himself out
of town, the removal cannot be a duty on imports, because it con-
tributes nothing to the revenue. If he prefers placing it in a
public magazine, it is because he stores it there, in his own opin-
ion, more advantageously than elsewhere. We are not sure that
this may not be classed among inspection lavra. The removal or
destruction of infectious or unsound articles is, undoubtedly, an
exercise of that power, and forms an express exception to the pro-
hibition we are considering. Indeed, the laws of the United
States expressly sanction the health laws of a State.
The principle, then, for which the plaintiffs in error con-
tend, that the importer acquires a right, not only to bring the
articles into the country, but to mix them with the common mass
of property does not interfere with the necessary power of taxa-
tion which is acknowledged to reside in the States, to that dan-
gerous extent which the counsel for the defendants in error seem
to apprehend. It carries the prohibition in the constitution no
further than to prevent the States from doing that which it was
the great object of the constitution to prevent.
But if it should be proved, that a duty on the article itself
would be repugnant to the constitution, it is still argued that
this is not a tax upon the article, but on the person. The State,
it is said, may tax occupations, and this is nothing more.
It is impossible to conceal from ourselves that this is varying
the form without varying the substance. It is treating a pro-
hibition which is general, as if it were confined to a particular
mode of doing the forbidden thing. All must perceive that a
tax on the sale of an article, imported only for sale, is a tax
on the article itself. It is true the State may tax occupations
generally, but this tax must be paid by those who employ the
individual, or is a tax on his business. The lawyer, the physi-
cian, or the mechanic, must either charge more on the article in
which he deals, or the thing itself is taxed through his person.
This the State has a right to do, because no constitutional pro-
hibition extends to it. So, a tax on the occupation of ah im-
porter is, in like manner, a tax on importation. It must add to
288 CASES ON CONSTITUTIONAL LAW.
the price of the article, and be paid by the consumer, or by the
importer himself, in like manner as a direct duty on the article
itself would be made. This the State has not a right to do, be-
cause it is prohibited by the constitution.
In support of the argument that the prohibition ceases the
instant the goods are brought into the country, a comparison has
been drawn between the opposite words export and import. As,
to export, it is said, means only to carry goods out of the coun-
try ; so, to import, means only to bring them into it. But, sup-
pose we extend this comparison to the two prohibitions. The
States are forbidden to lay a duty on exports, and the United
States are forbidden to lay a tax or duty on articles exported
from any State. There is some diversity in language, but none
is perceivable in the act which is prohibited. The United States
have the same right to tax occupations which is possessed by the
States. Now, suppose the United States should require every
exporter to take out a license, for which he should pay such tax
as Congress might think proper to impose; would government
be permitted to shield itself from the just censure to which this
attempt to evade the prohibitions of the constitution would ex-
pose it, by saying that this was a tax on the person, not on the
article, and that the legislature had a right to tax occupations?
Or, suppose revenue cutters were to be stationed off the coast
for the purpose of levying a duty on all merchandise found in
vessels which were leaving the United States for foreign coun-
tries; would it be received as an excuse for this outrage, were
the government to say that exportation meant no more than
carrying goods out of the country, and as the prohibition to lay
a tax on imports, or things imported, ceased the instant they
were brought into the country, so the prohibition to tax articles
exported ceased when they were carried out of the country?
We think, then, that the act under which the plaintiffs in
error were indicted, is repugnant to that article of the consti-
tution which declares that "no State shall lay any impost or
duties on imports or exports."
2. Is it also repugnant to that clause in the constitution which
empowers "congress to regulate commerce with foreign nations,
and among the several States, and with the Indian tribes?"
The oppressed and degraded state of commerce previous to the
adoption of the constitution can scarcely be forgotten. It was
regulated by foreign nations with a single view to their own
interests, and our disunited efforts to counteract their restrictions
were rendered impotent by want of combination. Congress, in-
BEOWN V. STATE OF MARYLAND. 289
deed, possessed the power of making treaties; but the inability
of the federal government to enforce them had become so ap-
parent as to render that power in a great degree useless. Those
who felt the injury arising from this state of things, and those
who were capable of estimating the influence of commerce on
the prosperity of nations, perceived the necessity of giving the
control over this important subject to a single government. It
may be doubted whether any of the evils proceeding from the
feebleness of the federal government, contributed more to that
great revolution which introduced the present system, than the
deep and general conviction that commerce ought to be regulated
by congress. It is not, therefore, matter of surprise, that the
grant should be as extensive as the mischief, and should com-
prehend all foreign commerce, and all commerce among the
States. To construe the power so as to impair its efScacy, would
tend to defeat an object, in the attainment of which the Ameri-
can public took, and justly took, that strong interest which arose
from a full conviction of its necessity.
What, then, is the just extent of a power to regulate com-
merce with foreign nations, and among the several States?
This question was considered in the case of Gibbons v. Ogden,
9 Wheat. 1, in which it was declared to be complete in itself,
and to acknowledge no limitations other than are prescribed by
the constitution. The power is co-extensive with the subject on
which it acts, and cannot be stopped at the external boundary of
a Stgte, but must enter its interior.
We deem it unnecessary now to reason m support of these
propositions. Their truth is proved by facts continually before
our eyes, and was, we think, demonstrated, if they could require
demonstration, in the case already mentioned.
If this power reaches the interior of a State, and may be there
exercised, it must be capable of authorizing the sale of those
articles which it introduces. Commerce is intercourse: one of
its most ordinary ingredients is traffic. It is inconceivable, that
the power to authorize this traffic, when given in the most com-
prehensive terms, with the intent that its efficacy should be com-
plete, should cease at the point when its continuance is indis-
pensable to its value. To what purpose should the power to
allow importation be given, unaccompanied with the power to
authorize a sale of the thing imported? Sale is the object of
importation, and is an essential ingredient of that intercourse,
of which importation constitutes a part. It is as essential an
ingredient, as indispensable to the existence of the entire thing,
E. C. L.— 19
290 CASES ON CONSTITUTIONAL LAW.
then, as importation itself. It must be considered as a com-
ponent part of the power to regulate commerce. Congress has a
right, not only to authorize importation, but to authorize the
importer to sell.
If this be admitted, and we think it cannot be denied, what can
be the meaning of an act of congress which authorizes importa-
tion, and offers the privilege for sale at a fixed price to every
person who chooses to become a purchaser? How is it to be
construed, if an intent to deal honestly and fairly, an intent
as wise as it is moral, is to enter into the construction? What
can be the use of the contract, what does the importer purchase,
if he does not purchase the privilege to sell ?
What would be the language of a foreign government, which
should be informed that its merchants, after importing according
to law, were forbidden to sell the merchandise imported ? What
answer would the United States give to the complaints and just
reproaches to which such an extraordinary circumstance would
expose them? No apology could be received, or even offered.
Such a state of things would break up commerce. It will not
meet this argument, to say, that this state of things will never be
produced ; that the good sense of the States is a sufficient security
against it. The constitution has not confided this subject to
that good sense. It is placed elsewhere. The question is, where
does the power reside ? not, how far will it be probably abused ?
The power claimed by the State is, in its nature, in conflict with
that given to congress; and the greater or less extent in which
it may be exercised does not enter into the inquiry concerning
its existence.
We think, then, that if the power to authorize a sale exists
in congress, the conclusion that the right to sell is connected
with the law permitting importation, as an inseparable incident,
is inevitable.
If the principles we have stated be correct, the result to which
they conduct us cannot be mistaken. Any penalty inflicted on
the importer for selling the article, in his character of importer,
must be in opposition to the act of congress which authorizes
importation. Any charge on the introduction and incorporation
of the articles into and with the mass of property in the coun-
try, must be hostile to the power of congress to regulate com-
merce, since an essential part of that regulation, and principal
object of it, is, to prescribe the regular means for accomplish-
ing that introduction and incorporation.
The distinction between a tax on the thing imported and on
BROWN V. STATE OF MARYLAND. 291
the person of the importer, can have no influence on this part of
the subject. It is too obvious for controversy that they interfere
equally with the power to regulate commerce.
It has been contended that this construction of the power to
regulate commerce, as was contended in construing the prohibi-
tion to lay duties on imports, would abridge the acknowledged
power of a State to tax its own citizens, or their property within
its territory.
We admit this power to be sacred; but cannot admit that it
may be used so as to obstruct the free course of a power given to
congress. We cannot admit that it may be used so as to obstruct
or defeat the power to regulate commerce. It has been observed
that the powers remaining with the States may be so exercised
as to come in conflict with those vested in congress. When this
happens, that which is not supreme must yield to that which is
supreme. This great and universal truth is inseparable from
the nature of things, and the constitution has applied it to the
often interfering powers of the general and state governments,
as a vital principle of perpetual operation. It results, neces-
sarily, from this principle, that the taxing power of the States
must have some limits. It cannot reach and restrain the action
of the national government within its proper sphere. It cannot
reach the administration of justice in the courts of the Union,
or the collection of the taxes of the United States, or restrain
the operation of any law which congress may constitutionally
pass. It cannot interfere with any regulation of commerce. If
the States may tax all persons and property found on their ter-
ritory, what shall restrain them from taxing goods in their
transit through the State from one part to another, for the pur-
pose of re-exportation? The laws of trade authorize this opera-
tion, and general convenience requires it. Or what should re-
strain a State from taxing any article passing through it, from
one State to another, for the purpose of traffic ? or from taxing
the transportation of articles passing from the State itself to
another State for commercial purposes? These cases are all
within the sovereign power of taxation, but would obviously
derange the measures of congress to regulate commerce, and
affect materially the purpose for which that power was given.
We deem it unnecessary to press this argument further, or to
give additional illustrations of it, because the subject was taken
up and considered with great attention, in McCuUoch v. The
State of Maryland, 4 W. 316, the decision in which case is, we
think, entirely applicable to this.
292 CASES ON CONSTITUTIONAL LAW.
It may be proper to add that we suppose the principles laid
down in this case to apply equally to importations from a sis-
ter State. We do not mean to give any opinion on a tax dis-
criminating between foreign and domestic articles.
We think there is error in the judgment of the court of ap-
peals of the State of Maryland, in affirming the judgment of the
Baltimore city court, because the act of the legislature of
Maryland, imposing the penalty for which the said judgment is
rendered, is repugnant to the constitution of the United States,
and, consequently, void. The judgment is to be reversed, and
the cause remanded to that court, with instructions to enter
judgment in favor of the appellants.
Thompson, J., dissented. . . .
Note. — The "original package doctrine," which was first formulated
in the principal case, has been much criticized. See The License Cases
(1847), 5 Howard, 504, 615; Brown v. Houston (1885), 114 TJ. S. 622;
and Prentice and Egan, The Commerce Clause of the Federal Constitution,
66. In Woodruff v. Parham (1869), 8 Wallace, 123, it was held that it did
not apply to interstate shipments, but this ruling was reversed in Bowman
V. Chicago & Northwestern Ey. (1888), 125 U. S. 465, which represents the
prevailing rule. For the application of the rule to shipments of liquor see
the note to Leisy v. Hardin (1890), 135 U. S. 100, post, 382.
As to what constitutes an original package, see May & Co. v. New
Orleans (1900), 178 U. S. 496; Austin v. Tennessee (1900), 179 XT. S. 343;
Cook V. Marshall County (1905), 196 U. S. 261; and Purity Extract Co. v.
Lynch (1912), 226 U. S. 192.
As to the power of the States to tax interstate commerce, see Case of the
State Freight Tax (1873), 15 Wallace, 232; Bobbins v. Shelby County
Taxing District (1887), 120 TJ. S. 489; Leloup v. Port of Mobile (1888),
127 TJ. S. 640 ; and as to their power to tax property employed in interstate
commerce see Gloucester Ferry Co. v. Pennsylvania (1885), 114 TJ. S. 196;
Adams Express Co. v. Ohio (1897), 165 TJ. S. 194. As to when interstate
shipments begin and terminate, see The Daniel Ball (1871), 10 Wallace,
557; Coe v. Errol (1886), 116 TJ. S. 517; Rhodes v. Iowa (1898), 170 U. S.
412; Kelley v. Ehoads (1903), 188 TJ. S. 1; Diamond Match Co. v. Ontona-
gon (1903), 188 TJ. S. 82; American Express Co. v. Iowa (1905), 196 TJ. S.
133; General OU Co. v. Grain (1908), 209 U. S. 211.
Chief Justice Taney was counsel for the State of Maryland in the
principal case. In the License Cases (1847), 5 Howard, 504, 575, he said:
I at that time persuaded myself that I was right, and thought
the decision of the court restricted the powers of the State more than
a sound construction of the constitution of the United States would
warrant. But further and more mature reflection has convinced me
that the rule laid down by the supreme court is a just and safe
one, and, perhaps, the best that could have been adopted for pre-
serving the right of the United States on the one hand, and of the
States on the other, and preventing collision between them.
(JOOLBY V. BOARD OP WARDENS. 293
COOLEY V. THE BOARD OP WARDENS OP THE PORT
OP PHILADELPHIA.
Supreme Coxjbt of the United States. 1851.
12 Howard, 299; 13 Lawyers' Ed. 996.
CuBTis, J., delivered the opinion of the court.
These cases are brought here by writs of error to the supreme
court of the commonwealth of Pennsylvania.
They are actions to recover half -pilotage fees under the 29th
section of the act of the legislature of Pennsylvania, passed
on the second day of March, 1803. The plaintiff in error
alleges that the highest court of the State has decided against a
right claimed by him under the constitution of the United
States. That right is, to be exempted from the payment of the
sums of money, demanded pursuant to the state law above
referred to, because that law contravenes several provisions of
the constitution of the United States.
The particular section of the state law drawn in question is
as follows : ' ' That every ship or vessel arriving from, or bound
to any foreign- port or place, and every ship or vessel of the
burden of seventy-five tons or more, sailing from, or bound to
any port not within the River Delaware, shall be obliged to
receive a pilot. And it shall be the duty of the master of every
such ship or vessel, within thirty-six hours next after the arrival
of such ship or vessel at the city of Philadelphia, to make report
to the master-warden of the name of such ship or vessel, her
draught of water, and the name of the pilot who shall have con-
ducted her to port. And when any such vessel shall be outward
bound, the master of such vessel shall make known to the war-
dens the name of such vessel, and of the pilot who is to conduct
her to the capes, and her draught of water at that time. And it
shall be the duty of the wardens to enter every such vessel in a
book to be by them kept for that purpose, without fee or reward.
And if the' master of any ship or vessel shall neglect to make
such report, he shall forfeit and pay the sum of $60. And if the
master of any such ship or vessel shall refuse or neglect to take
a pilot, the master, owner, or consignee of such vessel shall forfeit
and pay to the warden aforesaid a sum equal to the half-pilotage
of such ship or vessel, to the use of the Society for the Relief,
etc., to be recovered as pilotage in the manner hereinafter
'directed: Provided always, that where it shall appear to the
warden that in case of an inward bound vessel, a pilot did not
cffer before she had reached Reedy Island: or, in case of an
294 CASES ON CONSTITUTIONAL LAW.
outward bound vessel, that a pilot could not be obtained for
twenty-four hours after such vessel was ready to depart, the
penalty aforesaid, for not having a pilot, shall not be incurred."
This is one section of "An Act to establish a Board of Wardens
for the Port of Philadelphia, and for the Regulation of Pilots
and Pilotages, &c.," and the scope of the act is, in conformity
with the title, to regulate the whole subject of the pilotage of
that port.
We think this particular regulation concerning half -pilotage
fees, is an appropriate part of a general system of regulations of
this subject. Testing it by the practice of commercial States and
countries legislating on this subject, we find it has usually been
deemed necessary to make similar provisions. Numerous laws
of this kind are cited in the learned argument of the counsel for
the defendant in error ; and their fitness, as part of a system of
pilotage, in many places, may be inferred from their existence
in so many different States and countries. .
It remains to consider the objection that it is repugnant to the
third clause of the eighth section of the first article. ' ' The con-
gress shall have power to regulate commerce with f-oreign nations
and among the several States, and with the Indian tribes. ' '
That the power to regulate commerce includes the regulation
of navigation, we consider settled. And when we look to the
nature of the service performed by pilots, to the relations which
that service and its compensations bear to navigation between the
several States, and between the ports of the United States and
foreign countries, we are brought to the conclusion, that the
regulation of the qualifications of pilots, of the modes and times
of offering and rendering their services, of the responsibilities
which shall rest upon them, of the powers they shall possess,
of the compensation they may demand, and of the penalties by
which their rights and duties may be enforced, do constitute
regulations of navigation, and consequently of commerce, within
the just meaning of this clause of the constitution.
The power to regulate navigation is the power to prescribe
rules in conformity with which navigation must be carried on.
It extends to the persons who conduct it, as well as to the instru-
tnents used. Accordingly, the first congress assembled under
the constitution passed laws requiring the masters of ships and
vessels of the United States to be citizens of the United States,
and established many rules for the government and regulation
of officers and seamen. 1 Stats, at Large, 55, 131. These have
COOLEY V. BOARD Oi' WAUDBNS. 295
been from time to time added to and changed, and we are not
aware that their validity has been questioned. .
A majority of the court are of opinion that a regulation of
pilots is a regulation of commerce, within the grant to congress
of the commercial power, contained in the third clause of the
eighth section of the first article of the constitution.
It becomes necessary, therefore, to consider whether this law
of Pennsylvania, being a regulation of commerce, is valid.
The act of congress of the 7th of August, 1789, § 4, is as
follows :
' ' That all pilots in the bays, inlets, rivers, harbors, and ports
of the United States shall continue to be regulated in conformity
with the existing laws of the States, respectively, wherein such
pilots may be, or with such laws as the States may respectively
hereafter enact for the purpose, until further legislative pro-
vision shall be made by congress."
If the law of Pennsylvania, now in question, had been in
existence at the date of this act of congress, we might hold it to
have been adopted by congress, and thus made a law of the
United States, and so valid. Because this act does, in effect, give
the force of an act of congress, to the then existing state laws on
this subject, so long as they should continue unrepealed by the
State which enacted them.
But the law on which these actions are founded was not
enacted till 1803. What effect then can be attributed to so much
of the act of 1789 as declares that pilots shall continue to be
regulated in conformity "with such laws as the States may
respectively hereafter enact for the purpose, until further legis-
lative provision shall be made by congress"?
If the States were divested of the power to legislate on this
subject by the grant of the commercial power to congress, it is
plain this act could not confer upon them power thus to legislate.
If the constitution excluded the States from making any law
regulating commerce, certainly congress cannot regrant, or in
any manner reeonvey to the States that power. And yet this
act of 1789 gives its sanction only to laws enacted by the States.
This necessarily implies a constitutional power to legislate ; for
only a rule created by the sovereign power of a State acting in
its legislative capacity, can be deemed a law enacted by a State ;
and if the State has so limited its sovereign power that it no
longer extends to a particular subject, manifestly it cannot, in
any proper sense, be said to enact laws thereon. Entertaining
these views, we are brought directly and unavoidably to the
296 CASES ON CONSTITUTIONAL LAW.
consideration of the question, whether the grant of the commer-
cial power to congress, did per se deprive the States of all power
to regulate pilots. This question has never been decided by
this court, nor, in our judgment, has any case depending upon
all the considerations which must govern this one, come before
this court. The grant of commercial power to congress does not
contain any terms which expressly exclude the States from exer-
cising an authority over its subject-matter. If they are ex-
cluded, it must be because the nature of the power thus granted
to congress requires that a similar authority should not exist in
the States. If it were conceded on the one side, that the nature
of this power, like that to legislate for the District of Columbia,
is absolutely and totally repugnant to the existence of similar
power in the States, probably no one would deny that the grant
of the power to congress, as effectually and perfectly excludes
the States from all future legislation on the subject, as if express
words had been used to exclude them. And on the other hand,
if it were admitted that the existence of this power in congress,
like the power of taxation, is compatible with the existence of
a similar power in the States, then it would be in conformity
with the contemporary exposition of the constitution, (Federalist,
No. 32), and with the judicial construction given from time to
time by this court, after the most deliberate consideration, to
hold that the mere grant of such a power to congress, did not
imply a prohibition on the States to exercise the same power;
that it is not the mere existence of such a power, but its exercise
by congress, which may be incompatible with the exercise of
the same power by the States, and that the States may legislate
in the absence of congressional regulations. Sturges v. Crownin-
shield, 4 Wheat. 193 ; Houston v. Moore, 5 Wheat. 1 ; Wilson v.
Blackbird Creek Co., 2 Pet. 251.
The diversities of opinion, therefore, which have existed on
this subject, have arisen from the different views taken of the
nature of this power. But when the nature of a power like this
is spoken of, when it is said that the nature of the power requires
that it should be exercised exclusively by congress, it must be
intended to refer to the subjects of that power, and to say they
are of such a nature as to require exclusive legislation by con-
gress. Now, the power to regulate commerce embraces a vast
field, containing not only many, but exceedingly various sub-
jects, quite unlike in their nature ; some imperatively demanding
a single uniform rule, operating equally on the commerce of the
United States in every port; and some, like the subject now in
COOLEY V. BOARD OF WARDENS. 297
question, as imperatively demanding that diversity which alone
can meet the local necessities of navigation.
Either absolutely to affirm, or deny that the nature of this
power requires exclusive legislation by congress, is to lose sight of
the nature of the subjects of this power, and to assert concerning
all of them what is really applicable but to a part. Whatever
subjects of this power are in their nature national, or admit only
of one uniform system, or plan of regulation, may justly be said
to be of such a nature as to require exclusive legislation by con-
gress. That this cannot be affirmed of laws for the regulation
of pilots and pilotage is plain. The act of 1789 contains a clear
and authoritative declaration by the first congress, that the
nature of this subject is such that until congress should find it
necessary to exert its power, it should be left to the legislation of
the States; that it is local and not national; that it is likely to
be the best provided for, not by one system, or plan of regula-
tion, but by as many as the legislative discretion of the several
States should deem applicable to the local peculiarities of the
ports within their limits.
Viewed in this light, so much of this act of 1789 as declares
that pilots shall continue to be regulated "by such laws as the
States may respectively hereafter enact for that purpose," in-
stead of being held to be inoperative, as an attempt to confer on
the States a power to legislate, of which the constitution had
deprived them, is allowed an appropriate and important signifi-
cation. It manifests the understanding of congress, at the outset
of the government, that the nature of this subject is not such as
to require its exclusive legislation. The practice of the States,
and of the national government, has been in conformity with
this declaration, from the origin of the national government
to this time; and the nature of the subject when examined is
such as to leave no doubt of the superior fitness and propriety,
not to say the absolute necessity, of different systems of regula-
tion, drawn from local knowledge and experience, and conformed
to local wants. How, then, can we say that, by the mere grant
of power to regulate commerce, the States are deprived of all
the power to legislate on this subject, because from the nature
of the power the legislation of congress must be exclusive? This
would be to affirm that the' nature of the power is, in this case,
something different from the nature of the subject to which, in
such case, the power extends, and that the nature of the power
necessarily demands, in all cases, exclusive legislation by con-
gress, while the nature of one of the subjects of that power, not
298 CASES ON CONSTITUTIONAL LAW.
only does not require such exclusive legislation, but may be best
provided for by many different systems enacted b^ the States, in
conformity with the circumstances of the ports within their lim-
its. In construing an instrument designed for the formation of
a government, and in determining the extent of one of its im-
portant grants of power to legislate, we can make no such dis-
tinction between the nature of the power and the nature of the
subject on which that power was intended practically to operate,
nor consider the grant more extensive, by affirming of the power,
what is not true of its subject now in question.
It is the opinion of a majority of the court that the mere
grant to congress of the power to regulate commerce did not
deprive the States of power to regulate pilots, and that although
congress has legislated on this subject, its legislation manifests
an intention, with a single exception, not to regulate this subject,
but to leave its regulation to the several States. To these pre-
cise questions, which are all we are called on to decide, this
opinion must be understood to be' confined. It does not extend
to the question what other subjects, under the commercial power,
are within the exclusive control of congress, or may be regulated
by the States in the absence of all congressional legislation; nor
to the general question, how far any regulation of a subject by
congress may be deemed to operate as an exclusion of all legis-
lation by the States upon the same subject. "We decide the pre-
cise questions before us, upon what we deem sound principles,
applicable to this particular subject in the State in which the
legislation of congress has left it. "We go no further.
"We have not adverted to the practical consequences of holding
that the States possess no power to legislate for the regulation
of pilots, though in our apprehension these would be of the most
serious importance. For more than sixty years this subject has
been acted on by the States, and the systems of some of them
created and of others essentially modified during that period.
To hold that pilotage fees and penalties demanded and received
during that time have been illegally exacted, under color of
void laws, would work an amount of mischief which a clear con-
viction of constitutional duty, if entertained, must force us to
occasion, but which could be viewed by no just mind without
deep regret. Nor would the mischief be limited to the past. If
congress were now to pass a law adopting the existing state laws,
if enacted without authority, and in violation of the constitution,
it would seem to us to be a new and questionable mode of legis-
lation.
COOLEY V. BOARE) op WASiDBNS. 2&9
If the grant of commercial power in the constitution has de-
prived the States of all power to legislate for the regulation of
pilots, if their laws on this subject are mere usurpations upon
the exclusive jwwer of the general government, and utterly void,
it may be doubted whether congress could, with propriety, rec-
ognize them as laws, and adopt them as its own acts; and how
are the legislatures of the States to proceed in future, to watch
over and amend these laws, as the progressive wants of a growing
commerce will require, when the members of those legislatures
are made aware that they cannot legislate on this subject without
violating the oaths they have taken to support the constitution
of the United States?
"We are of opinion that this state law was enacted by virtue
of a power, residing in the State to legislate, that it is not in
conflict with any law of congress ; that it does not interfere with
any system which congress has established by making regula-
tions, or by intentionally leaving individuals to their own unre-
stricted action; that this law is therefore valid, and the judg-
ment of the supreme court of Pennsylvania in each case must
be affirmed.
M'Lean, J., and Wayne, J., dissented; and Daniel, J., al-
though he concurred in the judgment of the court, yet dissented
from its reasoning. . . .
Note. — The rule of tte principal case, which has been generally ad-
hered to since this decision, was first formulated in the Supreme Court by
Mr. Justice Woodbury in The License Cases (1846), 5 Howard, 504, 624,
where he said:
There is much in connection with foreign commerce which is
local within each State, convenient for its regulation and useful to
the public, to be acted on by each tiU the power is abused or some
course is taken by Congress conflicting with it. Such are the deposit
of ballast in harbours, the extension of wharves into tidewater,
the supervision of the anchorage of ships, the removal of obstruc-
tions, the allowance of bridges with suitable draws, and various
other matters that need not be enumerated, besides the exercise
of numerous police and health powers, which are also by many
claimed upon different grounds. . . . The States, not conflict-
ing with any uniform and general regulations by Congress as to
foreign commerce, must for convenience, if not necessity, from
the very nature of the power, not be debarred from any legislation
of a local and detailed character on matters connected with that
commerce omitted by Congress. And to hold the power of Congress
as to such topics exclusive, in every respect, and prohibitory to
the States, though never exercised by Congress, aa fully as when in
300 CASES ON CONSTITUTIONAL LAW.
active operation, which is the opposite theory, would create infinite
inconvenience, and detract much from the cordial cooperation and
consequent harmony between both governments, in their appropri-
ate spheres. It would nullify numerous useful laws and regulations
in all the Atlantic and commercial States in the Union.
At a still earlier date, Daniel Webster, as counsel for the appellant in
Gibbons v. Ogden (1824), 9 Wheaton, 1, 14, had said:
It should be repeated, that the words used in the constitution,
' ' to regulate commerce, ' ' are so very general and extensive, that
they might be construed to cover a vast field of legislation, part
of which has always been occupied by State laws; and, therefore,
the words must have a reasonable construction, and the power
should be considered as exclusively vested in Congress, so far, and
so far only, as the nature of the power requires.
The pilotage laws of the United States are well summarized and the
doctrine of the principal case is afSimed in Anderson v. Pacific Coast
Steamship Co. (1912), 225 U. S. 187.
IN EE DEBS, PETITIONER.
SUPEEME COXTRT OP THE -UNITED STATES. 1895.
158 U. S. 564; 39 Lawyers' Ed. 1092.
[This case grew out of the situation created by the railway
strike in Chicago in the summer of 1894. By direction of the
Attorney-General of the United States, the district attorney for
the Northern District of Illinois filed a bill of complaint in the
Circuit Court of the United States in which it was averred that
the twenty-two railroads named therein were engaged in the
business of interstate commerce and in the transportation of the
the United States mails; that four of the defendants, officers of
the American Railway Union, had combined with others to com-
pel an adjustment of a dispute between the Pullman Palace
Car Company and its employees by boycotting the cars of the
company ; that to make the boycott effective, they had prevented
certain of the railroads running out of Chicago from operating
their trains, and were combining to extend such boycott against
the Pullman cars by causing strikes among employees of all roads
attempting to haul the same; that the defendants and others
unknown proceeded by collecting together in large numbers, by
threats, intimidation, force and violence, to prevent the said
railways from employing other persons to fill the vacancies
aforesaid; that the defendants and others unknown did with
IN RE DEBS. 301
force and violence obstruct, derail, and wreck the engines and
trains of the said railways, both passenger and freight, engaged
in interstate commerce and in carrying the United States mails.
Following these allegations was a prayer for an injunction. The
court thereupon ordered an injunction commanding the defend-
ants ' ' and all persons combining and conspiring with them, and
all other persons whomsoever absolutely to desist and refrain
from" doing the unlawful acts specified in the bill. The injunc-
tion was served on those of the defendants who are here as peti-
tioners. On December 14, these petitioners were found guilty
of contempt and sentenced to imprisonment in the county jail
for terms varying from thre^ to six months. Having been com-
mitted to jail, they on January 14, 1895, applied to this court
for a writ of error and also a writ of habeas corpus. The former
was denied on the ground that the order of the Circuit Court
was not a final judgment or decree. The latter is now to be
considered.]
Mb. Justice Brewer . . . delivered the opinion of the
court.
The case presented by the bill is this: The United States,
finding that the interstate transportation of persons and prop-
erty, as well as the carriage of the mails, is forcibly obstructed,
and that a combination and conspiracy exists to subject the con-
trol of such transportation to the will of the conspirators, applied
to one of their courts, sitting as a court of equity, for an injunc-
tion to restrain such obstruction and prevent carrying into
effect such conspiracy. Two questions of importance are sug-
gested: First. Are the relations of the general government to
interstate commerce and the transportation of the mails such
as to authorize a direct interference to prevent a forcible obstruc-
tion thereof? Second. If authority exists, as authority ia gov-
ernment implies both power and duty, has a court of equity
jurisdiction to issue an injunction in aid of the performance of
such duty.
First. "What are the relations of the general government to
interstate commerce and the transportation of the mails ? They
are those of direct supervision, control, and management. While
under the dual system which prevails with us the powers of gov-
ernment are distributed between the State and the Nation, and
while the latter is properly styled a government of enumerated
powers, yet within the limits of such enumeration it has all the
attributes of sovereignty, and, in the exercise of those enu-
302 CASES ON CONSTITUTIONAL LAW.
merated powers, acts directly upon the citizen, and not through
the intermediate agency of the State. . . .
Among the powers expressly given to the national government
are the control of interstate commerce and the creation and man-
agement of a post-office system for the -nation. . . . [Here
follows a consideration of the statutes passed in the exercise of
these powers.]
Obviously these powers given to the national government over
interstate commerce and in respect to the transportation of the
mails were not dormant and unused. Congress had taken hold
of these two matters, and by various and specific acts had as-
sumed and exercised the powers given to it, and was in full dis-
charge of its duty to regulate interstate commerce and carry
the mails. The validity of such exercise and the exelusiveness
of its control had been again and again presented to this court
for consideration. It is curious to note the fact that in a large
proportion of the eases in respect to interstate commerce brought
to this court the question presented was of the validity of state
legislation in its bearings upon interstate commerce, and the
uniform course of decision has been to declare that it is not
within the competency of a State to legislate in such a manner
as to obstruct interstate commerce. If a State with its recog-
nized powers of sovereignty is impotent to obstruct interstate
commerce, can it be that any mere voluntary association of in-
dividuals within the limits of that State has a power which the
State itself does not possess?
As, under the Constitution, power over interstate commerce
and the transportation of the mails is vested in the national gov-
ernment, and Congress by virtue of such grant has assumed
actual and direct control, it follows that the national govern-
ment may prevent any unlawful and forcible interference there-
with. But how shall this be accomplished? Doubtless, it is
within" the competency of Congress to prescribe by legislation
that any interference with these matters shall be offenses against
the United States, and prosecuted and punished by indictment
in the proper courts. But is that the only remedy? Have the
vast interests of the nation in interstate commerce, and in the
transportation of the mails, no other protection than lies in the
possible punishment of those who interfere with it? To ask
the question is to answer it. By article 3, section 2, clause 3, of
the Federal Constitution it is provided : ' ' The trial of all crimes
except in cases of impeachment shall be by jury ; and such trial
shall be held in the State where the said crime shall have been
IN EE DEBS. 303
committed." If all the inhabitants of a State, or even a great
body of them, should combine to obstruct interstate commerce
or the transportation of the mails, prosecutions for such offenses
had in such a community would be doomed in advance to failure.
And if the certainty of such failure was known, and the national
government had no other way to enforce the freedom of inter-
state commerce and the transportation of the mails than by
prosecution and punishment for interference therewith, the
whole interests of the nation in these respects would be at the
absolute mercy of a portion of the inhabitants of that single
State.
But there is no such impotency in the national government.
The entire strength of the nation may be used to enforce in any
part of the land the full and free exercise of all national powers
and the security of all rights entrusted by the Constitution to
its care. The strong arm of the national government may be
put forth to brush away all obstructions to the freedom of inter-
state commerce or the transportation of the mails. If the emer-
gency arises, the army of the Nation, and all its militia, are at
the service of the Nation to compel obedience to its laws.
But passing to the second question, is there no other alterna-
tive than the use of force on the part of the executive authorities
whenever obstructions arise to the freedom of interstate com-
merce or the transportation of the mails? Is the army the only
instrument by which rights of the public can be enforced and
the peace of the nation preserved? Grant that any public
nuisance may be forcibly abated either at the instance of the
authorities, or by any individual suffering private damage there-
from, the existence of this right of forcible abatement is not
inconsistent with nor does it destroy the right of appeal in an
orderly way to the courts for a judicial determination, and an
exercise of their powers by writ of injunction and otherwise to
accomplish the same result. . . .
So, in the case before us, the right to use force does not ex-
clude the right of appeal to the courts for a judicial determina-
tion and for the exercise of all their powers of prevention. In-
deed, it is more to the praise than to the blame of the govern-
ment, that, instead of determining for itself questions of right
and wrong on the part of these petitioners and their associates
and enforcing that determination by the club of the policeman
and the bayonet of the soldier, it submitted all those questions
to the peaceful determination of judicial tribunals, and invoked
their consideration and judgment as to the measure of its rights
304 CASES ON CONSTITUTIONAL LAW.
and powers and the correlative obligations of those against
whom it made complaint. And it is equally to the credit of the
latter that the judgment of those tribunals was by the great
body of them respected, and the troubles which threatened so
much disaster terminated.
Neither can it be doubted that the government has such an
interest in the subject-matter as enables it to appear as party
plaintiff in this suit. It is said that equity only interferes for
the protection of property, and that the government has no
property interest. A sufficient reply is that the United States
have a property in the mails, the protection of which was one
of the purposes of this bill. . . .
"We do not care to place our decision upon this ground alone.
Every government, entrusted, by the very terms of its being,
with powers and duties to be exercised and discharged for the
general welfare, has a right to apply to its own courts for any
proper assistance in the exercise of the one and the discharge
of the other, and it is no sufficient answer to its appeal to one
of those courts that it has no pecuniary interest in the matter.
The obligation which it is under to promote the interest of all,
and to prevent the wrongdoing of one resulting in injury to
the general welfare, is often of itself sufficient to give it stand-
ing in the court. [Here follows a discussion of United States v.
San Jacinto Tin Co., 125 U. S. 273, 285, and United States v.
Bell Telephone Company, 128 U. S. 315, 367.]
It is obvious from these decisions that while it is not the prov-
ince of the government to interfere in any mere matter of pri-
vate controversy between individuals, or to use its great powers
to enforce the rights of one against another, yet, whenever the
wrongs complained of are such as affect the public at large, and
are in respect of matters which by the Constitution are entrusted
to the care of the Nation, and concerning which the Nation owes
the duty to all the citizens of securing to them their common
rights, then the mere fact that the government has no pecuniary
interest in the controversy is not sufficient to exclude it from
the courts, or prevent it from taking measures therein to fully
discharge those constitutional duties.
The national government, given by the Constitution power to
regulate interstate commerce, has by express statute assumed
jurisdiction over such commerce when carried upon railroads.
It is charged, therefore, with the duty of keeping those high-
ways of interstate commerce free from obstruction, for it has
always been recognized as one of the powers and duties of a
IN RE DEBS. 305
government to remove obstructions from the highway under its
control. ...
It is said that the jurisdiction heretofore exercised by the
national government over highways has been in respect to water-
ways — the natural highways of the country — and not over arti-
ficial highways such as railroads; but the occasion for the exer-
cise by Congress of its jurisdiction over the latter is of recent
date. Perhaps the first act in the course of such legislation is
that heretofore referred to, of June 14, 1866, but the basis upon
which rests its jurisdiction over artificial highways is the same
as that which supports it over the natural highways. Both spring
from the power to regulate commerce. The national government
has no separate dominion over a river within the limits of a
State; its jurisdiction there is like that over land in the same
State. Its control over the river is simply by virtue of the fact
that it is one of the highways of interstate and international
commerce. The great case of Gibbons v. Ogden, 9 Wheat. 1, 197,
in which the control of Congress over inland waters was asserted,
rested that control on the grant of the power to regulate com-
merce. . . .
See also Oilman v. Philadelphia, 3 Wall. 713, 725, in which
it was said: "Wherever 'commerce among the States' goes, the
power of the nation, as represented in this court, goes with it
to protect and enforce its rights."
Up to a recent date commerce, both interstate and international,
was mainly by water, and it is not strange that both the legisla-
tion of Congress and the cases in the courts have been princi-
pally concerned therewith. The fact that in recent years inter-
state commerce has come mainly to be carried on by railroads
and over artificial highways has in no manner narrowed the
scope of the constitutional provision, or abridged the power of
Congress over such commerce. On the contrary, the same full-
ness of control exists in the one case as in the other, and the
same power to remove obstructions from the one as from the
other.
Constitutional provisions do not change, but their operation
extends to new matters as the modes of business and the habits
of life of the people vary with each succeeding generation. The
law of the common carrier is the same today as when transpor-
tation on land was by coach and wagon, and on water by canal
boat and sailing vessel, yet in its actual operation it touches and
regulates transportation by modes then unknown, the railroad
train and the steamship. Just so is it with the grant to the
B. C. I..— 20
306 CASES ON CONSTITUTIONAL LAW.
national government of power over interstate commerce. The
Constitution has not changed. The power is the same. But it
operates today upon modes of interstate commerce unknown to
the fathers, and it will operate with equal force upon any new
modes of such commerce which the future may develop. . . .
The petition for a writ of habeas corpus is
Denied.
HOUSTON, EAST AND WEST TEXAS KAILWAY CO. v.
UNITED STATES.
TEXAS AND PACIFIC RAILWAY CO. v. UNITED STATES.
[THE SHREVEPORT CASE.]
Supreme Coukt or the United States. 1914.
234 V. S. 342; 58 Lawyers' Ed. 1341.
Appeals from the Commerce Court.
[Complaint was made to the Interstate Commerce Commission
that a carrier operating between Dallas, Texas, and Shreveport,
Louisiana, made rates eastward from Dallas to other Texas
points much lower than the rates from Shreveport to those points,
although the distance from Shreveport might be considerably
less. For instance, the rate on wagons from Dallas to Marshall,
Texas, a distance of 147.7 miles, was 36.8 cents, while from
Shreveport to Marshall, a distance of 42 miles, it was 56 cents.
The Commission had already declared the interstate rates from
Shreveport to be reasonable, but in order to correct the discrim-
ination against Shreveport growing out of the lower rates be-
tween Texas points, the Commission ordered the carriers to charge
no higher rate from Shreveport to Dallas or any intermediate
points than it charged from Dallas toward Shreveport for an
equal distance. The railways refused to comply on the ground
that their rates between Texas points were fixed by the Texas
Railway Commission and that the Interstate Commerce Com-
mission could have no jurisdiction over them. The action of the
Commission having been sustained by the Commerce Court (205
Fed. Rep. 380), the railways appealed.]
Mr. Justice Hughes delivered the opinion of the court. . . .
The point of the objection to the order is that, as the discrimi-
nation found by the Commission to be unjust arises out of the
HOUSTON, E. & W. TEXAS RY. CO. v. U. S. 307
relation of intrastate rates, maintained under state authority,
to interstate rates that have been upheld as reasonable, its cor-
rection was beyond the Commission's power. Manifestly, the
order might be complied with, and the discrimination avoided,
either by reducing the interstate rates from Shreveport to the
level of the competing intrastate rates, or by raising these intra-
state rates to the level of the interstate rates, or by such reduc-
tion in the one case and increase in the other as would result
in equality. But it is urged that, so far as the interstate rates
were sustained by the Commission as reasonable, the Commis-
sion was without authority to compel their reduction in order
to equalize them with the lower intrastate rates. The holding
of the Commerce Court was that the order relieved the appel-
lants from further obligation to observe the intrastate rates and
that they were at liberty to comply with the Commission's re-
quirements by increasing these rates sufficiently to remove the
forbidden discrimination. The invalidity of the order in this
aspect is challenged upon two grounds:
(1) That Congress is impotent to control the intrastate charges
of an interstate carrier even to the extent necessary to prevent
injurious discrimination against interstate traffic; and
(2) That, if it be assumed that Congress has this power, still
it has not been exercised, and hence the action of the Commis-
sion exceeded the limits of the authority which has been con-
ferred upon it.
First. It is unnecessary to repeat what has frequently been
said by this court with respect to the complete and paramount
character of the power confided to Congress to regulate com-
merce among the several States. It is of the essence of this power
that, where it exists, it dominates. Interstate trade was not left
to be destroyed or impeded by the rivalries of local governments.
The purpose was to make impossible the recurrence of the evils
which had ovetTvhelmed the Confederation and to provide the
necessary basis of national unity by insuring "uniformity of
regulation against conflicting and discriminating state legisla-
tion." By virtue of the comprehensive terms of the grant, the
authority of Congress is at all times adequate to meet the vary-
ing exigencies that arise and to protect the national interest by
securing the freedom of interstate commercial intercourse from
local control. Gibbons v. Ogden, 9 Wheat. 1, 196, 224 ; Brown
V. Maryland, 12 Wheat. 419, 446 ; County of Mobile v. Kimball,
102 U. S. 691, 696, 697; Smith v. Alabama, 124 U. S. 465, 473;
308 CASES ON CONSTITUTIONAL LAW.
Second Employers' Liability Cases, 223 U. S. 1, 47, 53, 54; Min-
nesota Rate Cases, 230 U. S. 352, 398, 399.
Congress is empowered to regulate, — that is, to provide the law
for the government of interstate commerce ; to enact ' ' all appro-
priate legislation" for its "protection and advancement." (The
Daniel Ball, 10 Wall. 557, 564) ; to adopt measures "to promote
its growth and insure its safety" (County of Mobile v. Kimball,
supra) ; "to foster, protect, control and restrain" (Second Em-
ployers' Liability Cases, supra). Its authority, extending to
these interstate carriers as instruments of interstate commerce,
necessarily embraces the right to control their operations in all
matters having such a close and substantial relation to inter-
state trafiSc that the control is essential or appropriate to the
security of that traffic, to the efficiency of the interstate service,
and to the maintenance of conditions under which interstate
commerce may be conducted upon fair terms and without mo-
lestation or hindrance. As it is competent for Congress to legis-
late to these ends, unquestionably it may seek their attainment
by requiring that the agencies of interstate commerce shall not
be used in such manner as to cripple, retard or destroy it. The
fact that carriers are instruments of intrastate commerce, as
well as of interstate commerce, does not derogate from the com-
plete and paramount authority of Congress over the latter or pre-
clude the Federal power from being exerted to prevent the in-
trastate operations of such carriers from being made a means
of injury to that which has been confided to Federal care.
Wherever the interstate and intrastate transactions of carriers
are so related that the government of the one involves the con-
trol of the other, it is Congress, and not the State, that is en-
titled to prescribe the final and dominant rule, for otherwise
Congress would be denied the exercise of its constitutional au-
thority, and the State, and not the Nation, would be supreme
within the national field. Baltimore & Ohio Railroad Co. v.
Interstate Commerce Commission, 221 U. S. 612, 618; Southern
Railway Co. v. United States, 222 U. S. 20, 26, 27 ; Second Bm"-
ployers' Liability Cases, supra, pp. 48, 51; Interstate Commerce
Commission v. Goodrich Transit Co., 224 U. S. 194, 205, 213;
Minnesota Rate Cases, supra, p. 431; Illinois Central Railroad
Co. V. Behrens, 233 U. S. 473. . . .
While these decisions sustaining the Federal power relate to
measures adopted in the interest of the safety of persons and
property, they illustrate the principle that Congress in the exer-
cise of its paramount power may prevent the common instru-
HOUSTON, E. & W. TEXAS RY. CO. v. U. S. 309
mentalities of interstate and intrastate commercial intercourse
from being used in their intrastate operations to the injury of
interstate commerce. This is not to say that Congress possesses
the authority to regulate the internal commerce of a State, as
such, but that it does possess the power to foster and protect
interstate commerce, and to take all measures necessary or ap-
propriate to that end, although intrastate transactions of inter-
state carriers may thereby be controlled.
This principle is applicable here. We find no reason to doubt
that Congress is entitled to keep the highways of interstate
communication open to interstate traffic upon fair and equal
terms. That an unjust discrimination in the rates of a common
carrier, by which one person or locality is unduly favored as
against another under substantially similar conditions of traf-
fic, constitutes an evil is undeniable; and where this evil con-
sists in the action of an interstate carrier in unreasonably dis-
criminating against interstate traffic over its line, the authority
of Congress to prevent it is equally clear. It is immaterial, so
far as the protecting power of Congress is concerned, that the
discrimination arises from intrastate rates as compared with
interstate rates. The use of the instrument of interstate com-
merce in a discriminatory manner so as to inflict injury upon
that commerce, or some part thereof, furnishes abundant ground
for Federal intervention. Nor can the attempted exercise of
state authority alter the matter, where Congress has acted, for a
State may not authorize a carrier to do that which Congress is
entitled to forbid and has forbidden.
It is also to be noted — as the Government has well said in its
argument in support of the Commission 's order — ^that the power
to deal with the relation between the two kinds of rates, as a
relation, lies exclusively with Congress. It is manifest that the
States cannot fix the relation of the carriers interstate and intra-
state charges without directly interfering with the former, un-
less it simply follows the standard set by Federal authority.
. . . It is for Congress to supply the needed correction
where the relation between interstate and intrastate rates pre-
sents the evil to be corrected, and this it may do completely by
reason of its control over the interstate carrier in all matters
having such a close and substantial relation to interstate com-
merce that it is necessary or appropriate to exercise the con-
trol for the effective government of that commerce.
It is also clear that, in removing the injurious discriminations
against interstate traffic arising from the relation of intrastate
310 CASES ON CONSTITUTJONAti LAW.
to interstate rates, Congress is not bound to reduce the latter
below what it may deem to be a proper standard fair to the
carrier and to the public. Otherwise, it could prevent the in-
jury to interstate commerce only by the sacrifice of its judgment
as to interstate rates. Congress is entitled to maintain its own
standard as to these rates and to forbid any discriminatory
action by interstate carriers which will obstruct the freedom of
movement of interstate traffic over their lines in accordance
with the terms it establishes.
Having this power, Congress could provide for its execution
through the aid of a subordinate body; and we conclude that
the order of the Commission now in question cannot be held
invalid upon the ground that it exceeded the authority which
Congress could lawfully confer. . . .
Affirmed.
Me. Justice Lurton and Mr. Justice Pitney dissent.
Note. — As to the jurisdiction of Congress over commerce between points
in the same State which at some intermediate stage passes outside the State,
see Lord v. Steamship Co. (1880), 102 U. S. 541, and Wilmington Trans-
portation Co. V. California Eailroad Commission (1915), 236 U. S. 151
(navigation on the high seas between two ports in California), and Hanley
V. Kansas City Southern Ry. (1903), 187 XT. S. 617 (transportation between
two points in Arkansas by a line of railroad which passed outside the
State).
Section 3. What is a Regulation op Commerce.
THE ADDTSTONE PIPE & STEEL COMPANY v. UNITED
STATES.
Supreme Court op the United States. 1899.
175 U. S. 211; 44 Lawyers' Ed. 136.
Appeal from the Court of Appeals for the Sixth Circuit.
This proceeding was commenced in behalf of the United States,
under the so-called anti-trust act of Congress, of July 2, 1890,
c. 647, 26 Stat. 209, ... for the purpose of obtaining an
injunction perpetually enjoining the six corporations, who were
made defendants, and who were engaged in the manufacture,
sale and transportation of iron pipe at their respective places of
business in the States of their residence, from further acting
under or carrying on the combination alleged in the petition to
ADDYSTONE PIPE & STEEL CO. v. U. S. 311
have been entered into between tbem, and which was stated to
be an illegal and unlawful one, under the act above mentioned,
because it was in restraint of trade and commerce among the
States, etc. . . .
Mr. Justick Peckham . . . delivered the opinion of the
court. . . .
Assuming, for the purpose of the argument, that the contract
in question herein does directly and substantially operate as a
restraint upon and as a regulation of interstate commerce, it is
yet insisted by the appellants at the threshold of the inquiry
that by the true construction of the Constitution, the power of
Congress to regulate interstate commerce is limited to its pro-
tection from acts of interference by state legislation or by
means of regulations made under the authority of the State by
some political subdivision thereof, including also Congressional
power over common carriers, elevator, gas and water compa-
nies, for reasons stated to be peculiar to such carriers and com-
panies, but that it does not include the general power to inter-
fere with or prohibit private contracts between citizens, even
though such contracts have interstate commerce for their object,
and result in a direct and substantial obstruction to or regula-
tion of that commerce.
This argument is founded upon the assertion that the reason
for vesting in Congress the power to regulate commerce was to
insure uniformity of regulation against conflicting and discrimi-
nating state legislation ; and the further assertion that the Con-
stitution guarantees liberty of private contract to the citizen at
least upon commercial subjects, and to that extent the guaranty
operates as a limitation on the power of Congress to regulate
commerce. Some remarks are quoted from the opinions of Chief
Justice Marshall . . . and from the opinions of other jus-
tices of this court, ... all of which are to the effect that
the object of vesting in Congress the power to regulate inter-
state commerce was to insure uniformity of regulation against
conflicting and discriminating state legislation. The further
remark is quoted from Railroad Company v. Richmond, 19 Wall.
584, that the power of Congress to regulate commerce was never
intended to be exercised so as to interfere with private contracts
not designed at the time they were made to create impediments
to such commerce. . . .
The reasons which may have caused the framers of the Con-
stitution to repose the power to regulate interstate commerce in
312 CASES ON CONSTITUTIONAL LAW.
Congress do not, however, affect or limit the extent of the power
itself. ...
Under this grant of power to Congress, that body, in our judg-
ment, may enact such legislation as shall declare void and pro-
hibit the performance of any contract between individuals or
corporations where the natural and direct effect of such a con-
tract will be, when carried out, to directly, and not as a mere
incident to other and innocent purposes, regulate to any sub-
stantial extent interstate commerce. (And when we speak of
interstate we also include in our meaning foreign commerce.)
We do not assent to the correctness of the proposition that the
constitutional guaranty of liberty to the individual to enter into
private contracts limits the power of Congress and prevents it
from legislating upon the subject of contracts of the class men-
tioned.
The power to regulate interstate commerce is, as stated .by
Chief Justice Marshall, full and complete in Congress, and
there is no limitation in the grant of the power which excludes
private contracts of the nature in question from the jurisdiction
of that body. Nor is any such limitation contained in that other
clause of the Constitution, which provides that no -person shall
be deprived of life, liberty or property without due process of
law. It has been held that the word "liberty," as used in the
Constitution, was not to be confined to the mere liberty of per-
son, but included, among others, a right to enter into certain
classes of contracts for the purpose of enabling the citizen to
carry on his business. AUgeyer v. Louisiana, 165 U. S. 578;
United States v. Joint Traffic Association, 171 U. S. 505, 572.
But it has never been, and in our opinion ought not to be, held
that the word included the right of an individual to enter into
private contracts upon all subjects, no matter what their nature
and wholly irrespective (among other things) of the fact that
they would, if performed, result in the regulation of interstate
commerce and in the violation of an act of Congress upon that
subject. The provision in the Constitution does not, as we be-
lieve, exclude Congress from legislating with regard to contracts
of the above nature while in the exercise of its constitutional
right to regulate commerce among the States. On the contrary,
we think the provision regarding the liberty of the citizen is,
to some extent, limited by the commerce clause of the Constitu-
tion, and that the power of Congress to regulate interstate com-
merce comprises the right to enact a law prohibiting the citizen
from entering into those private contracts which directly and
CHAMPION V. AMES. 313
substantially, and not merely indirectly, remotely, incidentally
and collaterally, regulate to a greater or less degree commerce
among the States. . . .
The private contracts may in truth be as far reaching in their
effect upon interstate commerce as would the legislation of a
single State of the same character. . . .
"What sound reason can be given why Congress should have
the power to interfere in the case of the State, and yet have
none in the ease of the individual? Commerce is the important
subject of consideration, and anything which directly obstructs
and thus regulates that commerce which is carried on among
the States, whether it is state legislation or private contracts
between individuals or corporations, should be subject to the
power of Congress in the regulation of that commerce. . . .
To the extent that the present decree includes in its scope
■the enjoining of defendants . . . from combining in regard
to contracts for selling pipe in their own State, it is modified,
and limited to that portion of the combination or agreement
which is interstate in its character. As thus modified, the de-
cree is Affirmed.
LOTTERY CASE.
CHAMPION V. AMES.
Supreme Court or the United States. 1903.
188 V. S. 321; 47 Lawyers' Ed. 492.
Appeal from the Circuit Court of the United States for the
Northern District of Illinois.
[By an act of Congress of March 2, 1895, entitled "An act for
the suppression of lottery traffic through national and inter-
state commerce and the postal service subject to the jurisdiction
and laws of the United States," it was provided "That any
person who shall cause to be brought within the United States
from abroad, for the purpose of disposing of the same, or depo ■
sited in or carried by the mails of the United States, or carried
from one State to another in the United States, any paper, cer-
tificate, or instrument purporting to be or represent a ticket,
chance, share, or interest in or dependent upon the event of a
lottery, so-called gift concert, or similar enterprise, offering
prizes dependent upon lot or chance, or shall cause any adver-
tisement of such lottery, so-called gift concert or similar enter-
prises, offering prizes dependent upon lot or chance, to be
314 CASES ON CONSTITUTIONAL LAW.
brought into the United States, or deposited in or carried by the
mails of the United States, or transferred from one State to
another in the same, shaU be punishable in [for] the first
offense by imprisonment for not more than two years, or by a
fine of not more than one thousand dollars, or both, and in the
second and after offenses by such imprisonment only." W. F,
Champion was arrested in Chicago and held for trial in the
District Court of the Northern District of Texas for having
deposited with the "Wells'-Fargo Express Company for trans-
mission from Dallas, Texas, to Fresno, California, a package
containing lottery tickets issued by the Pan-American Lottery
Company. Whereupon he sued out a writ of habeas corpus upon
the theory that the act of 1895, under which it was proposed to
try him, was unconstitutional and void.]
Me. Justice Harlan delivered the opinion of the court. . . .
We are of opinion that lottery tickets are subjects of traffic,
and therefore are subjects of commerce, and the regulation of
the carriage of such tickets from State to State, at least by inde-
pendent carriers, is a regulation of commerce among the several
States.
But it is said that the statute in question does not regulate the
carrying of lottery tickets from State to State, but by punishing
those who cause them to be so carried Congress in effect prohibits
such carrying ; that in respect of the carrying from one State to
another of articles or things that are, in fact, or according to
usage in business, the subjects of commerce, the authority given
Congress was not to prohibit, but only to regulate. This view
was earnestly pressed at the bar by learned counsel, and must
be examined.
It is to be remarked that the Constitution does not define what
is to be deemed a legitimate regulation of interstate commerce.
In Gibbons v. Ogden it was said that the power to regulate such
commerce is the power to prescribe the rule by which it is to be
governed. But this general observation leaves it to be deter-
mined, when the question comes before the court, whether Con-
gress in prescribing a particular rule, has exceeded its power
under the Constitution. ...
We have said that the carrying from State to State of lottery
tickets constitutes interstate commerce, and that the regulation
of such commerce is within the power of Congress under the Con-
stitution. Are we prepared to say that a provision which is, in
effect, a prohibition of the carriage of such articles from State to
CHAMPION V. AMES. 315
State is not a fit or appropriate mode for the regulation of that
particular kind of commerce? If lottery traffic, carried on
through interstate commerce, is a matter of which Congress may
take cognizance and over which its power may be exerted, can it
be possible that it must tolerate the traffic, and simply regulate
the manner in which it may be carried on? Or may not Con-
gress, for the protection of the people of all the States, and
under the power to regulate interstate commerce, devise such
means, within the scope of the Constitution, and not prohibited
by it, as will drive that traffic out of commerce among the
States?
In determining whether regulation may not under some cir-
cumstances properly take the form or have the effect of pro-
hibition, the nature of the interstate traffic which it was sought
by the act of May 2, 1895, to suppress cannot be overlooked.
When enacting that statute Congress no doubt shared the views
upon the subject of lotteries heretofore expressed by this court.
In Phalen v. Virginia, 8 How. 163, 168, after observing that the ■
suppression of nuisances injurious to public health or morality is
among the most important duties of government, this court said :
"Experience has shown that the common forms of gambling are
comparatively innocuous when placed in contrast with the wide-
spread pestilence of lotteries. The former are confined to a few
persons and places, but the latter infests the whole community;
it enters every dwelling; it reaches every class; it preys upon
the hard earnings of the poor ; it plunders the ignorant and sim-
ple." In other cases we have adjudged that authority given
by legislative enactment to carry on a lottery, although based
upon a consideration in money, was not protected by the contract
clause of the Constitution ; this, for the reason that no State may
bargain away its power to protect the public morals, nor excuse
its failure to perform a public duty by saying that it had agreed,
by legislative enactment, not to do so. Stone v. Mississippi, 101
U. S. 814; Douglas v. Kentucky, 168 U. S. 488.
If a State, when considering legislation for the suppression of
lotteries within its own limits, may properly take into view the
evils that inhere in the raising of money, in that mode, why may
not Congress, invested with the power to regulate commerce
among the several States, provide that such commerce shall not
be polluted by the carrying of lottery tickets from one State to
another? In this connection it must not be forgotten that the
power of Congress to regulate commerce among the States is
plenary, is complete in itself, and is subject to no limitations
316 CASES ON CONSTITUTIONAL LAW.
except such as may be found in the Constitution. What pro-
vision in that instrument can be regarded as limiting the exer-
cise of the power granted? What clause can be cited which, in
any degree, countenaijces the suggestion that one may, of right,
carry or cause to be carried from one State to another that which
will harm the public morals ? We cannot think of any clause of
that instrument that could possibly be invoked by those who
assert their right to send lottery tickets from State to State
except the one providing that no person shall be deprived of his
liberty without due process of law. We have said that the lib-
erty protected by the Constitution embraces the right to be free
in the enjoyment of one's faculties; "to be free to use them in all
lawful ways ; to live and work where he will ; to earn his liveli-
hood by any lawful calling ; to pursue any livelihood or avoca-
tion, and for that purpose to enter into aU contracts which may
be proper." AUgeyer v. Louisiana, 165 U. S. 578, 589. But
surely it will not be said to be a part of anyone's liberty, as recog-
nized by the supreme law of the land, that he shall be allowed to
introduce into commerce among the States an element that will
be confessedly injurious to the public morals.
If it be said that the act of 1895 is inconsistent with the
Tenth Amendment, reserving to the States respectively, or to
the people, the powers not delegated to the United States, the
answer is that the power to regulate commerce among the States
has been expressly delegated to Congress.
Besides, Congress, by that act, does not assume to interfere
with traffic or commerce in lottery tickets carried on exclusively
within the limits of any State, but has in view only commerce of
that kind among the several States. It has not assumed to inter-
fere with the completely internal affairs of any State, and has
only legislated in respect of a matter which concerns the people
of the' United States. As a State may, for the purpose of
guarding the morals of its own people, forbid all sales of lottery
tickets within its limits, so Congress, for the purpose of guarding
the people of the United States against the "widespread pesti-
lence of lotteries" and to protect the commerce which concerns
all the States, may prohibit the carrying of lottery tickets from
one State to another. In legislating upon the subject of the
traffic in lottery tickets, as carried on through interstate com-
merce. Congress only supplemented the action of those States —
perhaps all of them — which, for the protection of the public
morals, prohibit the drawing of lotteries, as well as the sale or
circulation of lottery tickets, within their respective limits. It
CHAMPION V. AMES. 317
said, in effect, that it would not permit the declared policy of
the States, which sought to protect their people against the mis-
chiefs of the lottery business, to be overthrown or disregarded
by the agency of interstate commerce. We should hesitate long
before adjudging that an evil of such appalling character, car-
ried on through interstate commerce, cannot be met and crushed
by the only power competent to that end. We say competent
to that end, because Congress alone has the power to occupy, by
legislation, the whole field of interstate commerce. What was
said by this court upon a former occasion may well be here
repeated: "The framers of the Constitution never intended
that the legislative power of the Nation should find itself incapa-
ble of disposing of a subject-matter specifically committed to its
charge. " In re Rahrer, 140 U. S. 545, 562. If the carrying of
lottery tickets from one State to another be interstate commerce,
and if Congress is of opinion that an effective regulation for the
suppression of lotteries, carried on through such commerce, is
to make it a criminal offense to cause' lottery tickets to be car-
ried from one State to another, we know of no authority in the
courts to hold that the means thus devised are not appropriate
and necessary to protect the country at large against a species of
interstate commerce which, although in general use and some-
what favored in both national and state legislation jn the early
history of the country, has grown into disrepute, and has
become offensive to the entire people of the Nation. It is a
kind of traffic which no one can be entitled to pursue as of
right. . . .
It is said, however, that if, in order to suppress lotteries carried
on through interstate commerce, Congress may exclude lottery
tickets from such commerce, that principle leads necessarily to
the conclusion that Congress may arbitrarily exclude from com-
merce among the States any article, commodity, or thing, of
whatever kind or nature, or however useful or valuable, which
it may choose, no matter with what motive, to declare shall not
be carried from one State to another. It will be time enough to
consider the constitutionality of such legislation when we must
do so. The present case does not require the court to declare the
full extent of the power that Congress may exercise in the regu-
lation of commerce among the States. We may, however, repeat,
in this connection, what the court has heretofore said, that the
power of Congress to regulate commerce among the States,
although plenary, cannot be deemed arbitrary, since it is subject
to such limitations or restrictions as are prescribed by the Con-
318 CASES ON CONSTITUTIONAL LAW.
stitution. This power, therefore, may not be exercised so as to
infringe rights secured or protected by that instrument. It
would not be difficult to imagine legislation that would be justly
liable to such an objection as that stated, and be hostile to the
objects for the accomplishment of which Congress was invested
with the general power to regulate commerce among the several
States. But, as often said, the possible abuse of a power is not
an argument against its existence. There is probably no govern-
mental power that may not be exerted to the injury of the
public. If what is done by Congress is manifestly in excess of
the powers granted to it, then upon the courts will rest the duty
of adjudging that its action is neither legal nor binding upon the
people. But if what Congress does is within the limits of its
power, and is simply unwise or injurious, the remedy is that
suggested by Chief Justice Marshall in Gibbons v. Ogden, when
he said: "The wisdom and the discretion of Congress, their
identity with the people, and the influence which their con-
stituents possess at elections, are, in this, as in many other
instances, as that, for example, of declaring war, the sole
restraints on which they have relied, to secure them from its
abuse. They are the restraints on which the people must often
rely solely, in all representative governments." . . .
Tbe judgment is Affirmed.
Mr. Chief Justice Fuller, with whom concur Mr. Justice
Brewer, Mr. Justice Shiras, and Mr. Justice Peckham, dis-
senting. . . .
Note. — ^For other examples of proMbition as a means of regulation, see
United States v. Brig William (1808), 2 Hall's Law Journal, 255 (the
Embargo Act); United States v. HoUiday (1866), 3 Wallace, 407 (com-
merce with Indians) ; Buttfield v. Stranahan (1904), 192 U. S. 470 (exclu-
sion of merchandise) ; United States v. Delaware & Hudson Ry. (1909),
213 U. S. 366 (carriers forbidden to transport their own products) ; Hope
V. United States (1913), 227 U. S. 308 (transportation of women for im-
moral purposes).
CHAPTER Vm.
DUE PROCESS OF LAW.
No person shall be . . . deprived of life, liberty, or prop-
erty without due process of law.
Constitution of the United States, Amendment V.
No State shall . . . deprive any person of life, liberty or
property without due process of law.
Constitution of the United States, Amendment XIV, sec. 1.
Section 1. General Conception of Due Process.
TWINING V. STATE OF NEW JERSEY.
SupEEME Court of the United States. 1908.
211 U. S. 78; 53 Lawyers' Ed. 97.
Error to the Court of Errors and Appeals of the State of New
Jersey.
[The statement of facts and the first part of the opinion are
given ante, p. 114.]
Mr. Justice Moody . . . delivered the opinion of the
court. . . .
The defendants, however, do not stop here. They appeal to
another clause of the Fourteenth Amendment, and insist that
the self-incrimination, which they alleged the instruction to the
jury compelled, was a denial of due process of law. This con-
tention requires separate consideration, for it is possible that
some of the personal rights safeguarded by the first eight Amend-
ments against National action may also be safeguarded against
State action, because a denial of them would be a denial of due
process of law. Chicago, Burlington & Quincy Railroad v. Chi-
cago, 166 U. S. 226. If this is so, it is not because those rights
are enumerated in the first eight Amendments, but because they
are of such a nature that they are included in the conception of
due process of law. Few phrases of the law are so elusive of
exact apprehension as this. Doubtless the difficulties of ascer-
taining its connotation have been increased in American juris-
319
320 CASES ON CONSTITUTIONAL LAW.
prudence, where-it has been embodied in constitutions and put
to new uses as a limit on legislative power. This court has
always declined to give a comprehensive definition of it, and has
preferred that its full meaning should be gradually ascertained
by the process of inclusion and exclusion in the course of the
decisions of cases as they arise. There are certain general prin-
ciples well settled, however, which narrow the field of discus-
sion and may serve as helps to correct conclusions. These prin-
ciples grow out of the proposition universally accepted by
American courts on the authority of Coke, that the words "due
process of law" are equivalent in meaning to the words "law of
the land," contained in that chapter of Magna Carta, which
provides that "no freeman shall be taken, or imprisoned, or
disseised, or outlawed, or exiled, or any wise destroyed; nor
shall we go upon him, nor send upon him, but by lawful judg-
ment of his peers or by the law of the land." Murray v. Hobo-
ken Land Co., 18 How. 272 ; Davidson v. New Orleans, 96 U. S.
97; Jones v. Bobbins, 8 Gray, 329; Cooley, Const. Lim. (7th ed.)
500; McGehee, Due Process of Law, 16. From the considera-
tion of the meaning of the words in the light of their historical
origin this court has drawn the following conclusions :
First. What is due process of law may be ascertained by an
examination of those settled usages and modes of proceedings
existing in the common and statute law of England before the
emigration of our ancestors, and shown not to have been unsuited
to their civil and political condition by having been acted on by
them after the settlement of this country. . . . "A process
of law," said Mr. Justice Matthews, . . . "which is not
otherwise forbidden, must be taken to be due process of law, if
it can show the sanction of settled usage both in England and
this country." Hurtado v. California, 110 U. S. 516, 528.
Second. It does not follow, however, that a procedure settled
in English law at the time of the emigration, and brought to
this country and practiced by our ancestors, is an essential ele-
ment of due process of law. If that were so the procedure of
the first half of the seventeenth century would be fastened upon
the American jurisprudence like a straight- jacket, only to be
unloosed by constitutional amendment. That, said Mr. Justice
Matthews, in the same case, p. 529, "would be to (Jeny every
quality of the' law but its age, and to render it incapable of
progress or improvement." Holden v. Hardy, 169 U. S. 366,
388 ; Brown v. New Jersey, 175 U. S. 172, 175.
Third. But, consistently with the requirements of due process.
TWINING V. STATE OF NEW JERSEY. 321
no change in ancient procedure can be made which disregards
those fundamental principles, to be ascertained from time to
time by judicial action, which have relation to process of law
and protect the citizen in his private right, and guard him
against the arbitrary action of government. . . .
The question under consideration may first be tested by the
application of these settled doctrines of this court. If the state-
ment of Mr. Justice Curtis, as elucidated in Hurtado v. Cali-
fornia, is to be taken literally, that alone might almost be deci-
sive. For nothing is more certain, in point of historical fact,
than that the practice of compulsory self-incrimination in the
courts and elsewhere existed for four hundred years after the
granting of Magna Carta, continued throughout the reign of
Charles I (though then beginning to be seriously questioned),
gained at least some foothold among the early colonists of this
country, and was not entirely omitted at trials in England until
the eighteenth century. Wigmore on Evidence, Sec. 2250 (see
for the Colonies, note 108) ; Hallam's Constitutional History of
England, ch. VIII, 2 Widdleton's American ed. 37 (describ-
ing the criminal jurisdiction of the Court of Star Chamber) ;
Bentham's Rationale of Judicial Evidence, book IX, ch. Ill,
§IV. . . .
The question before us is the meaning of a constitutional pro-
vision which forbids the States to deny to any person due process
of law. In the decision of this question we have the authority
to take into account only those fundamental rights which are
expressed in that provision, not the rights fundamental in citi-
zenship, state or National, for they are secured otherwise, but
the rights fundamental in due process and therefore an essential
part of it. We have to consider whether the right is so funda-
mental in due process that a refusal of the right is a denial of
due process. One aid to the solution of the question is to inquire
how the right was rated during the time when the meaning of
due process was in a formative state and before it was incorpo-
rated in American constitutional law. Did those who then were
formulating and insisting upon the rights of the people enter-
tain the' view that the right was so fundamental that there
could be no due process without it? It has already appeared
that, prior to the formation of the American Constitutions, in
which the exemption from compulsory self-incrimination was
specifically secured, separately, independently, and side by side
with the requirement of due process, the doctrine was formed, as
other doctrines of the law of evidence have been formed, by the
E. C. L.— 21
322 CASES ON CONSTITUTIONAL LAW.
course of decision in the courts covering a long period of time.
Searching further, we find nothing to show that it was then
thought to be other than a just and useful principle of law.
None of the great instruments in which we are accustomed to
look for the declaration of the fundamental rights made refer-
ence to it. The privilege was not dreamed of for hundreds of
years after Magna Carta (1215) and could not have been
implied in the "law of the land" there secured. The Petition
of Right (1629), though it insists upon the right secured by
Magna Carta to be condemned only by the law of the land, and
sets forth by way of grievance divers violations of it, is silent
upon the practice of compulsory self-incrimination, though it
was then a matter of common occurrence in all the courts of
the realm. The Bill of Rights of the first year of the reign of
William and Mary (1689) is likewise silent, though the practice
of questioning the prisoner at his trial had not then ceased.
The negative argument which arises out of the omission of all
reference to any exemption from compulsory self-incrimination
in these three great declarations of English liberty (though it
is not supposed to amount to a demonstration) is supported by
the positive argument that the English Courts and Parliaments,
as we have seen, have dealt with the exemption as they would
have dealt with any other rule of evidence, apparently with-
out a thought that the question was affected by the law of the
land of Magna Carta, or the due process of law which is its
equivalent.
We pass by the meager records of the early colonial time, so far
as they have come to our attention, as affording light too un-
certain for guidance. See Wigmore, § 2250, note 108 ; Henning's
Stat, at Large, 422 (Va., 1677) ; 1 Winthrop's History of New
England, 47, Provincial Act, 4 W. & M. Ancient Charters,
Massachusetts, 214. Though it is worthy of note that neither
the declaration of rights of the Stamp Act Congress (1765) nor
the declaration of rights of the Continental Congress (1774)
nor the ordinance for the government of the Northwestern
Territory included the privilege in their enumeration of funda-
mental rights.
But the history of the incorporation of the privilege in an
amendment to the National Constitution is full of significance in
this connection. . . . The nine States requisite to put the
Constitution in operation ratified it without a suggestion of in-
corporating this privilege. . . .
TWINING V. STATE OF NEW JERSEY. 323
Thus it appears that four only of the thirteen original States
insisted upon incorporating the privilege in the Constitution,
and they separately and simultaneously with the requirement oJ!
due process of law, and that three States proposing amendments
were silent upon this subject. ' It is worthy of note that two of
these four States did not incorporate the privilege in their own
constitutions, where it would have had a much wider field of use-
fulness, until many years after. New York in 1821 and Rhode
Island in 1842 (its first constitution). This survey does not
tend to show that it was then in this country the universal or
even general belief that the privilege ranked among the funda-
mental and inalienable rights of mankind; and what is more
important here, it affirmatively shows that the privilege was not
conceived to be inherent in due process of law, but on the other
hand a right separate, independent and outside of due process.
Congress, in submitting the amendments to the several States,
treated the two rights as exclusive of each other. Such also has
been the view of the States in framing their own constitutions,
for in every ease, except in New Jersey and Iowa, where the due
process clause or its equivalent is included, it has been thought
necessary to include separately the privilege clause. Nor have
we been referred to any decision of a state court save one (State
V. Height, 117 Iowa, 650), where the exemption has been held to
be required by due process of law. The inference is irresistible
that it has been the opinion of constitution makers that the privi-
lege, if fundamental in any sense, is not fundamental in due
process of law, nor an essential part of it. We believe that
this opinion is proved to have been correct by every historical
test by which the meaning of the phrase can be tried.
The decisions of this court, though they are silent on the pre-
cise question before us, ought to be searched to discover if ,thejj
present any analogies which are helpful in its decision. The
essential elements of due process of law, already established by
them, are singularly few, though of wide application and deep
significance. We are not here concerned with due process in
restraining substantive laws, as, for example, that which forbids
the taking of private property for public use without compen-
sation. We' need notice now only those cases which deal with
the principles which must be observed in the trial of criminal
and civil causes. Due process requires that the court which
assumes to determine the rights of parties shall have jurisdiction,
Pennoyer v. Neff, 95 U. S. 714, 733 ; Scott v. McNeal, 154 U. S.
324 CASES ON CONSTITUTIONAL LAW.
34 ; Old Wayne Life Association v. McDonough, 204 U. S. 8, and
that there shall be notice and opportunity for hearing given
the parties, Hovey v. Elliott, 167 U. S. 409 ; Roller v. Holly, 176
U. S. 398 ; and see Londoner v. Denver, 210 U. S. 373. Subject
to these two fundamental conditions, which seem to be universally
prescribed in all systems of law established by civilized countries,
this court has up to this time sustained all state laws, statutory
or judicially declared, regulating procedure, evidence and meth-
ods of trial, and held them to be consistent with due process of
law. Walker v. Sauvinet, 92 U. S. 90 ; Ee Converge, 137 U. S.
624; Caldwell v. Texas, 137 U. S. 692 ; Leeper v. Texas, 139 U. S.
462; Hallinger v. Davis, 146 U. S. 314; McNulty v. California,
149 U. S. 645; McKane v. Durston, 153 U. S. 684; Iowa Central
V. Iowa, 160 U. S. 389 ; Lowe v. Kansas, 163 U. S. 81 ; Allen v.
Georgia, 166 U. S. 138 ; Hodgson v. Vermont, 168 U. S. 262 ;
Brown v. New Jersey, 175 U. S. 172 ; BoUn v. Nebraska, 176 U. S.
83 ; Maxwell v. Dow, 176 U. S. 581 ; Simon v. Craft, 182 U. S.
427 ; West V. Louisiana, 194 U. S. 258 ; Marvin v. Trout, 199
U. S. 212 ; Rogers v. Peck, 199 U. S. 425 ; Howard v. Kentucky,
200 U. S. 164 ; Rawlins v. Georgia, 201 U. S. 638 ; Felts v. Mur-
phy, 201 U. S. 123.
Among the most notable of these decisions are those sustaining
the denial of jury trial both in civil and criminal cases, the sub-
stitution of infoijmations for indictments by a grand jury, the
ena(3tment that the possession of policy slips raises a presumption
of illegality, and the admission of the deposition of an absent
witness in a criminal case. The cases proceed Upon the theory
that, given a court of justice which has jurisdiction and acts,
not arbitrarily but in conformity with a general law, upon evi-
dence, and after inquiry made with notice to the parties affected
and opportunity to be heard, then all the requirements of due
process, so far as it relates to procedure in court and methods
of trial and character and effect of evidence, are complied
with. . . .
It is impossible to reconcile the reasoning of these cases and
the rule which governed their decision with the theory that an
exemption from compulsory self-incrimination is included in the
conception of due process of law. Indeed, the reasoning for
including indictment by a grand jury and trial by a petit jury
in that conception, which has been rejected by this court in
Hurtado v. California and Maxwell v. Dow, was historically and
in principle much stronger. Clearly appreciating this, Mr. Jus-
TWINING V. STATE OF NEW JERSEY. 325
tice Harlan, in his dissent in each of these eases, pointed out
that the inexorable logic of the reasoning of the court was to
allow the States, so far as the Federal Constitution was con-
cerned, to compel any person to be a witness against himself.
In Missouri v. Lewis, 101 U. S. 22, Mr. Justice Bradley, speaking
for the whole court, said, in effect, that the Fourteenth Amend-
ment would not prevent a State from adopting or continuing
the civil law instead of the common law. This dictum has been
approved and made an essential part of the reasoning of the
decision in Holden v. Hardy, 169 U. S. 387, 389, and Maxwell v.
Dow, 176 U. S. 598. The statement excludes the possibility that
the privilege is essential to due progress, for it hardly need be
said that the interrogation of the accused at his trial is the prac-
tice in the civil law.
Even if the historical meaning of due process of law and the
decisions of this court did not exclude the privilege from it, it
would be going far to rate it as an immutable principle of jus-
tice which is the inalienable possession of every citizen of a free
government. Salutary as the principle may seem to the great
majority, it cannot be ranked with the right to hearing before
condemnation, the immunity from arbitrary power not acting by
general laws, and the inviolability of private property. The
wisdom of the exemption has never been universally assented
to since the days of Bentham; many 'doubt it to-day, and it is
best defended not as an unchangeable principle of universal jus-
tice but as a law proved by experience to be expedient. See Wig-
more, Sec. 2251. It has no place in the jurisprudence of civil-
ized and free countries outside the domain of the common law,
and it is nowhere observed among our own people in the search
for truth outside the administration of the law. It should, must
and wiU be rigidly observed where it is secured by specific con-
stitutional safeguards, but there is nothing in it which gives it a
sanctity above and before constitutions themselves. Much might
be said in favor of the view that the privilege was guaranteed
against state impairment as a privilege and immunity of
National citizenship, but, as has been shown, the decisions of
this court have foreclosed that view. There seems to be no rea-
son whatever, however, for straining the meaning of due process
of law to include this privilege within it, because, perhaps, we
may think it of great value. The States had guarded the privi-
lege to the satisfaction of their own people up to the adoption
of the Fourteenth Amendment. No reason is perceived why they
cannot continue to do so. The power of their people ought not
326 CASES ON CONSTITUTIONAL LAW.
to be fettered, their sense of responsibility lessened, and their
capacity for sober and restrained self-government weakened by
forced construction of the Federal Constitution. If the people
of New Jersey are not content with the law as declared in
repeated decisions of their courts, the remedy is in their own
hands. They may, if they choose, alter it by legislation, as the
people of Maine did when the courts of that State made the
same ruling. State v. Bartlett, 55 Maine', 200; State v. Law-
rence, 57 Maine, 574; State v. Cleaves, 59 Maine, 298; State v.
Banks, 78 Maine, 490, 492 ; Rev. Stat. ch. 135, § 19.
We have assumed only for the purpose of discussion that what
was done in the ease at bar was an infringement of the privilege
against self-incrimination. We do not intend, however, to lend
any countenance to the truth of that assumption. . . . The
authorities upon the question are in conflict. We do not pass
upon the conflict because, for the' reasons given, we think that
the exemption from compulsory self-incrimination in the courts
of the States is not secured by any part of the Federal Constitu-
tion. Judgment affirmed.
Me. Justice Harlan, dissenting. . . .
Note. — Many writers have sought to trace the phrase ' ' due process of
law" to this thirty-ninth (twenty-ninth of Henry Ill's reissue of 1225)
chapter of Magna Charta:
No freeman shall be taken or imprisoned or disseized or exiled
or in any way destroyed, nor will we go upon him nor send upon
him, except by the lawful judgment of his peers or by the law of
the land.
Coke's identification of the term "due process" with the term "law
of the land ' ' as found in Magna Charta has been generally followed by the
courts, though its correctness as a matter of history has been challenged
by several scholars. As to the history and meaning of this section of Magna
Charta, see Bemont, Chartes des Liberies Anglaises; McKechnie, Magna
Carta; Harcourt, His Grace the Steward and Trial of Peers; Adams, The
Origin of the English Constitution; Pollock and Maitland, Bistory of
English Law Before the Time of Edward I ; Bigelow, History of Procedure
in England, For an acute and convincing criticism of the older view of
Magna Charta see C. H. Mcllwain, ' ' Due Process of Law in Magna Charta, ' '
Columbia Law Beview, xiv 27. Whatever the historical relation of the
phraseology of Magna Charta and the Fourteenth Amendment may have
been, their interpretation has radically differed in that while Magna Charta
has been regarded as a restriction upon the executive and the courts, the
Fourteenth Amendment was at first thought to be an inhibition only on the
State legislatures. It was not until the decision in Ex parte Virginia (1880),
TWINING V. STATE OF NEW JERSEY. 32'f
100 U. S. 339, that it was clearly held applicable to any agent through
which the State might act.
The phrase "due process of law" has also been associated with the
doctrine of fundamental rights, operating as an inherent limitation on all
legislative power and which was given currency by Lord Coke in Dr. Bon-
ham's Case (1610), 8 Eep. 118o:
It appears in our books, that in many cases, the common law
will control acts of Parliament, and sometimes adjudge them to be
utterly void : for when an act of Parliament is against common right
and reason, or repugnant, or impossible to be performed, the com-
mon law wiU control it and adjudge such act to be void.
This was approved by Lord Hobart in Day v. Savadge (1623), Hobart,
87, where he said:
Even an Act of Parliament, made against natural equity, as to
make a man judge in his own case, is void in itself, for jura naturce
sunt immutabilia, and they are leges legum.
This dictum, even though supported by the great name of Lord Coke,
seems never to have been made the ground for annulling an act of Parlia-
ment, and the doctrine itself was expressly disavowed by Mr. Justice Willes,
who said in Lee v. Bude and Torrington By. (1871), L. E. 6 C. P. 576, 582,
that the ' ' dictum stands as a warning rather than as an authority to be
followed. ' ' In America the doctrine proved useful to the leaders of the
Eevolution as a justification of resistance to the laws of Parliament, and
after the establishment of government under the Constitution courts not
infrequently asserted that the legislative power was subject to certain inher-
ent limitations to be found in the fundamental laws of nature or in the
maxims of free government. In Calder v. BuU (1798), 3 Dallas, 386, Mr.
Justice Chase said:
I cannot subscribe to the omnipotence of a State Legislature,
or think it is absolute and without controul, although its authority
should not be expressly restrained by the Constitution, or funda-
mental law, of the State. The people of the United States erected
their Constitutions, or forms of government, to establish justice, to
promote the general welfare, to secure the blessings of liberty, and
to protect their persons and property from violence. The purposes
for which men enter into society will determine the nature and
terms of social compact; and as they are the foundation of the
legislative power, they will decide what are the proper objects of
it. The nature and ends of legislative power will limit the exer-
cise of it. . . . There are certain vital principles in our free,
Eepublican governments, which will determine and overrule an
apparent and flagrant abuse of legislative power; as to authorize
manifest injustice by positive law; or to take away that security
for personal liberty, or private property, for the protection whereof
the government was established. An Act of the Legislature (for I
cannot call it a law) contrary to the great first principles of the
social compact, cannot be considered a rightful exercise of legisla-
tive authority.
328 CASES ON CONSTITUTIONAL LAW.
In Fletcher v. Peck (1810), 6 Cranch, 87, 135, Chief Justice Marshall
said:
It may well be doubted whether the nature of society and of
government does not prescribe some limits to the legislative power ;
and if any be prescribed, where are they to be found, if the prop-
erty of an individual, fairly and honestly acquired, may be seized
without compensation?
The same view was expressed by Justice Story in Wilkinson v. Leland
(1829), 2 Peters, 627, 657:
That government can scarcely be deemed to be free, where the
rights of property are left solely dependent upon the will of a
legislative body, without any restraint. The fundamental maxims
of a free government seem to require that the rights of personal
liberty and private property should be held sacred.
This doctrine of a supreme fundamental law seems to have been in the
mind of the court in Webster v. Eeid (1851), 11 Howard, 437, and in
Hays V. Pacific Mail Steamship Co. (1854), 17 Howard, 596. In neither
case was the decision based on any constitutional provision, and in Web-
ster V. Eeid, counsel for the appellant expressly argued that the statute
involved ' ' was made in subversion of principles of common right, and
therefore void." 11 Howard, 453. Since the adoption of the Fourteenth
Amendment the doctrine of fundamental right has often been referred to
by the Supreme Court, but has seldom been made the basis of decision.
It has been merged in the conception of due process of law. A legislative
act which would formerly have been condemned as a violation of natural
right would now be condemned because contrary to the due process clause
of the Federal Constitution. For examples of the present treatment of
such cases as Webster y. Eeid, see Dewey v. Des Moines (1899), 173 V. S.
193, and Eoller v. Holly (1900), 176 U. S. 398. The older writers fre-
quently mentioned the transfer of A's property to B by a legislative enact-
ment as an example of an act that would be void because against common
right and the fundamental law. In Davidson v. New Orleans (1877), 96
U. S. 77, 102, the Supreme Court considered such a statute and said, with
cautious timidity, that ' ' it seems to us " that it ' ' would, if effectual, deprive
A of his property without due process of law, within the meaning of the
constitutional provision." But as the court became more familiar with
the idea, it adopted a bolder tone, until finally, in Chicago, Burlington &
Quincy Ey. v. Chicago (1897), 166 U. S. 226, 241, it said:
In our opinion, a judgment of a state court, even if it be
authorized by statute, whereby private property is taken for the
State or under its direction for public use, without compensation
made or secured to the owner, is, upon principle and authority,
wanting in the due process of law required by the Fourteenth
Amendment of the Constitution of the United States, and the
afiirmance of such judgment by the highest court of the State is a
denial by that State of a right secured to the owner by that instru-
ment-
HARVESTER CO. v. KENTUCKY. 329
The phrase "due process of law" occurs in both the Filth and Four-
teenth Amendments. The first eight amendments apply only to the Federal
Government, Barron v. Baltimore (1833), 7 Peters, 243, but the Fourteenth
Amendment has been held to furnish the same protection against arbitrary
action by the States as is afforded by the Fifth Amendment against similar
action by the Federal Government. Hibben v. Smith (1903), 191 XJ. S.
310, 325. The fact that other personal rights, such as the right to com-
pensation for private property taken for a public use, are specifically enu-
merated in the Fifth Amendment does not exclude them from the term
"due process" as used in the Fourteenth Amendment. Chicago, Burling-
ton & Quincy Ey. v. Chicago (1897), 166 U. S. 226.
The courts have been as reluctant to undertake a comprehensive defini-
tion of the phrase ' ' due process of law " as of the phrase ' ' privilege and
immunities of citizens. ' ' In numerous decisions they have cited the much-
quoted passage from Daniel Webster's argument in the Dartmouth College
Case, 4 Wheaton, 518, 581 : '
By the law of the land is most clearly intended the general
law; a law which hears before it condemns; which proceeds upon
inquiry, and renders judgment only after trial. The meaning is
that every citizen shall hold his life, liberty, property and immuni-
ties under the protection of the general rules which govern society.
Everything which may pass under the form of an enactment is
not therefore to be considered the law of the land.
INTERNATIONAL HARVESTER COMPANY OF AMERICA
V. COMMONWEALTH OF KENTUCKY.
Supreme Court of the United States. 1914.
234 U. S. 216; 58 Lawyers' Ed. 1284.
Error to the Court of Appeals of the State of Kentucky.
Mr. Justice Holmes delivered the opinion of the court.
The plaintiff in error was prosecuted, convicted and fined in
three different counties for having entered into an agreement
with other named companies for the purpose of controlling the
price of harvesters, etc., manufactured by them and of enhancing
it above their real value ; and for having so fixed and enhanced
the price, and for having sold their harvesters, etc., at a price
in excess of their real value, in pursuance of the agreement
alleged. The' judgments were affirmed by the Court of Appeals.
147 Kentucky, 564. Id. 795. 148 Kentucky, 572, The plaintiff
in error saved its rights under the Fourteenth Amendment and
brought the cases here. . . .
"When the Court of Appeals came to deal with the act of 1890,
330 CASES ON CONSTITUTIONAL LAW.
I
the constitution of 1891, and the act of 1906, it reached the con-
clusion, which now may be regarded as the established con-
struction of the three taken together, that by interaction and to
avoid questions of constitutionality, they were to be talien to
make any combination for the purpose of controlling prices law-
ful unless for the purpose or with the effect of fixing a price that
was greater or less than the real value of the article. Owen
County Burley Tobacco Society v. Brumback, 128 Kentucky,
137, 151. Commonwealth v. International Harvester Co. of
America, 131 Kentucky, 551, 568, 571-573. International Har-
vester Co. of America v. Commonwealth, 137 Kentucky,
668. . . .
The plaintiff in error contends that the law as construed offers
no standard of conduct that it is possible to know. To meet
this, in the present and earlier cases, the real value is declared
to be "its market value under fair competition, and under normal
market conditions." 147 Kentucky, 566. Commonwealth v.
International Harvester Co. of America, 131 Kentucky, 551, 576.
International Harvester Co. of America v. Commonwealth, 137
Kentucky, 668, 677, 678. "We have to consider whether in appli-
cation this is more than an illusory form of words, when nine
years after it was incorporated, a combination invited by the
law is required to guess at its peril what its product would have
sold for if the combination had not existed and nothing else vio-
lently affecting values had occurred. It seems that since 1902
the price of the machinery sold by the plaintiff in error has
risen from ten to fifteen per cent. The testimony on its behalf
showed that meantime the cost of materials used had increased
from 20 to 25 per cent and labor 27% per cent. Whatever doubt
there may be about the exact figures we hardly suppose the fact
of a rise to be denied. But in order to reach what is called the
real value, a price from which all effects of the combination are
to be eliminated, the plaintiff in error is told that it cannot avail
itself of the rise in materials because it was able to get them
cheaper through one of the subsidiary companies of the com-
bination, and that the saving through the combination more than
offset all the rise in cost.
This perhaps more plainly concerns the justice of the law in
its bearing upon the plaintiff in error, when compared with its
operation upon tobacco raisers who are said to have doubled or
trebled their prices, than on the constitutional question proposed.
But it also concerns that, for it shows how impossible it is to
think away the principal facts of the case as it exists and say
HuRTAt)0 V. California. 331
what would have been the price in an imaginary world. Value
is the effect in exchange of the relative social desire for com-
pared objects expressed in terms of a common denominator. It
is a fact and generally is more or less easy to ascertain. But
what it would be with such increase of a never extinguished com-
petition as it might be guessed would have existed had the com-
bination not been made, with exclusion of the actual effect of
other abnormal influences, and, it would seem with exclusion
also of any increased efficiency in the machines but with inclu-
sion of the effect of the combination so far as it was economically
beneficial to itself and the community, is a problem that no
human ingenuity could solve. The reason is not the general
uncertainties of a jury trial, but that the elements necessary to
determine the imaginary ideal are uncertain both in nature and
degree of effect to the acutest commercial mind. The very com-
munity, the intensity of whose wish relatively to its other com-
peting desires determines the price that it would give, has to be
supposed differently organized and subject to other influences
than those under which it acts. It is easy to put simple cases;
but the one before us is at least as complex as we have sup-
posed, and the law must be judged by it. In our opinion it can-
not stand. . . .
If business is to go on, men must unite to do it and must sell
their wares. To compel them to guess on peril of indictment
what the community would have given for them if the continu-
ally changing conditions were other than they are, to an uncer-
tain extent ; to divine prophetically what the reaction of only par-
tially determinate facts would be upon the imaginations and
desires of purchasers, is to exact gifts that mankind does not
possess. Judgments reversed.
Mr. Justice McKenna and Mr. Justice Pitney dissent.
Section 2. Due Process in Procedure.
HURTADO V. CALIFORNIA.
Supreme Coukt op the United States. 1884.
110 U. S. 516; 28 Lawyers' Ed. 232.
In error to the Supreme Court of California.
The Constitution of the State of California, adopted in 1879,
in article 1, section 8, provides as follows :
"Offenses heretofore required to be prosecuted by indictment
332 CASES ON CONSTITUTIONAL LAW.
shall be prosecuted by information, after examination and com-
mitment by a magistrate, or by indictment, with or without such
examination and commitment, as may be prescribed by law. A
grand jury shall be drawn and summoned at least once a year in
each county. "...
[Hurtado, having been charged with murder by an informa-
tion filed with the District Attorney, was tried by jury, convicted,
and sentenced to be hanged. Thereupon he filed certain objec-
tions to the execution of the sentence, one of which recited "that
the said plaintiff in error had been held to answer for the said
crime of murder by the district attorney of the said county
of Sacramento, upon an information filed by him, and had been
tried and illegally found guilty of the said crime, without any
presentment or indictment of any grand or other jury, and that
the judgment rendered upon the alleged verdict of the jury in
such case was and is void, and if executed would deprive the
plaintiff in error of his life or liberty without due process of
law."]
Mr. Justice Matthews delivered the opinion of the court."
After reciting the facts in the foregoing language, he continued :
It is claimed on behalf of the prisoner that the conviction and
sentence are void, on the ground that they are repugnant to that
clause of the Fourteenth Article of Amendment of the Constitu-
tion of the United States which is in these words :
"Nor shall any State deprive any person of life, liberty, or
property without due process of law."
The proposition of law we are asked to af&rm is that an indict-
ment or presentment by a grand jury, as known to the common
law of England, is essential to that "due process of law," when
applied to prosecutions for felonies, which is secured and guar-
anteed by this provision of the Constitution of the United States,
and which accordingly it is forbidden to the States respectively to
dispense with in the administration of criminal law. . . .
[Here follow citations from Kalloch v. Superior Court, 56 Cal.
229, and Rowan v. The State, 30 Wis. 129.]
On the other hand, it is maintained on behalf of the plaintiff
in error that the phrase "due process of law" is equivalent to
" law of the land, ' ' as found in the 29th chapter of Magna Charta ;
that by immemorial usage it has acquired a fixed, definite,
and technical meaning; that it refers to and includes, not
only the general principles of public liberty and private right,
which lie at the foundation of all free government, but the very
HURTADO V. CALIFORNIA. 333
institutions which, venerable by time and custom, have been
tried by experience and found fit and necessary for the pres-
ervation of those principles, and which, having been the birth-
right and inheritance of every English subject, crossed the
Atlantic with the colonists and were transplanted and established
in the fundamental laws of the State; that, having been origi-
nally introduced into the Constitution of the United States as a
limitation upon the powers of the government, brought into be-
ing by that instrument, it has now been added as an additional
security to the individual against oppression by the States them-
selves; that one of these institutions is that of the grand jury,
an indictment or presentment by which against the accused in
cases of alleged felonies is an essential part of due process of
law, in order that he may not be harassed or destroyed by prose-
cutions founded only upon private malice or popular fury.
The Constitution of the United States was ordained, it is true,
by descendants of Englishmen, who inherited the traditions of
English law and history ; but it was made for an undefined and
expanding future, and for a people gathered and to be gathered
from many nations and of many tongues. And while we take
just pride in the principles and institutions of the common law,
we are not to forget that in lands where other systems of juris-
prudence prevail, the ideas and processes of civil justice are also
not unknown. Due process of law, in spite of the absolutism of
continental governments, is not alien to that code which survived
the Roman Empire as the foundation of modern civilization in
Europe, and which has given us that fundamental maxim of dis-
tributive justice, — suum cuique tribuere. There is nothing in
Magna Charta, rightly construed as a broad charter of public
right and law, which ought to exclude the best ideas of all sys-
tems and of every age ; and as it was the characteristic principle
of the common law to draw its inspiration from every fountain
of justice, we are not to assume that the sources of its supply
have been exhausted. On the contrary, we should expect that
the new and various experiences of our own situation and system
will mould and shape it into new and not less useful forms.
The concessions of Magna Charta were wrung from the King
as guaranties against the oppressions and usurpations of his
prerogative. It did not enter into the minds of the barons to
provide security against their own body or in favor of the Com-
mons by limiting the power of Parliament; so that bills of
attainder, ex post faoto laws, laws declaring forfeitures of
334 CASES ON CONSTITUTIONAL LAW.
estates, and other arbitrary acts of legislation which occur so
frequently in English history, were never regarded as incon-
sistent with the laws of the land; for notwithstanding what was
attributed to Lord Coke in Bonham's Case, 8 Rep. 115, 118a,
the omnipotence of Parliament over the common law was abso-
lute, even against common right and reason. The actual and
practical security for English liberty against legislative tyranny
was the power of a free public opinion represented by the Com-
mons.
In this country written constitutions were deemed essential
to protect the rights and liberties of the people against the en-
croachments of power delegated to their governments, and the
provisions of Magna Charta were incorporated into Bills of
Rights. They were limitations upon all the powers of govern-
ment, legislative as well as executive and judicial.
It necessarily happened, therefore, that as these broad and
general maxims of liberty and justice held in our system a dif-
ferent place and performed a different function from their posi-
tion and office in English constitutional history and law, they
would receive and justify a corresponding and more comprehen-
sive interpretation. Applied in England only as guards against
executive usurpation and tyranny, here they have become bul-
warks also against arbitrary legislation ; but, in that application,
as it would be incongruous to measure and restrict them by
the ancient customary English law, they must be held to guar-
antee, not particular forms of procedure, but the very substance
of individual rights to life, liberty, and property.
Restraints that could be fastened upon executive authority
with precision and detail, might prove obstructive and injurious
when imposed on the just and necessary discretion of legislative
power; and, while in every instance, laws that violated express
and specific injunctions and prohibitions might, without em-
barrassment, be judicially declared to be void, yet, any general
principle or maxim, founded on the essential nature of law, as
a just and reasonable expression of the public will and of gov-
ernment, as instituted by popular consent and for the general
good, can only be applied to eases coming clearly within the
scope of its spirit and purpose, and not to legislative provisions
merely establishing forms and modes of attainment. Such regu-
lations, to adopt a sentence of Burke's, "may alter the mode
and application but have no power over the substance of origi-
nal justice. ' ' Tract on the Popery Laws, 6 Burke 's Works, ed.
Little & Brown, 323.
HURTADO V. CALIFORNIA. 335
Such is the often-repeated doctrine of this court. . . .
[Here axe given quotations from Munn v. Illinois, 94 U. S. 113 ;
Walker v. Sauvinet, 92 U. S. 90 ; Kennard v. Louisiana, 92 U. S.
480 ; Davidson v. New Orleans, 96 U. S. 97.]
"We are to construe this phrase in the Fourteenth Amendment
by the usiis loquendi of the Constitution itself. The same words
are contained in the Fifth Amendment. That article makes spe-
cific and express provision for perpetuating the institution of
the grand jury, so far as relates to prosecutions for the more
aggravated crimes under the laws of the United States. It de-
clares that:
"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 oif ense to
be twice put in jeopardy of life or limb; nor shall he be com-
pelled in any criminal case to be witness against himself." [It
then immediately adds] : "Nor be deprived of life, liberty, or
property without due process of law."
According to a recognized canon of interpretation, especially
applicable to formal and solemn instruments of constitutional
law, we are forbidden to assume, without clear reason to the
contrary, that any part of this most important amendment is
superfluous. The natural and obvious inference is, that in the
sense of the Constitution, "due process of law" was not meant
or intended to include, ex vi termini, the institution and pro-
cedure of a grand jury in any case. The conclusion is equally
irresistible, that when the same phrase was employed in the Four-
teenth Amendment to restrain the action of the States, it was
used in the same sense and with no greater extent ; and that if in
the adoption of that amendment it had been part of its pur-
pose to perpetuate the institution of the grand jury in all the
States, it would have embodied, as did the Fifth Amendment, ex-
press declarations to that effect. Due process of law in the lat-
ter refers to that law of the land which derives its authority
from the legislative powers conferred upon Congress by the Con-
stitution of the United States, exercised within the limits therein
prescribed, and interpreted according to the principles of the
common law. In the Fourteenth Amendment, by parity of reason,
it refers to that law of the land in each State which derives its
authority from the inherent and reserved powers of the State,
exerted within the limits of those fundamental principles of lib-
336 CASES ON CONSTITUTIONAL LAW.
erty and justice which lie at the base of aU our civil and politi-
cal institutions, and the greatest security for which resides in
the right of the people to make their own laws, and alter them
at their pleasure. . . .
But it is not to be supposed that these legislative powers are
absolute and despotic, and that the amendment prescribing due
process of law is too vEigue and indefinite to operate as a practi-
cal restraint. It is not every act, legislative in form, that is law.
Law is something more than mere will exerted as an act of power.
It must be not a special rule for a particular person or a particu-
lar case, but, in the language of Mr. Webster, in his familiar
definition, "the general law, a law which hears before it con-
demns, which proceeds upon inquiry, and renders judgment only
after trial," so "that every citizen shall hold his life, liberty,
property and immunities under the protection of the general
rules which govern society," and thus excluding, as not due
process of law, acts of attainder, bills of pains and penalties,
acts of confiscation, acts reversing judgments, and acts directly
transferring one man's estate to another, legislative judgments
and decrees, and other similar special, partial and arbitrary
exertions of power under the forms of legislation. Arbitrary
power, enforcing its edicts to the injury of thd persons and prop-
erty of its objects, is not law, whether manifested as the decree
of a personal monarch or of an impersonal multitude. And the
limitations imposed by our constitutional law upon the action
of the governments, both State and national, are essential to the
preservation of public and private rights, notwithstanding the
representative character of our political institutions. The en-
forcement of these limitations by judicial process is the device
of self-governing communities to protect the rights of individ-
uals and minorities, as well against the power of numbers as
against the violence of public agents transcending the limits of
lawful authority, even when acting in the name and wielding
the force of the government. . . .
It foUows that any legal proceeding enforced by public au-
thority, whether sanctioned by age and custom, or newly devised
in the discretion of the legislative power, in furtherance of the
general public good, which regards and preserves these princi-
ples of liberty and justice, must be held to be due process of
law. . . .
Tried by these principles, we are unable to say that the sub-
stitution for a presentment or indictment by a grand jury of the
proceeding by information, after examination and commitment
HURTADO V. CALIFORNIA. 337
by a magistrate, certifying to the probable guilt of the defend-
ant, with the right on his part to the aid of counsel, and to the
cross-examination of the witnesses produced for the prosecution,
is not due process of law. It is, as we have seen, an ancient pro-
ceeding at common law, which might include every case of an
offense of less grade than a felony, except misprision of treason ;
and in every circumstance of its administration, as authorized
by the statute of California, it carefully considers and guards
the substantial interest of the prisoner. It is merely a prelimi-
nary proceeding, and can result in no final judgment, except as
a consequence of a regular judicial trial, conducted precisely as
in cases of indictments.
In reference to this mode of proceeding at the common law,
and which he says "is as ancient as the common law itself,"
Blackstone adds (4 Com. 305) :
"And as to those offenses in which informations were allowed
as well as indictments, so long as they were confined to this high
and respectable jurisdiction, and were carried on in a legal and
regular course in his Majesty's Court of King's Bench, the sub-
ject had no reason to complain. The same notice was given, the
same process was issued, the same pleas were allowed, the same
trial by jury was had, the same judgment was given by the
same judges, as if the prosecution had originally been by indict-
ment. ' '
For these reasons, finding no error therein, the judgment of
the Supreme Court of California is
Affirmed.
Mr. Justice Harlan, dissenting. . . .
Note. — The requirement of due process does not necessitate the adop-
tion of any particular form of procedure, but leaves to each State a wide
latitude of choice, "subject only to the qualification that such procedure
must not work a denial of fundamental rights or conflict with specific and
applicable provisions of the Federal Constitution. ' ' Brown v. New Jersey
(1899), 175 U. S. 172, 175. The procedure may vary with the nature of the
case. For the collection of taxes and other debts due to the government,
the summary process sanctioned by long usage in England and the United
States has been held valid, Murray v. Hoboken Land Co. (1866), 18 How-
ard, 272; King v. Mullins (1898), 171 U. S. 404; but a summary process
must not be an arbitrary one, McMUlen v. Anderson (1877), 95 U. S. 37.
Duties of a quasi-judicial character may be devolved upon administrative
boards, for *'due process is not necessarily judicial process," Eeetz v.
Michigan (1903), 188 U. S. 505, 507. So the determination of a question
of sanity (Nobles v. Georgia [1897], 168 U. S. 398), or of the citizenship
of a person desiring to enter the United States (United States v. Ju Toy
[1905], 198 U. S. 253), or whether a. given importation of tea is entitled to
E. C. I/.— 22
338 CASES ON CONSTITUTIONAL LAW.
admission to the country (Buttfield v. Stranahan [1904], 192 TJ. 8. 470), or
whether the mail of a given business house may be excluded from the post-
office because of fraud (Public Clearing House v. Coyne [1904], 194 U. S.
497), may be entrusted to the decision of an administrative board or
officer, and such decision, if based upon evidence (American School of
Magnetic Healing v. McAnnulty [1902], 187 TJ. S. 94) may be final. But
an appeal may always be taken to the courts to determine whether the
action taken was within the jurisdiction conferred and whether the funda-
mental principles inherent in the conception of due process of law have
been observed. Yamataya v. Fisher, (1903), 189 U. 8. 86. On the con-
clusiveness of the determinations of administrative officials, see an excellent
treatment by Powell in "Conclusiveness of Administrative Determinations
in the Federal Government," American Political Science Meview, I, 583,
and WUloughby, The Constitutional Law of the United States, II, ch.
Ixiv.
"What evidence may be received (Adams v. New York [1904], 192 U. 8.
585) ; whether an appeal to a higher court shall be permitted (MeKane v.
Durston [1894], 153 TJ. 8. 684) ; whether the accused may demand to be
confronted by the witnesses against him (West v. Louisiana [1904], 194
TJ. 8. 258) ; whether a jury trial shall be by a common law jury or by a
lesser jury (Maxwell v. Dow [1900], 176 TJ. 8. 581) ; or apparently whether
there need be a jury trial at aU in a 8tate court (Hawaii v. Mankichi
[1903], 190 U. S. 197; Dorr v. United States [1904], 195 U. 8. 138), are
all questions to be determined by the several States.
A good general statement as to procedural requirements was made by Mr.
Justice Field in Hagar v. Eeolamation District (1884), 111 TJ. 8. 701, 708:
By due process of law is meant one which, following the forms
of law, is appropriate to the case, and just to the parties to be
affected. It must be pursued in the ordinary mode prescribed by
the law ; it must be adapted to the end to be attained ; and whenever
it is necessary for the protection of the parties, it must give them
an opportunity to be heard respecting the justice of the judgment
sought. The clause in question means therefore that there can be
no proceeding against life, liberty, or property which may result
in the deprivation of either, without the observance of those gen-
eral rules established in our system of jurisprudence for the security
of private rights.
Section 3. Due Process as to Liberty and Property.
WADLEY SOUTHERN RAILWAY COMPANY v. GEORGIA.
Supreme Court or the United States. 1915.
235 U. 8. 651; 59 Lawyers' Ed. 00.
Error to the Supreme Court of the State of Georgia.
[The legislature of Georgia enacted a law creating a Rail-
road Commission and providing a penalty of not more than five
WADLEY SOUTHERN RY. CO. v. GEORGIA. 339
thousand dollars for the violation by any person or corporation
of any lawful order of the Commission. Each day that the vio-
lation continued was declared to be a separate offense. The
Wadley Southern Railway Company was ordered by the Com-
mission on March 12, 1910, to desist from certain discrimina-
tions between shippers, and a copy of the order was delivered
to it on March 14. The company took no steps to test the valid-
ity of the order in the courts, but on April 4 it notified the
Commission that it would decline to comply therewith on the
ground that it was void. On May 26, 1910, the State instituted
proceedings to enforce the penalty. The company's defense is
indicated in the opinion.]
Mr. Justice Lamae . . . delivered the opinion of the
court. . . .
The Wadley Southern insists, however, that even if the Com-
mission had the power to make the order, the judgment impos-
ing a fine of $1,000 for its violation should nevertheless be set
aside for the reason that the statute — authorizing so enormous a
penalty as $5,000 a day for violating lawful orders of the Com-
mission — operated to prevent an appeal to the courts by the car-
rier for the purpose of determining whether the order was law-
ful, and therefore binding; or arbitrary and unreasonable, and
therefore invalid. In support of this contention it cites Ex parte
Young, 209 U. S. 123, 163 ; Willcox v. Consolidated Gas Co., 212
U. S. 19, 53. . . .
■ This contention would have been well founded if this and other
hearings of a like nature before the Commission had resulted in
orders which had the characteristics of a final judgment. But
this was not so, for they were not conclusive. Chicago &c. Ry.
V. Minnesota, 134 U. S. 418, 458. Their lawfulness was treated
by the Georgia court in the present case as open to inquiry,
when the Company was sued for the penalty. The question of
their validity was also open to inquiry, in equity proceedings,
in the state court, where they would have been set aside if found
to be arbitrary and unreasonable, or to have violated some statu-
tory or constitutional right. Railroad Commission v. Louis. &
Nash. R. R., 140 Georgia, 817 (6a), 836; State of Georgia v.
Western & Atlantic R. R., 138 Georgia, 835; Southern Ry. v.
Atlanta Sand Co., 135 Georgia, 35, 50. Such orders were also sub-
ject to attack in the Federal courts on the ground that the party
affected had been unconstitutionally deprived of property.
Louis. & Nash. R. R. v. Garrett, 231 U. S. 298, 313, and casea
340 CASES ON CONSTITUTIONAL LAW.
cited. And this right to a judicial determination exists whether
the deprivation is by a rate statute — passed without a hearing
(as in the Young and Consolidated Gas Cases) ; or by admin-
istrative orders of a Commission made after a hearing (as in
the Garrett Case, supra). For rates made by the General As-
sembly or administrative orders made by a Commission are both
legislative in their nature (Garrett Case, supra; Grand Trunk
R. R. Co. V. Indiana Railroad Commission, 221 U. S. 400, 403)
and any party affected by such legislative action is entitled, by
the due process clause, to a judicial review of the question as to
whether he has been thereby deprived of a right protected by
the Constitution. Chicago &c. Ry. v. Minnesota, 134 U. S. 418,
458; Chicago &c. Ry. v. Tompkins, 176 U. S. 167, 174; Prentis v.
Atlantic Coast Line, 211 U. S. 210 ; Missouri Pacific Ry. v. Ne-
braska, 217 U. S. 196, 207; Oregon R. R. & Nav. Co. v. Fair-
child, 224 U. S. 510; San Joaquin Co. v. Stanislaus County, 233
U. S. 459 ; Bacon v. Rutland R. R., 232 U. S. 134 ; Detroit &c.
R. R. V. Michigan R. R. Com., 235 U. S. 402.
The methods by which this right to a judicial review are
secured vary in different jurisdictions. . . . But in whatever
method enforced, the right to a judicial review must be substan-
tial, adequate, and safely available; but that right is merely
nominal and illusory if the party to be affected can appeal to
the courts only at the risk of having to pay penalties so great
that it is better to yield to orders of uncertain legality rather
than to ask for the protection of the law. . . .
As statutes establishing Railroad Commissions and providing
penalties for violations of legislative orders are of recent origin,
the cases discussing the subject are comparatively few. See
Mercantile Trust Co. v. Tex. & Pacif. Ry., 51 Fed. Rep. 529
(4), 549 (14-15) (1892) ; Louis. & Nash. R. R. v. McChord, 103
Fed. Rep. 216, 225 (1900) ; Cotting v. Kansas City Stock
Yards Co., 183 U. S. 79, 101 (1901) ; Consolidated Gas. Co.
v. Mayer, 146 Fed. Rep. 150, 154 (1906) ;, Ex parte Wood, 155
Fed. Rep. 190 (1907) ; Consolidated Gas Co. v. New York, 157
Fed. Rep. 849 (1907) ; Ex parte Young, 209 U. S. 123 (1908) ;
Willcox V. Consolidated Gas Co., 212 U. S. 19, 53 (1909) ; Mis-
souri Pacific Ry. v. Nebraska, 217 U. S. 196, 207 (1910) (build-
ing spur tracks) ; Missouri Pacific Ry. v. Tucker, 230 U. S. 340,
349 (1913) ; Bonnett v. Vallier, 136 Wis. 193 (15, 16) ; Coal &
Coke Ry. v. Conley, 67 W. Va. 129, 132, and the present case of
Wadley Southern Ry. v. State of Georgia, 137 Ga. 497.
These cases do not proceed upon the idea that there is any
. WADLEY SOUTHERN RY. CO. v. GEORGIA. 341
want of power to prescribe penalties heavy enough to compel
obedience to administrative orders, but they are all based upon
the fundamental proposition that under the Constitution penal-
ties cannot be collected if they operate to deter an interested
party from testing the validity of legislative rates or orders
legislative in their nature. Their legality is not apparent on the
face of such orders, but depends upon a showing of extrinsic
facts. A statute, therefore, which imposes heavy penalties for
violation of commands of an unascertained quality is, in its
nature, somewhat akin to an ex post facto law since it pun-
ishes for an act done when the legality of the command has not
been authoritatively determined. Liability to a penalty for vio-
lation of such orders, before their validity has been determined,
would put the party affected in a position where he himself
must at his own risk pass upon the question. He must either
obey what may finally be held to be a void order, or disobey
what may ultimately be held to be a lawful order. If a statute
could constitutionally impose heavy penalties for violation of
commands of such disputable and uncertain legality, the result
inevitably would be that the carrier would yield to void orders,
rather than risk the enormous cumulative or confiscatory pun-
ishment that might be imposed if they should thereafter be de-
clared to be valid. . . .
The matter was elaborately discussed, most carefully consid-
ered, and finally decided in Ex parte Young, 209 U. S. 123,
where a statute fixed rates, and, though it afforded no oppor-
tunity for a judicial hearing to determine whether the rates
were confiscatory, yet imposed heavy and cumulative penalties
for collecting other than those statutory rates. . . .
It was in the light of the fact that the penalty was imposed
for charging other than those statutory rates, whose reasonable-
ness was a matter of doubt and uncertainty, that this court
in the Young Case, speaking through Mr. Justice Peckham,
pointed out that a law which in terms or by, the operation of
deterrent penalties made statutes or orders of a commission con-
clusive as to the sufficiency of rates would be unconstitutional.
He summed up the discussion as ifoUows (209 U. S. p. 147) :
' ' It may therefore be said that when the penalties for disobedi-
ence are by fines so enormous and imprisonment so severe as to
intimidate the Company and its officers from resorting to the
courts to test the validity of the legislation, the result is the
same as if the law in terms prohibited the Company from seek-
ing judicial construction of laws which deeply affect its rights. ' '
342 CASES ON CONSTitXJTiONAL LAW.
Like views were expressed as to the invalidity of the heavy pen-
alties involved in Willcox v. Consolidated Gas Co., 212 U. S. 19,
53. . . .
In the light of this unbroken line of authorities, therefore, a
statute like the one here involved (under which penalties of
$5,000 a day could be imposed for violating orders of the Com-
mission) would be void if access to the courts to test the con-
stitutional validity of the requirement was denied; or, if the
right of review actually given was one of which the carrier
could not safely avail itself. . . .
Giving then Sec. 2625 that construction which makes it con-
stitutional and it appears that the laws of Georgia gave to the
Wadley Southern R. R. Co. the right to a judicial review of the
order of March 12, 1910, by a suit against the Commission.
The only question then left for determination is whether in
view of such right, the penalty can be collected for the violation
of an order not known to be valid at the date of the disobedi-
ence sought to be punished. On that question, little can be found
in the books. But on principle, and on the authority of all that
has been said on the subject, there is no room to doubt the power
of the State to impose a punishment heavy enough to secure
obedience to such orders after they have been found to be law-
ful ; nor to impose a penalty for acts of disobedience, committed
after the carrier had ample opportunity to test the validity of
administrative orders and failed so to do. . . .
If the Wadley Southern Railroad Company had availed itself
of that right, and — ^with reasonable promptness — had applied to
the courts for a judicial review of the order, and if, on such
hearing, it had been found to be void, no penalties could have
been imposed for past or future violations. If, in that proceed-
ing, the order had been found to be valid, the carrier would
thereafter have been subject to penalties for any subsequent
violations of what had thus been judicially established to be a
lawful order— though not so in respect of violations prior to
such adjudication.
But, where, as here, after reasonable notice of the making of
the order, the carrier failed to resort to the safe, adequate and
available remedy by which it could test in the courts its valid-
ity, and preferred to make its defense by attacking the validity
of the order when sued for the penalty, it is subject to the pen-
alty when that defense, as here, proved to be unsuccessful.
The judgment of the Supreme Court of Georgia is
Affirmed.
COPEAGE V. STATE OP KANSAS. 343
Note. — As to the historical meaning of the word liberty, see an article
by C. E. Shattuck on "The Meaning of the Term 'Liberty' in Federal and
State Constitutions" in Harvard Law Review, iv, 365. As to the judicial
interpretation of the word, see Allgeyer v. Louisiana (1897), 165 U. S.
678, where the cases are well summarized, and Jaeobson v. Massachusetts
(1905), 197 TJ. S. 11, an excellent discussion of the relation of personal
liberty and the police power. See also Freund, The Police Power, chs. xxi-
xxiii, and Cooley, Constitutional Limitations.
COPPAGE V. STATE OF KANSAS.
SuPKEME Court of the United States. 1915.
236 U. S. 1; 59 Lawyers' Ed. 00.
Error to the Supreme Court of the State of Kansas.
[The legislature of KansEis in 1903 passed an act making it
unlawful for any individual, firm, or corporation, or any agent
thereof "to coerce, require, demand or influence any person or
persons to enter into any agreement . . . not to join or be-
come or remain a member of any labor organization or associ-
ation, as a condition of such person or persons securing em-
ployment, or continuing in the employment of such individual,
firm or corporation." Hedges, a switchman in the employ of
the Frisco Railway, having refused to sign an agreement to
withdraw from the Switchmen's Union while he remained in
the service of the Frisco Company was dismissed by his super-
intendent, Coppage, who was thereupon fined for violation of
the statute. His conviction was sustained by the Supreme Court
of Kansas, 87 Kansas, 752, two judges dissenting.]
Mr. Justice Pitney delivered the opinion of the court. . . .
In Adair v. United States, 208 U. S. 161, this court had to
deal with a question not distinguishable in principle from the
one now presented. Congress in Sec. 10 of an act of June 1,
1898, entitled "An Act concerning carriers engaged in inter-
state commerce and their employes" (c. 370, 30 Stat. 424, 428),
had enacted "That any employer subject to the provisions of
this Act and any officer, agent, or receiver of such employer who
shall require any employe or any person seeking employment,
as a condition of such employment, to enter into an agreement,
either written or verbal, not to become or remain a member of
any labor corporation, association or organization; or shall
344 CASES ON CONSTITUTIONAL LAW.
threaten any employe with loss of employment, or shall un-
justly discriminate against any employe because of his mem-
bership in such labor corporation, association or organization
. . . is hereby declared to be guilty of a misdemeanor, and,
upon conviction thereof . . . shall be punished for each of-
fense by a fine of not less than one hundred dollars and not more
than one thousand dollars." Adair was convicted upon an in-
dictment charging that he, as agent of a common carrier subject
to the provisions of the Act, unjustly discriminated against a
certain employe by discharging him from the employ of the car-
rier because of his membership in a labor organization. The court
held that portion of the Act upon which the conviction rested
to be an invasion of the personal liberty as well as of the right
of property guaranteed by the Fifth Amendment, which declares
that no person shall be deprived of liberty or property without
due process of law. Speaking by Mr. Justice Harlan the court
said (208 U. S. p. 174) : "While, as already suggested, the
right of liberty and property guaranteed by the Constitution
against deprivation without due process of law, is subject to
such reasonable restraints as the common good or the general
welfare may require, it is not within the functions of govern-
ment — at least in the absence of contract between the parties —
to compel any person in the course of his business and against
his will, to accept or retain the personal services of another, or
to compel any person, against his will, to perform personal serv-
ices for another. The right of a person to sell his labor upon
such terms as he deems proper is, in its essence, the same as
the right of the purchaser of labor to prescribe the conditions
upon which he will accept such labor from the person offering
to sell it. So the right of the employe to quit the service of
the employer, for whatever reason, is the same as the right of the
employer, for whatever reason, to dispense with the services of
such employe. ... In all such particulars the employer
and the employe have equality of right, and any legislation that
disturbs that equality is an arbitrary interference with the lib-
erty of contract which no government can legally justify in a
free land."
Unless it is overruled, this decision is controlling upon the
present controversy ; for if Congress is prevented from arbitrary
interference with the liberty of contract because of the "due
process" provision of the Fifth Amendment, it is too clear for
argument that the States are prevented from, the like interfer-
ence by virtue of the corresponding clause of the Fourteenth
COPPAGE V. STATE OF KANSAS. 345
Amendment; and hence if it be unconstitutional for Congress
to deprive an employer of liberty or property for threatening
an employe with loss of employment or discriminating against
him because of his membership in a labor organization, it is un-
constitutional for a State to similarly punish an employer for
requiring his employe, as a condition to securing or retaining
employment, to agree not to become or remain a member of
such an organization while so employed.
It is true that, while the statute that was dealt with in
the Adair Case contained a clause substantially identical with
the Kansas act now under consideration — a clause making it a
misdemeanor for an employer to require an employe or appli-
cant for- employment, as a condition of such employment, to
agree not to become or remain a member of a labor organiza-
tion, — the conviction was based upon another clause, which re-
lated to discharging an employe because of his membership in
such an organization; and the decision, naturally, was confined
to the case actually presented for decision. . . .
The constitutional right of the employer to discharge an em-
ploye because of his membership in a labor union being granted,
can the employer be compelled to resort to this extreme meas-
ure? May he not offer to the employe an option, such as was
offered in the instant case, to remain in the employment if he
will retire from the union ; to sever the former relationship only
if he prefers the latter? Granted the equal freedom of both,
parties to the contract of employment, has not each party the
right to stipulate upon what terms only he will consent to
the inception, or to the continuance, of that relationship ? . . .
Can the right of making contracts be enjoyed at all, except by
parties coming together in an agreement that requires each party
to forego, during the time and for the purpose covered by the
agreement, any inconsistent exercise of his constitutional rights ?
These queries answer themselves. The answers, as we think,
lead to a single conclusion: Under constitutional freedom of
contract, whatever either party has the right to treat as suffi-
cient ground for terminating the employment, where there is no
stipulation on the subject, he has the right to provide by insist-
ing that a stipulation respecting it shall be a sine qua non of the
inception of the employment, or of its continuance if it be ter-
minable at will. It follows that this case can not be distinguished
from Adair v. United States. . . .
We are now asked, in effect, to overrule it ; and in view of the
importance of the issue we have re-examined the question from
346 CASES ON CONSTITUTIONAL LAW.
the standpoint of both reason and authority. As a result, we
are constrained to reaffirm the doctrine there applied. Neither
the doctrine nor this application of it is novel; we will en-
deavor to re-state some of the grounds upon which it rests.
The principle is fundamental and vital. Included in the right
of personal liberty and the right of private property — partak-
ing of the nature of each — is the right to make contracts for the
acquisition of property. Chief among such contracts is that of
personal employment, by which labor and other services are ex-
changed for money or other forms of property. If this right be
struck down or arbitrarily interfered with, there is a substan-
tial impairment of liberty in the long-established constitutional
sense. The right is as essential to the laborer as to the capital-
ist, to the poor as to the rich; for the vast majority of persons
have no other honest way to begin to acquire property, save by
working for money.
An interference with this liberty so serious as that now under
consideration, and so disturbing of equality of right, must be
deemed to be arbitrary, unless it be supportable as a reasonable
exercise of the police power of the State. But, notwithstand-
ing the strong general presumption in favor of the validity of
state laws, we do not think the statute in question, as construed
and applied in this case, can be sustained as a legitimate exer-
cise of that power. To avoid possible misunderstanding, we
should here emphasize, what has been said before, that so far as
its title or enacting clause expresses a purpose to deal with coer-
cion, compulsion, duress, or other undue influence, we have no
present concern with it, because nothing of that sort is involved
in this case. . . . But, in this case, the Kansas court of last
resort has held that €oppage, the plaintiff in error, is a crimi-
nal punishable with fine or imprisonment under this statute
simply and merely because, while acting as the representative
of the Eailroad Company and dealing with Hedges, an employe
at will and a man of full age and understanding, subject to no
restraint or disability, Coppage insisted that Hedges should
freely choose whether he would leave the employ of the Company
or would agree to refrain from association with the union while
so employed. This construction is, for all purposes of our juris-
diction, conclusive evidence that the State of Kansas intends
by this legislation to punish conduct such as that of Coppage,
although entirely devoid of any element of coercion, compulsion,
duress, or undue influence, just as certainly as it intends to pun-
ish coercion and the like. But, when a party appeals to this
COPPAGE V. STATE OP KANSAS. 347
court for the protection of rights secured to him by the Federal
Constitution, the decision is not to depend upon the form of the
state law, nor even upon its declared purpose, but rather upon
its operation and effect as applied and enforced by the State;
and upon these matters this court cannot, in the proper per-
formance of its duty, yield its judgment to that of the state
court. St. Louis S. W. Ry. v. Arkansas, 235 U. S. 350, 362,
and cases cited. Now, it seems to us clear that a statutory pro-
vision which is not a legitimate police regulation cannot be made
such by being placed in the same act with a police regulation,
or by being enacted under a title that declares a purpose which
would be a proper object for the exercise of that power. "Its
true character cannot be changed by its collocation," as Mr.
Justice Grier said in the Passenger Cases, 7 How. 283, 458. It
is equally clear, we think, that to punish an employer or his
agent for simply proposing certain terms of employment, under
circumstances devoid of coercion, duress, or undue influence,
has no reasonable relation to a declared purpose of repressing
coercion, duress, and undue influence. Nor can a State, by des-
ignating as "coercion" conduct which is not such in truth, ren-
der criminal any normal and essentially innocent exercise of
personal liberty or of property rights; for to permit this would
deprive the Fourteenth Amendment of its effective force in this
regard. . . .
Laying aside, therefore, as immaterial for present purposes,
so much of the statute as indicates a purpose to repress coer-
cive practices, what possible relation has the residue of the Act
to the public health, safety, morals or general welfare ? No^e is
suggested, and we are unable to conceive of any. The Act, as
the construction given to it by the state court shows, is intended
to deprive employers of a part of their liberty of contract, to
the corresponding advantage of the employed and the upbuilding
of the labor organizations. But no attempt is made, or could
reasonably be made, to sustain the purpose to strengthen these
voluntary organizations, any more than other voluntary asso-
ciations of persons, as a legitimate object for the exercise of the
police power. They are not public institutions, charged by law
with public or governmental duties, such as would render the
maintenance of their membership a matter of direct concern to
the general welfare. If they were, a different question would be
presented.
As to the interest of the employed, it is said by the Kansas
Supreme Court (87 Kansas, p. 759) to be a matter of common
348 CASES ON CONSTITUTIONAL LAW.
knowledge that "employes, as a rule, are not financially able
to be as independent in making contracts for the sale of their
labor as are employers in making contracts of purchase thereof."
No doubt, wherever the right of private property exists, there
must and will be inequalities of fortune; and thus it naturally
happens that parties negotiating about a contract are not equally
unhampered by circumstances. This applies to all contracts, and
not merely to that between employer and employe. Indeed a
little reflection will show that wherever the right of private prop-
erty and the right of free contract co-exist, each party when
contracting is inevitably more or less influenced by the question
of whether he has much property, or little, or none ; for the con-
tract is made to the very end that each may gain something
that he needs or desires more urgently than that which he pro-
poses to give in exchange. And, since it is self-evident that,
unless all things are held in common, some persons must have
more property than others, it is from the nature of things im-
possible to uphold freedom of contract and the right of private
property without at the same time recognizing as legitimate
those inequalities of fortune that are the necessary result of the
exercise of those rights. But the Fourteenth Amendment, in
declaring that a State shall not "deprive any person of life,
liberty or property without due process of law," gives to each
of these an equal sanction; it recognizes "liberty" and "prop-
erty" as co-existent human rights, and debars the States from
any unwarranted interference with either. . . .
We need not refer to the numerous and familiar cases in which
this court has held that the police power may properly be exer-
cised for preserving the public health, safety, morals, or general
welfare, and that such police regulations may reasonably limit
the enjoyment of personal liberty, including the right of making
contracts. . . . An evident and controlling distinction is
this: that in those oases it had been held permissible for the
States to adopt regulations fairly deemed necessary to secure
some object directly affecting the public welfare, even though
the enjoyment of private rights of liberty and property be
thereby incidentally hampered; while in that portion of the
Kansas statute which is now under consideration — that is to say,
aside from coercion, etc. — there is no object or purpose, expressed
or implied, that is claimed to have reference to health, safety,
morals, or public welfare, beyond the supposed desirability of
leveling inequalities of fortune by depriving one who has prop-
erty of some part of what is characterized as his ' ' financial inde-
COPPAGE V. STATE OF KANSAS. 349
pendence." . . . The mere restriction of liberty or of prop-
erty rights cannot of itself be denominated "public welfare,"
and treated as a legitimate object of the police power ; for such
restriction is the very thing that is inhibited by the Amend-
ment. . . .
Of course we do not intend to say, nor to intimate, anything
inconsistent with the right of individuals to join labor unions,
nor do we question the legitimacy of such organizations so long
as they conform to the laws of the land as others are required
to do. Conceding the full right of the individual to join the
union, he has no inherent right to do this and still remain in the
employ of one who is unwilling to employ a union man, any
more than the same individual has a right to join the union with-
out the consent of that organization. Can it be doubted that a
labor organization — a voluntary association of working men —
has the inherent and constitutional right to deny membership
to any man who will not agree that during such membership he
will not accept or retain employment in company with non-
union men? Or that a union man has the constitutional right
to decline proffered employment unless the employer will agree
not to employ any non-union men? . . . And can there be
one rule of liberty for the labor organization and its members,
and a different and more restrictive rule for employers? We
think not; and since the relation of employer and employe is a
voluntary relation, as clearly as is that between the members of a
labor organization, the employer has the same inherent right to
prescribe the terms upon which he will consent to. the relation-
ship, and to have them fairly understood and expressed in ad-
vance. . . .
The liberty of making contracts does not include a liberty to
procure employment from an unwilling employer, or without a
fair understanding. Nor may the employer be foreclosed by
legislation from exercising the same freedom of choice that is
the right of the employe.
To ask a man to agree, in advance, to refrain from affiliation
with the union while retaining a certain position of employment,
is not to ask him to give up any part of his constitutional free-
dom. He is free to decline the employment on those terms, just
as the employer may decline to offer employment upon any other ;
for ' ' It takes two to make a bargain. ' ' Having accepted employ-
ment on those terms, the man is still free to join the union when
the period of employment expires ; or, if employed at will, then
at any time upon simply quitting the employment. And, if
350 CASES ON CONSTITUTIONAL LAW.
bound by his own agreement to refrain from joining during a
stated period of employment, he is in no different situation from
that which is necessarily incident to term contracts in general.
For constitutional freedom of contract does not mean that a
party is to be as free after making a contract as before ; he is
not free to break it without accountability. Freedom of con-
tract, from the very nature of the thing, can be enjoyed only by
being exercised ; and each particular exercise of it involves mak-
ing an engagement which, if fulfilled, prevents for the time any
inconsistent course of conduct. . . .
Judgment reversed. . . .
Mr. Justice Holmes, dissenting. . . .
Me. Justice Day, with whom Mr. Justice Hughes concurs,
dissenting. . . .
Note.— Accord : United States v. Seott (1906), 148 Fed. 431; Goldfield
Consolidated Mines Go. v. Goldfield Miners' Union (1908), 159 Fed. 500;
State V. Julow (1895), 129 Mo. 163; State ex rel. Zillmer v. Kreutzberg
(1902), 114 Wis. 530; State ex rel. Smith v. Daniels (1912), 118 Minn.
155; In re Berger (1912), 33 Ohio C. C. 289.
CHAPTER IX.
THE EQUAL PROTECTION OF THE LAWS.
No State shall . . . deny to any person within its juris-
diction the equal protection of the laws.
Constitution oif the United States, Amendment XIV, sec 1.
Section 1. Race Discrimination.
STRAUDER v. WEST VIRGINIA.
Supreme Coubt of the United States. 1879.
100 U. S. 303; 25 Lawyers' Ed. 664.
Error to the Supreme Court of Appeals of the State of West
Virginia.
[The plaintiff in error, a colored man, was indicted for murder
in the Circuit Court of Ohio County, in West Virginia, on the
20th of October, 1874, and upon trial was convicted and sen-
tenced, and his conviction was affirmed by the Supreme Court of
the State. The present case is a writ of error to that court, the
chief assignment of error being that the prisoner was convicted
without due process of law since the laws of West Virginia
excluded the members of his race from jury service.]
Me. Justice Strong delivered the opinion of the court. . . .
In this court, several errors have been assigned, and the con-
trolling questions underlying them all are, first, whether, by the
Constitution and laws of the United States, every citizen of the
United States has a right to a trial of an indictment against him
by a jury selected and impaneled without discrimination against
his race or color, because of race or color ; and, second, if he has
such a right, and is denied its enjoyment by the' State in which
he is indicted, may he cause the ease to be removed into the Cir-
cuit Court of the United States ?
It is to be observed that the first of these questions is not
whether a colored man, when an indictment has been preferred
against him, has a right to a grand or a petit jury composed in
whole or in part of persons of his own race' or color, but it is
351
352 CASES ON CONSTITUTIONAL LAW.
whether, in the composition or. selection of jurors by whom he
is to be indicted or tried, all persons of his race or color may be
excluded by law, solely because of their race or color, so that by
no possibility can any colored man sit upon the jury. . . .
This [the Fourteenth Amendment] is one of a series of consti-
tutional provisions having a common purpose ; namely, securing
to a race recently emancipated, a race that through many gener-
ations had been held in slavery, all the civil rights that the supe-
rior race enjoy. The true spirit and meaning of the amend-
ments, as we said in the Slaughter-House Cases (16 Wall. 36),
cannot be understood without keeping in view the history of the
times when they were adopted, and the general objects they
plainly sought to accomplish. At the time when they were incor-
porated into the Constitution, it required little knowledge of
human nature to anticipate that those who had long been
regarded as an inferior and subject race would, when suddenly
raised to the rank of citizenship, be looked upon with jealousy
and positive dislike, and that State laws might be enacted or
enforced to perpetuate the distinctions that had before existed.
Discriminations against them had been habitual. It was well
known that in some States laws making such discriminations
then existed, and others might well be expected. The colored
race, as a race, was abject and ignorant, and in that condition
was unfitted to command the respect of those who had superior
intelligence. Their training had left them mere children, and
as such they needed the protection which a wise government
extends to those who are unable to protect themselves. They
especially needed protection against unfriendly action in the
States where they were resident. It was in view of these con-
siderations the Fourteenth Amendment was framed and adopted.
It was designed to assure to the colored race the enjoyment of
all the civil rights that under the law are enjoyed by white per-
sons, and to give to that race the protection of the general gov-
ernment, in that enjoyment, whenever it should be denied by
the States. It not only gave citizenship and the privileges of
citizenship to persons of color, but it denied to any State the
power to withhold from them the equal protection of the laws,
and authorized Congress to enforce its provisions by appropriate
legislation. . . . [Here follow citations from the Slaugh-
ter-House Cases, 16 Wallace, 36.]
If this is the spirit and meaning of the amendment, whether
it means more or not, it is to be construed liberally, to carry out
the purposes of its framers. It ordains that no State shall make
STRAUDER v. WEST VIRGINIA. 353
or enforce any laws which shall abridge the privileges or immuni-
ties of citizens of the United States (evidently referring to the
newly made citizens, who, being citizens of the United States,
are declared to be also citizens of the State in which they reside) .
It ordains that no State shall deprive any person of life, liberty,
or property, without due process of law, or deny to any person
within its jurisdiction the equal protection of the laws. What
is this but declaring that the law in the States shall be the same
for the black as for the white ; that all persons, whether colored
or white, shall stand equal before the laws of the States, and, in
regard to the colored race, for whose protection the amendment
was primarily designed, that no discrimination shall be made
against them by law because of their color? The words of the
amendment, it is true, are prohibitory, but they contain a neces-
sary implication of a positive immunity, or right, most valuable
to the colored race, — the right to exemption from unfriendly leg-
islation against them distinctively as colored, — exemption from
legal discriminations, implying inferiority in civil society, lessen-
ing the security of their enjoyment of the rights which others
enjoy, and discriminations which are steps towards reducing
them to the condition of a subject race.
That the West Virginia statute respecting juries — the statute
that controlled the selection of the grand and petit jury in the
case of the plaintiff in error — is such a discrimination ought not
to be doubted. Nor would it be if the persons excluded by it
were white men. If in those States where the colored people
constitute a majority of the' entire population a law should be
enacted excluding all white men from jury service, thus denying
to them the privilege of participating equally with the blacks
in the administration of justice, we apprehend no one would be
heard to claim that it would not be a denial to white men of the
equal protection of the laws. Nor if a law should be passed
excluding all naturalized Celtic Irishmen, would there be any
doubt of its inconsistency with the spirit of the amendment.
The very fact that colored people are singled out and expressly
denied by a statute all right to participate in the administration
of the law, as jurors, because of their color, though they are
citizens, and may be in other respects fully qualified, is prac-
tically a brand upon them, affixed by the law, an assertion of
their inferiority, and a stimulant to that race prejudice which is
an impediment to securing to individuals of the race that equal
justice which the law aims to secure' to all others.
The right to a trial by jury is guaranteed to every citizen of
E. C. L.— 23
354 CASES ON CONSTITUTIONAL LAW.
West Virginia by the Constitution of that State, and the consti-
tution of juries is a very essential part of the protection such a
mode of trial is intended to secure. The very idea of a jury is a
body of men composed of the peers or equals of the person whose
rights it is selected or summoned to determine; that is, of his
neighbors, fellows, associates, persons having the same legal.
status in society as that which he holds. Blackstone, in his Com-
mentaries, says, "The right of trial by jury, or the country, is
a trial by the peers of every Englishman, and is the grand bul-
wark of his liberties, and is secured to him by the Great Char-
ter." It is also guarded by statutory enactments intended to
make impossible what Mr. Bentham called ' ' packing juries. ' ' It
is well known that prejudices often exist against particular
classes in the community, which sway the judgment of jurors, and
which, therefore, operate in some eases to deny to persons of
those classes the full enjoyment of that protection which others
enjoy. Prejudice in a local community is held to be a reason
for a change of venue. The f ramers of the constitutional amend-
ment must have known full well the existence of such prejudice
and its likelihood to continue against the manumitted slaves and
their race, and that knowledge was doubtless a motive that led
to the amendment. By their manumission and citizenship the
colored race became entitled to the equal protection of the laws
of the States in which they resided ; and the apprehension that
through prejudice they might be denied that equal protection,
that is, that there might be discrimination against them, was
the inducement to bestow upon the national government the
power to enforce the provision that no State shall deny to them
the equal protection of the laws. Without the apprehended
existence of prejudice that portion of the amendment would have
been unnecessary, and it might have been left to the State's to
extend equality of protection.
In view of these considerations, it is hard to see why the
statute of West Virginia should not be regarded as discriminat-
ing against a colored man when he is put uJ)on trial for an
alleged criminal offense against the State. It is not easy to
comprehend how it can be said that while every white man is
entitled to a trial by a jury selected from persons of his own race
or color, or, rather, selected without discrimination against his
color, and a negro is not, the latter is equally protected by the
law with the former. Is not protection of life and liberty
against race or color prejudice a right, a legal right, under the
constitutional amendment? And how can it be maintained that
STRAUDBR v. WEST VIRGINIA. 355
compelling a colored man to submit to a trial for his life by a
jury drawn from a panel from which the State has expressly
excluded every man of his race, because of colpr alone, however
well qualified in other respects, is not a denial to him of equal
legal protection ?
"We do not say that within the limits from which it is not
excluded by the amendment, a State may not prescribe the
qualifications of its jurors, and in so doing make discriminations.
It may confine the selection to males, to freeholders, to citizens,
to persons within certain ages, or to persons having educational
qualifications. "We do not believe the Fourteenth Amendment
was ever intended to prohibit this. Looking at its history, it is
clear it had no such purpose. Its aim was against discrimina-
tion because of race or color. As we have said more than once,
its design was to protect an emancipated race, and to strike
down all possible legal discriminations against those who belong
to it. To quote further from 16 "Wall, supra: "In giving con-
struction to any of these articles [amendments], it is necessary
to keep the main purpose steadily in view. " " It is so clearly a
provision for that race and that emergency, that a strong case
would be necessary for its application to any other." "We are
not now called upon to affirm or deny that it had other pur-
poses.
The Fourteenth Amendment makes no attempt to enumerate
the rights it designed to protect. It speaks in general terms,
and those are as comprehensive as possible. Its language is pro-
hibitory; but every prohibition implies the existence of rights
and immunities, prominent among which is an immunity from
inequality of legal protection, either for life, liberty, or prop-
erty. Any State action that denies this immunity to a colored
man is in conflict with the Constitution. . . .
The judgment of the Supreme Court of "West "Virginia will be
reversed, and the case remitted with instructions to reverse the
judgment of the Circuit Court of Ohio County : and it is
So ordered.
[Me. Justice Field and Mr. Justice Clipfoed dissented.]
Note. — While an accused person is entitled to a jury from which the
members of his race have not been excluded by law, he is not entitled to a
trial by a jury of his own race. Virginia v. Eives (1880), 100 U. S. 313;
Martin v. Texas (1906), 200 U. S. 316. An act valid on its face may be
so administered as to be obnoxious to the Fourteenth Amendment. Ex
parte Virginia (1880), 100 IT. S. 339. As to various forms of race dis-
crimination see Plessy v. Ferguson (1896), 163 U. S. 537; Chiles v. Chesa-
356 CASES ON CONSTITUTIONAL LAW.
peake & Ohio Ey. (1910), 218 U. S. 71; McCabe v. A. T. & S. F. Ey. (1914),
235 XJ. S. 151 (separate but equal accommodations in railway trains) ;
Berea College v. Kentucky (1908), 211 U. S. 45 (prohibiting private educa-
tional institutions from teaching blacks and whites at the same time and
place); Li Sing v. United States (1901), 180 U. S. 486 (discrimination
against the Chinese as witnesses) ; Pace v. Alabama (1883), 106 U. S. 583
(punishing fornication committed by persons of different races more severely
than when committed by persons of the same race).
YICK WO V. HOPKINS.
SuPEEMB Court op the United States. 1886.
118 U. S. 356; 30 Lawyers' Ed. 220.
Error to the Supreme Court of the State of California.
[The board of supervisors of San Francisco enacted an ordi-
nance providing that no one should carry on a laundry "within
the corporate limits of the city and county of San Francisco
without having first obtained the consent of the board of super-
visors, except the same be located in a building constructed
either of brick or stone." Yick Wo, a subject of the Emperor
of China, petitioned for a license to carry on a laundry in the
same building in which he had been doing so for twenty-two
years. His application was refused, and he was then arrested
and fined for continuing in business without the necessary
license. It was admitted that all applications for a license made
by Chinese persons, more than 200 in number, were refused,
while the petitions of all others, with one exception, were
granted.]
Mr. Justice Matthews delivered the opinion of the
court. . . .
The ordinance drawn in question in the present ease .
does not prescribe a rule and conditions for the regulation of the
use of property for laundry purposes, to which all similarly
situated may conform. It allows without restriction the use for
such purposes of buildings of brick or stone ; but, as to wooden
buildings, constituting nearly all those in previous use, it divides
the ovmers or occupiers into two classes, not having respect to
their personal character and qualifications for the business, nor
the situation and nature and adaptation of the buildings them-
selves, but merely by an arbitrary line, on one side of which are
YICK WO V. HOPKINS. 357
those who are permitted to pursue their industry by the mere
will and consent of the supervisors, and on the other those from
whom that consent is withheld, at their mere will and pleasure.
And both classes are alike only in this, that they are tenants at
will, under the supervisors, of their means of living. The ordi-
nance, therefore, also differs from the not unusual case, where
discretion is lodged by law in public officers or bodies to grant
or withhold licenses to keep taverns, or places for the sale of
spirituous liquors, and the like, when one of the conditions is that
the applicant shall be a fit person for the exercise of the privilege,
because in such cases the fact of fitness is submitted to the judg-
ment of the officer, and calls for the exercise of a discretion of a
judicial nature.
The rights of the petitioners, as affected by the proceedings of
which they complain, are not less, because they are aliens and
subjects of the Emperor of China. ...
The Fourteenth Amendment to the Constitution is not confined
to the protection of citizens. It says: "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." These provisions are univer-
sal in their application, to all persons within the territorial juris-
diction, without regard to any difference of race, or color, or of
nationality, and the equal protection of the laws is a pledge of
the protection of equal laws. .
It is contended on the part of the petitioners, that the ordi-
nances for violations of which they are severally sentenced to
imprisonment, are void on their face, as being within the prohi-
bitions of the Fourteenth Amendment ; and, in the alternative, if
not so, that they are void by reason of their administration,
operating unequally, so as to punish in the present petitioners
what is permitted to others as lawful, without any distinction of
circumstances — an unjust and illegal discrimination, it is
claimed, which, though not made expressly by the ordinances, is
made possible by them.
When we consider the nature and the theory of our institutions
of government, the principles upon which they are supposed to
rest, and re-^iew the history of their development, we are con-
strained to conclude that they do not mean to leave room for
the play and action of purely personal and arbitrary power.
Sovereignty itself is, of course, not subject to law, for it is the
author and source of law; but in our system, while sovereign
powers are delegated to the agencies of government, sovereignty
358 CASES ON CONSTITUTIONAL LAW.
itself remains with the people, by whom and for whom all gov-
ernment exists and acts. And the law is the definition and limi-
tation of power. It is, indeed, quite true, that there must always
be lodged somewhere, and in some person or body, the authority
of final decision ; and in many cases of mere administration the
responsibility is purely political, no appeal lying except to the
ultimate tribunal of the public judgment, exercised either in the
pressure of opinion or by means of the suffrage. But the funda-
mental'rights to life, liberty, and the pursuit of happiness, con-
sidered as individual possessions, are secured by those maxims
of constitutional law which are the monuments showing the vic-
torious progress of the race in securing to men the blessings of
civilization under the reign of just and equal laws, so that, in
the famous language of the Massachusetts Bill of Rights, the
government of the commonwealth "may be a government of
laws an(J not of men." For, the very idea that one man may
be compelled to hold his life, or the means of living, or any
material right essential to the enjoyment of life, at the mere will
of another, seems to be intolerable in any country where' freedom
prevails, as being the essence of slavery itself. .
In the present cases we are not obliged to reason from the
probable to the actual, and pass upon the validity of the ordi-
nances complained of, as tried merely by the opportunities which
their terms afford, of unequal and unjust discrimination in their
administration. For the cases present the ordinances in actual
operation, and the facts shown establish an administration
directed so exclusively against a particular class of persons as
to warrant and require the conclusion that, whatever may have
been the intent of the ordinances as adopted, they are applied
by the public authorities charged with their administration, and
thus representing the State itself, with a mind so unequal and
oppressive as to amount to a practical denial by the State of
that equal protection of the laws which is secured to the petition-
ers, as to all other persons, by the broad and benign provisions
of the Fourteenth Amendment to the Constitution of the United
States. Though the law itself be fair on its face and impartial
in appearance, yet, if it is applied and administered by public
authority with an evil eye and an unequal hand, so as practically
to make unjust and illegal discriminations between persons in
similar circumstances, material to their rights, the denial of
equal justice is still within the prohibition of the Constitution.
This principle of interpretation has been sanctioned by this
court in Henderson v. Mayor of New York, 92 U, S. 259 ; Chy
YlCK WO V. HOPKINS. 359
Lung V. Freeman, 92 U. S. 275 ; Ex parte' Virginia, 100 U. S.
339; Neal v. Delaware, 103 U. S. 370; and Soon Hing v. Crow-
ley, 113 U. S. 703.
The present cases, as shown by the facts disclosed in the record,
are within this class. It appears that both petitioners have com-
plied with every requisite, deemed by the law or by the public
officers charged with its administration, necessary for the pro-
tection of neighboring property from fire, or as a precaution
against injury to the public health. No reason whatever, except
the will of the supervisors, is assigned why they should not be
permitted to carry on, in the accustomed manner, their harmless
and useful occupation, on whicb they depend for a livelihood.
And while this consent of the supervisors is withheld from them
and from two hundred others who have also petitioned, all of
whom happen to be Chinese subjects, eighty others, not Chinese
subjects, are permitted to carry on the same business under sim-
ilar conditions. The fact of this discrimination is admitted. No
reason for it is shown, and the conclusion cannot be resisted,
that no reason for it exists except hostility to the race and nation-
ality to which the petitioners belong, and which in the eye of
the law is not justified. The discrimination is, therefore, illegal,
and the public administration which enforces it is a denial of the
equal protection of the laws, and a violation of the Fourteenth
Amendment of the Constitution. The imprisonment of the peti-
tioners is, therefore, illegal, and they must be discharged. To
this end.
The judgment of the Supreme Court of California in the case
of Yick Wo, and that of the Circuit Court of the United States
for the District of CaUfomia m the case of Wo Lee, are severally
reversed, and the cases renumded, each to the proper court, with
directions to discharge the petitioners from custody and impris-
onment.
Note. — Indians are entitled to the protection of the guaranties of the
Constitution to the same extent as are other residents or citizens of the
United States. Jones v. Meehan (1899), 175 U. S. 1; Cherokee Nation v.
Hitchcock (1902), 187 TJ. S. 294; In re HefE (1905), 197 U. S. 488; Choate
V. Trapp (1912), 224 U. S. 665. Corporations are persons within the mean-
ing of the Fourteenth Amendment. Santa Clara County v. Southern Pacific
By. (1886), 118 U. S. 396; Gulf, Colo. & Santa Pe Ey. v. Ellis (1897), 165
IT. S. 150; but compare, as to foreign corporations, Blake v. McClung
(1898), 172 U. S. 239. As to municipal corporations, see Hunter v. Pitts-
burgh (1907), 207 U. S. 161.
360 CASES ON CONSTITUTIONAL LAW.
Section 2. Legislation for Classes.
BARBIER V. CONNOLLY.
SUPEEME COXntT OP THE UNITED STATES. 1885.
113 U. S. 27; 28 Lawyers' Ed. 923.
In error to the Superior Court of the city and county of San
Francisco, State of California.
[The Board of Supervisors of the city and county of San
Francisco, the legislative authority of that municipality, believ-
ing that the indiscriminate establishment of public laundries
endangered the public health and the public safety, enacted
ordinances, the fourth section of which provided that no person
owning or employed in a public laundry within certain pre-
scribed limits should wash or iron clothes between the hours of
ten in the evening and six in the morning, or upon any portion
of Sunday. The petitioner, having been convicted of a violation
of the fourth section and committed to the county jail, moved
for his discharge on the ground that the fourth section was in
conflict with the Fourteenth Amendment to the Federal Consti-
tution in that it discriminated between laborers engaged in the
laundry business and those engaged in other kinds of business,
and between laborers beyond the designated limits and those
within them, and that it deprived the petitioner of the right to
labor and hence of the right to acquire property, and that it
was unreasonable in its requirements and beyond the powers of
the Board of Supervisors.]
Mr. Justice Field delivered the opinion of the court. .
In this case we can only consider whether the fourth section of
the ordinance of the city and county of San Francisco is in con-
flict with the Constitution or laws of the United States. We can-
not pass upon the conformity of that section with the require-
ments of the Constitution of the State. Our jurisdiction is con-
fined to a consideration of the federal question involved, which
arises upon an alleged conflict of the fourth section in question
with the first section of the Fourteenth Amendment of the Consti-
tution of the United States. No other part of the amendment
has any possible application.
That fourth section, so far as it is involved in the ease before
the police judge, was simply a prohibition to carry on the wash-
ing and ironing of clothes in public laundries and wash-houses,
BARBIER V. CONNOLLY. 361
within certain prescribed limits of the city and county, from ten
o'clock at night until six o'clock in the morning of the following
day. The prohibition against labor on Sunday is not involved.
The provision is purely a police regulation within the compe-
tency of any municipality possessed of the ordinary powers be-
longing to such bodies. And it would be an extraordinary
usurpation of the authority of a municipality, if a federal
tribunal should undertake to supervise such regulations. It may
be a necessary measure of precaution in a city composed largely
of wooden buildings like San Francisco, that occupations, in
which fires are constantly required, should cease after certain
hours at night until the following morning ; and of the necessity
of such regulations the municipal bodies are the exclusive judges ;
at least any correction of their action in such matters can come
only from State legislation or State tribunals. The same munici-
pal authority which directs the cessation of labor must neces-
sarily prescribe the limits within which it shall be enforced, as it
does the limits in a city within which wooden buildings cannot
be constructed. There is no invidious discrimination against
any one within the prescribed limits by such regulations. There
is none in the regulation under consideration. The specification
of the limits within which the business cannot be carried on
without the certificates of the health officer and Board of Fire
Wardens is merely a designation of the portion of the city in
which the precautionary measures against fire and to secure
proper drainage must be taken for the public health and safety.
It is not legislation discriminating against any one. All persons
engaged in the same business within it are treated alike; are
subject to the same restrictions and are entitled to the same
privileges under similar conditions.
The Fourteenth Amendment, in declaring that no State ' ' shall
deprive any person of life, liberty, or property without due
process of law, nor deny to any person Mdthin its jurisdiction the
equal protection of the laws," undoubtedly intended not only
that there should be no arbitrary deprivation of life or liberty,
or arbitrary spoliation of property, but that equal protection
and security should be given to all under like circumstances in
the enjoyment of their personal and civil rights ; that all persons
should be equally entitled to pursue their happiness and acquire
and enjoy property; that they should have like access to the
courts of the country for the protection of their persons and
property, the prevention and redress of wrongs, and the enforce-
362 CASES ON CONSTITUTIONAL LAW.
ment of contracts; that no impediment should be interposed to
the pursuits of any one except as applied to the same pursuits
by others under like circumstances; that no greater burdens
should be laid upon one than are laid upon others in the same
calling and condition, and that in the administration of criminal
justice no different or higher punishment should be imposed upon
one than such as is prescribed to all for like offenses. But
neither the amendment — broad and comprehensive as it is — nor
any other amendment, was designed to interfere with the power
of the State, sometimes termed its police power, to prescribe regu-
lations to promote the health, peace, morals, education, and good
order of the people, and to legislate so as to increase the indus-
tries of the State, develop its resources, and add to its wealth
and prosperity. From the very necessities of society, legislation
of a special character, having these objects in view, must often
be had in certain districts, such as for draining marshes and irri-
gating arid plains. Special burdens are often necessary for gen-
eral benefits — for supplying water, preventing fires, lighting dis-
tricts, cleaning streets, opening parks, and many other objects.
Regulations for these purposes may press with more or less
weight upon one than upon another, but they are designed, not
to impose unequal or unnecessary restrictions upon any one, but
to promote, with as little individual inconvenience as possible,
the general good. Though, in many respects, necessarily special
in their character, they do not furnish just ground of complaint
if they operate alike upon all persons and property under the
same circumstances and conditions. Class legislation, discrimi-
nating against some and favoring others, is prohibited, but legis-
lation which, in carrying out a public purpose, is limited in its
application, if within the sphere of its operation it affects alike
all persons similarly situated, is not within the amendment.
In the execution of admitted powers unnecessary proceedings
are often required which are cumbersome, dilatory, and expen-
sive, yet, if no discrimination against any one be made and no
substantial right be impaired by them, they are not obnoxious
to any constitutional objection. The inconveniences arising in
the administration of the laws from this cause are matters en-
tirely for the consideration of the State ; they can be remedied
only by the State. In the case before us the provisions requiring
certificates from the health officer and the Board of Fire "War-
dens may, in some instances, be unnecessary, and the changes
to be made to meet the conditions prescribed may be burdensome,
MO., KAN. AND TEX. RY. CO. V. MAY. S63
but, as we have said, this is a matter for the determination of
the municipality in the execution of its police powers, and not a
violation of any substantial right of the individual.
Judgment affirmed.
MISSOURI, KANSAS AND TEXAS RAILWAY COMPANY
V. MAY.
Supreme Court or the United States. 1904.
194 U. S. 267; 48 Lawyers' Ed. 971.
Error to the County Court of Bell County, State of Texas.
Me. Justice Holmes delivered the opinion of the court.
This is an action to recover a penalty of twenty-five dollars,
brought by the owner of a farm contiguous to the railroad of the
plaintiff in error, on the ground that the latter has allowed
Johnson grass to mature and go to seed upon its road. The pen-
alty is given to contiguous owners by a Texas statute of 1901,
ch. 117, directed solely against railroad companies for permit-
ting such grass or Russian thistle to go to seed upon their right
of way, subject, however, to the condition that the plaintiff
has not done the same thing. The case is brought here on the
ground that the statute is contrary to the Fourteenth Amend-
ment of the Constitution of the United States.
It is admitted that Johnson grass is a, menace to crops, that
it is propagated only by seed, and that a general regulation of
it for the protection of farming would be valid. It is admitted
also that legislation may be directed against a class when any
fair ground for the discrimination exists. But it is said that this
particular subjection of railroad companies to a liability not
imposed on other owners of land oil which Johnson grass may
grow is so arbitrary as to amount to a denial of the equal pro-
tection of the laws. There is no dispute about general principles.
The question is whether this case lies on one side or the other of
a line which has to be worked out between cases differing only
in degree. "With regard to the manner in which such a question
should be approached, it is obvious that the legislature is the
only judge of the policy of a proposed discrimination. The prin-
ciple is similar to that which is established with regard to a
decision of Congress that certain means are necessary and proper
to carry out one of its express powers. McCuUoch v, Maryland,
364 CASES ON CONSTITUTIONAL LAW.
4 Wheat. 316. When a state legislature has declared that in
its opinion policy requires a certain measure, its action should
not be disturbed by the courts under the Fourteenth Amendment,
unless they can see clearly that there is no fair reason for the
law that would not require with equal force its extension to
others whom it leaves untouched.
Approaching the question in this way, we feel unable to say
that the law before us may not have been justified by local con-
ditions. It would have been more obviously fair to extend the
regulation at least to highways. But it may have been found,
for all that we know, that the seed of Johnson grass is dropped
from the cars in such quantities as to cause special trouble. It
may be that the neglected strips occupied by railroads afford a
ground where noxious weeds especially flourish, and that whereas
self-interest leads the owners of farms to keep down pests, the
railroad companies have done nothing in a matter which con-
cerns their neighbors only. Other reasons may be imagined.
Great constitutional provisions must be administered with cau-
tion. Some play must be allowed for the joints of the machine,
and it must be remembered that legislatures are ultimate guar-
dians of the liberties and welfare of the people in quite as great
a degree as the courts. Judgment affirmed.
Mr. Justice Brewee concurs in the judgment.
Mr. Justice Brown, dissenting. .
Me. Justice White and Mr. Justice McKenna also dissented.
CENTRAL LUMBER COMPANY v. STATE OF SOUTH
DAKOTA.
Stipeemb Court of the United States. 1912.
226 V. S. 157; 57 Lawyers' Ed. 164.
Error to the Supreme Court of the State of South, Dakota.
Mr. Justice Holmes delivered the opinion of the court.
The plaintiff in error was found guilty of unfair discrimina-
tion under Session Laws of South Dakota for 1907, c. 131, and
was sentenced to a fine of two hundred dollars and costs. It
objected in due form that the statute was contrary to the Four-
teenth Amendment, but on appeal the judgment of the trial court
was sustained. 24 So. Dak. 136. By the statute anyone "En-
gaged in the production, manufacture or distribution of any
CENTRAL LUMBER CO. v. SOUTH DAKOTA. 365
commodity in general use, that intentionally, for the purpose
of destroying the competition of any regular, established dealer
in such commodity, or to prevent the competition of any per-
son who in good faith intends and attempts to become such
dealer, shall discriminate between different sections, communi-
ties, or cities of this state, by selling such commodity at a lower
rate in one section . . . than such person . . . charges
for such commodity in another section, . . . after equaliz-
ing the distance from the point of production," &c., shall be
guilty of the crime and liable to the fine.
The subject-matter, like the rest of the criminal law, is under
the control of the legislature of South Dakota, by virtue of its
general powers, unless the statute conflicts as alleged with the
Constitution of the United States. The grounds on which it is
said to do so are that it denies the equal protection of the laws,
because it affects the con'duct of only a particular class — those
selling goods in two places in the State — and is intended for the
protection of only a particular class — regular established deal-
ers ; and also because it unreasonably limits the liberty of people
to make such bargains as they like.
On the first of these points it is said that an indefensible clas-
sification may be disguised in the form of a description of the
act constituting the offense, and it is urged that to punish selling
goods in one place lower than at another in effect is to select the
class of dealers that have two places of business for a special
liability, and in real fact is a blow aimed at those who have
several lumber yards along a line of railroad, in the interest of
independent dealers. All competition, it is added, imports an
attempt to destroy or prevent the competition of rivals, and
there is no difference in principle between the prohibited act
and the ordinary efforts of traders at a single place. The prem-
ises may be conceded without accepting the conclusion that this
is an unconstitutional discrimination. If the legislature shares
the now prevailing belief as to what is public policy and finds
that a particular instrument of trade war is being used against
that policy in certain cases, it may direct its law against what
it deems the evil as it actually exists without covering the whole
field of possible abuses, and it may do so none the less that the
forbidden act does not differ in kind from those that are allowed.
Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 81 : Missouri
Pacific Ry. Co. v. Mackey, 127 U. S. 205.
This is not the arbitrary selection that is condemned in such
cases as Southern Ry. Co. v. Greene, 216 U. S. 400. The Four-
366 CASES ON CONSTlTtJTIONAL LAW.
teenth Amendment does not prohibit legislation special in char-
acter. Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283,
294. It does not prohibit a State from carrying out a policy that
cannot be pronounced purely arbitrary, by taxation or penal
laws. Orient Insurance Co. v. Daggs, 172 U. S. 557, 562 ; Quong
Wing V. Kirkendall, 223 U. S. 59, 62. If a class is deemed to
present a conspicuous example, of what the legislature seeks to
prevent, the Fourteenth Amendment allows it to be dealt with
although otherwise and merely logically not distinguishable
from others not embraced in the law. Carroll v. Greenwich Ins.
Co., 199 U. S. 401, 411. We must assume that the legislature
of South Dakota considered that people selling in two places
made the prohibited use of their opportunities and that such use
was harmful, although the usual efforts of competitors were
desired. It might have been argued to the legislature with more
force than it can be to us that recoupment in one place of losses
in another is merely an instance of financial ability to compete.
If the legislature thought that that particular manifestation of
ability usually came from great corporations whose power it
deemed excessive and for that reason did more harm than good
in their State, and that there was no other cause of frequent
occurrence where the same could be said, we cannot review their
economies or their facts. That the law embodies a widespread
conviction appears from the decisions in other States. State v.
Drayton, 82 Neb. 254; State v. Standard Oil Co., Ill Minn. 85;
. . . State V. Fairmont Creamery, 153 Iowa, 702 ; . . .
State V. Bridgeman & Russell Co., 117 Minn. 186. . . .
What we have said makes it unnecessary to add much on the
second point, if open, that the law is made in favor of regular
established dealers — but the short answer is simply to read the
law. It extends on its face also to those who intend to become
such dealers. If it saw fit not to grant the same degree of protec-
tion to parties making a transitory incursion into the business,
we see no objection. But the Supreme Court says that the
statute is aimed at preventing the creation of a monopoly by
means likely to be employed, and certainly we should read the
law as having in view ultimately the benefit of buyers of the
goods.
Finally, as to the statute's depriving the plaintiff in error of
its liberty because it forbids a certain class of dealings, we think
it enough to say that as the law does not otherwise encounter
the Fourteenth Amendment, it is not to be disturbed on this
ground. The matter has been discussed so often in this court
PATSONE V. PENNSYLVANIA. 367
that we simply refer to Chicago, Burlington & Quincy R. R. Co.
V. McGuire, 219 U. S. 549, 567, 568, and the cases there cited to
illustrate how much power is left in the States. See also Grenada
Lumber Co. v. Mississippi, 217 U. S. 433, 442 ; Lemieux v. Young,
211 U. S. 489, 496 ; Otis v. Parker, 187 U. S. 606, 609.
Judgment affirmed.
PATSONE V. COMMONWEALTH OP PENNSYLVANIA.
Supreme Court of the United States. 1914.
232 U. S. 138; 58 Lawyers' Ed. 539.
Error to the Supreme Court of the Commonwealth of Penn-
sylvania.
Mr. Justice Holmes delivered the opinion of the court.
The plaintiff in error was an unnaturalized foreign born resi-
dent of Pennsylvania and was complained of for owning or hav-
ing in his possession a shotgun, contrary to an act of May 8,
1909. Laws, 1909, No. 261, p. 466. This statute makes it unlaw-
ful for any unnaturalized foreign born resident to kill any wild
bird or animal except in defense of person or property, and "to
that end" makes it unlawful for such foreign born person to
own or be possessed of a shotgun or rifle; with a penalty of
twenty-five dollars and a forfeiture of the gun or guns. The
plaintiff in error was found guilty and was sentenced to pay
the above mentioned fine. The judgment was affirmed on suc-
cessive appeals. 231 Pa. St. 46. He brings the case to this court
on the ground that the statute is contrary to the Fourteenth
Amendment and also is in contravention of the treaty between
the United States and Italy, to which latter country the plain-
tiff in error belongs.
Under the Fourteenth Amendment the objection is two- fold;
unjustifiably depriving the alien of property, and discrimination
against such aliens as a class. But the former really depends
upon the latter, since it hardly can be disputed that if the law-
ful object, the protection of wild life (Geer v. Connecticut, 161
U. S. 519), warrants the discrimination, the means adopted for
making it effective also might be adopted. The possession of
rifles and shotguns is not necessary for other purposes not with-
in the statute. It is so peculiarly appropriated to the forbid-
den use that if such a use may be denied to this class, the pos-
368 CASES ON CONSTITUTIONAL LAW.
session of the instruments desired chiefly for that end also may
be. The prohibition does not extend to weapons such as pistols
that may be supposed to be needed occasionally for self-defense.
So far, the case is within the principle of Lawton v. Steele, 152
U. S. 133. See, further, Silz v. Hesterberg, 211 U. S. 31; Purity
Extract Co. v. Lynch, 226 U. S. 192.
The discrimination undoubtedly presents a more difficult ques-
tion. But we start with the general consideration that a State
may classify with reference to the evil to be prevented, and that
if the class discriminated against is or reasonably might be con-
sidered to define those from whom the evil is mainly to be feared,
it properly may be picked out. A lack of abstract symmetry does
not matter. The question is a practical one dependent upon
experience. The demand for symmetry ignores the specific dif-
ference that experience is supposed to have shown to mark the
class. It is not enough to invalidate the law that others may do
the same thing and go impunished, if, as a matter of fact, it is
found that the danger is characteristic of the class named. Linds-
ley V. Natural Carbonic Gas Co., 220 U. S. 61, 80, 81. The State
"may direct its law against what it deems the evil as it actually
exists without covering the whole field of possible abuses. ' ' Cen-
tral Lumber Co. v. South Dakota, 226 U. S. 157, 160 ; Eosenthal v.
New York, 226 U. S. 260, 270; L'Hote v. New Orleans, 177 U. S.
587. See further Louisville & Nashville R. R. Co. v. Melton,
218 U. S. 36. The question therefore narrows itself to whether
this court can say that the Legislature of Pennsylvania was not
warranted in assuming as its premise for the law that resident
unnaturalized aliens were the peculiar source of the evil that
it desired to prevent. Barrett v. Indiana, 229 U. S. 26, 29.
Obviously the question so stated is one of local experience on
which this court ought to be very slow to declare that the state
legislature was wrong in its facts. Adams v. Milwaukee, 228
U. S. 572, 583. If we might trust popular speech in some States
it was right — but it is enough that this court has no such knowl-
edge of local conditions as to be able to say that it was mani-
festly wrong. See Trageser v. Gray, 73 Maryland, 250; Com-
monwealth v. Hana, 195 Massachusetts, 262. . . .
Judgment affirmed.
The Chief Justice dissents.
Note. — As to the relation of legislation for classes to the equal protec-
tion of the laws, see Adams v. Milwaukee (1913), 228 U. S. 572 (inspection
of milk cows within and without a city governed by different rules) ; Sturges
& Burn Mfg. Co. v. Beauchamp (1913), 231 XT. S. 320 (statute applicable
PATSONE V. PENNSYLVANIA. 369
only to laborers under 16 years of age) ; Baltic Mining Co. v. Massachusetts
(1913), 231 U. S. 68 (discriminatory tax on foreign corporations); Baceus
V. Louisiana (1914), 232 U. S. 334 (prohibition of sale of drugs by ped-
dlers) ; Ohio Tax Cases (1914), 232 U. S. 576 (imposition of an excise tax
on railway earnings only) ; Eberle v. Michigan (1914), 232 U. S. 700 (per-
mitting sale of liquor only by druggists) ; Missouri, K. & T. Ey. v. Cade
(1914), 233 U. S. 642 (statute for facilitating settlement of small claims);
Kansas City Southern Ey. v. Anderson (1914), 233 U. S. 325 (imposition
of double damages on railways and not on other defendants) ; Smith v.
Texas (1914), 233 U. S. 630 (requiring a conductor to have had two years'
experience as a brakeman) ; Keokee Coke Co. v. Taylor (1914), 234 U. S.
224 (requiring a certain method of paying laborers in some industries and
not in others); Easterling Lumber Co. v. Pierce (1914), 235 U. S. 380
(classification of employees based on use of engines in a statute abolishing
the fellow-servant rule) ; Jeffrey Manufacturing Co. v. Blagg (1915), 235
TJ. S. 571 (similar statute where classification is based on number of em-
ployees) ; Miller v. "Wilson (1915), 236 U. S. 373 (restrictions on women's
hours of labor); Bosley v. McLaughlin (1915), 236 U. S. 385 (provisions
as to graduate nurses not applied to other nurses).
■g. c. L.— 21
CHAPTER X.
THE POLICE POWER.
What are the police powers of a State? They are nothing
more or less than the powers of government inherent in every
sovereignty to the extent of its dominions. And whether a State
passes a quarantine law or a law to punish offenses, or to establish
courts of justice, or requiring certain instruments to be recorded,
or to regulate commerce within its own limits, in every case it
exercises the same power; that is to say, the power of sovereignty,
the power to govern men arid things within the limits of its
dominion.
Chief Justice Taney in The License Cases, 5 Howard, 504, 584.
Discussions of what is called the "police power" are often
uninstructive, from a la,ck of discrimination. It is common to
recognize that the subject is hardly susceptible of definition, but
very often, indeed, it is not perceived that the real question in
hand is that grave, difficult, and fundamental matter, — what are
the limits of legislative power in general? In talking of the
"police power," sometimes the question relates to the limits of
a power admitted and fairly well-known, as that of taxation or
eminent domain ; sometimes to the line between the local legislative
power of the States and the Federal legislative power; sometimes
to legislation as settling the details of municipal affairs, and local
arrangements for the promotion of good order, health, comfort,
and convenience; sometimes to that special form of legislative
action which applies the maxim of Sic utere tuo ut alienum non
IcBdas, adjusts and accommodates interests that may conflict, and
fixes specific limits for each. But often, the discussion turns upon
the true limits and scope of legislative power in general, — in
whatever way it may seek to promote the general welfare.
James B. Thayer, Cases . on Constitutional Law, I, 693.
Section 1. The Protection op Health.
RAILROAD COMPANY v. HUSEN.
SUFBBMB COUBT OF THE UNITED STATES. 1877.
95 U. S. 465; 24 Lawyers' Ed. 527.
Error to the Supreme Court of the State of Missouri. . . .
Mr. Justice Strong delivered the opinion of the court.
Five assignments of error appear in this record ; but they raise
only a single question. It is, whether the statute of Missouri,
370
RAILROAD COMPANY v. HUSEN. 371
upon which the action in the State court was founded, is in
conflict with the clause of the Constitution of the United States
that ordains "Congress shall have power to regulate commerce
with foreign nations, and among the several States, and with the
Indian tribes." The statute, approved January 23, 1872, by its
first section, enacted as follows: "No Texas, Mexican, or Indian
cattle shall be driven or otherwise conveyed into, or remain, in
any county in this State, between the first day of March and the
first day of November in each year, by any person or persons
whatsoever. ' ' A later section is in these words : "If any person
or persons shall bring into this State any Texas, Mexican, or In-
dian cattle, in violation of the first section of this act, he or they
shall be liable, in all cases, for all damages sustained on account
of disease communicated by said cattle." Other sections make
such bringing of cattle into the State a criminal offense, and pro-
vide penalties for it. It was, however, upon the provisions we
have quoted that this action was brought against the railroad
company that had conveyed the cattle into the county. It is
noticeable that the statute interposes a direct prohibition against
the introduction into the State of all Texas, Mexican, or Indian
cattle during eight months of each year, without any distinction
between such as may be diseased and such as are not. It is true"
a proviso to the first section enacts that "when such cattle shall
come across the line of the State, loaded upon a railroad ear or
steamboat, and shall pass through the State without being un-
loaded, such shall not be construed as prohibited by the act;
but the railroad company or owners of a steamboat performing
such transportation shall be responsible for damages which may
result from the disease called the Spanish or Texas fever, should
the same occur along the line of transportation; and the exist-
ence of such disease along the line of such route shall be prima
facie evidence that such disease has been communicated by such
transportation." This proviso imposes burdens and liabilities
for transportation through the State, though the cattle be not
unloaded, while the body of the section absolutely prohibits the
introduction of any such cattle into the State, with the single
exception mentioned.
It seems hardly necessary to argue at length, that, unless the
statute can be justified as a legitimate exercise of the police power
of the State, it is a usurpation of the power vested exclusively
in Congress. It is a plain regulation of interstate commerce,
a regulation extending to prohibition. Whatever may be the
power of a State over commerce that is completely internal, it
372 CASES ON CONSTITUTIONAL LAW.
can no more prohibit or regulate that which is interstate than it
can that which is with foreign nations. Power over one is given
by the Constitution of the United States to Congress in the same
words in which it is given over the other, and in both cases it
is necessarily exclusive. That the transportation of property
from one State to another is a branch of interstate commerce is
undeniable, and no attempt has been made in this case to deny it.
The Missouri statute is a plain interference with such trans-
portation, an attempted exercise over it of the highest possible
power, — that of destruction. . . .
We are thus brought to the question whether the Missouri
statute is a lawful exercise of the police power of the State. We
admit that the deposit in Congress of the power to regulate for-
eign commerce and commerce among the States was not a sur-
render of that which may properly be denominated police power.
What that power is, it is difBeult to define with sharp precision.
It is generally said to extend to making regulations promotive
of domestic order, morals, health, and safety. . . .
But whatever may be the nature and reach of the police power
of a State, it cannot be exercised over a subject confided exclu-
sively to Congress by the Federal Constitution. It cannot invade
the domain of the national government. It was said in Hender-
son et al. v. Mayor of the City of New York et al., 92 U. S. 259,
to "be clear, from the nature of our complex form of government,
that whenever the statute of a State invades the domain of leg-
islation which belongs exclusively to the Congress of the United
States, it is void, no matter under what class of pjwers it may
fall, or how closely allied it may be to powers conceded to be-
long to the States." Substantially the same thing was said by
Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1. Neither
the unlimited powers of a State to tax, nor any of its large police
powers, can be exercised to such an extent as to work a practical
assumption of the powers properly conferred upon Congress by
the Constitution. Many acts of a State may, indeed, aifect com-
merce, without amounting to a regulation of it, in the constitu-
tional sense of the term. And it is sometimes difficult to define
the distinction between that which merely affects or influences
and that which regulates or furnishes a rule of conduct. There
is no such difficulty in the present case. While we unhesitatingly
admit that a State may pass sanitary laws, and laws for the pro-
tection of life, liberty, health, or property within its borders;
while it may prevent persons and animals suffering under con-
tagious or infectious diseases, or convicts, &c., from entering the
RAILROAD COMPANY v. HUSEN. 373
State ; while for the purpose of self -protection it may establish
quarantine, and reasonable inspection laws, it may not inter-
fere with transportation: into or through the State, beyond what
is absolutely necessary for its self -protection. It may not, under
cover of exerting its police powers, substantially prohibit or
burden either foreign or interstate commerce. . . .
Tried by this rule, the statute of Missouri is a plain intrusion
upon the exclusive domain of Congress. It is not a quarantine
law. It is not an inspection law. It says to all natural persons
and to all transportation companies, "You shall not bring into
the State any Texas cattle or any Mexican cattle or Indian cat-
tle, between March 1 and Dec. 1 in any year, no matter whether
they are free from disease or not, no matter whether they may do
an injury to the inhabitants of the State or not ; and if you do
bring them in, even for the purpose of carrying them through
the State without unloading them, you shall be subject to extraor-
dinary liabilities." Such a statute, we do not doubt, it is
beyond the power of the State to enact. To hold otherwise would
be to ignore one of the leading objects which the Constitution of
the United States was designed to secure. . . .
Judcfrn.ent reversed. . . .
Note. — For general discussions of the nature of the police power, see
Tiedeman, The Police Power; Freund, The Police Power, chapters i, ii,
and iii; Cooley, Constitutional Limitations, ch. xvi; McGehee, Due Process
of Law, ch. ix; Commonwealth v. Alger (1851), 7 Gushing (Mass.), 53;
Thorpe v. Eutland & Burlington Ey. (1855), 27 Vt. 140; Lawton v. Steele
(1894), 152 U. S. 133. As to the power of the States to enter into contracts
limiting its exercise of the police power, see Beer Company v. Massachusetts
(1877), 97 U. S. 25; but compare Stone v. Farmers' Loan & Trust Co.
(1886), 116 U. S. 307 and Georgia Eailroad and Banking Co. v. Smith
(1888), 128 U. S. 174.
As to State regulations for the protection of the public health, see Kim-
mish V. Ball (1889), 129 U. S. 217, Easmussen v. Idaho (1901), 181 U. S.
198, and Eeid v. Colorado (1902), 187 U. S. 137 (acts for preventing im-
portation of infected live stock); Austin v. Tennessee (1900), 179 IT. S.
343, and Cook v. Marshall County (1905), 196 U. S. 261 (sale of cigarettes) ;
Powell V. Pennsylvania (1888), 127 U. S. 678, SchoUenberger v. Pennsyl-
vania (1898), 171 U. S. 1, and Collins v. New Hampshire (1898), 171 U. S.
30 (sale of oleomargarine) ; New York v. Van De Carr (1905), 199 U. S.
552 (sale of milk); Fertilizing Co. v. Hyde Park (1879), 97 U. S. 659
(maintenance of a nuisance) ; California Eeduction Co. v. Sanitary Reduc-
tion Works (1905), 199 U. S. 306 (disposal of garbage).
374 CASElS ON CONSTITUTIONAL LAW.
HOLDEN V. HARDT.
Supreme Coiiet op the United States. 1898.
169 U. S. 366; 42 Lawyers' Ed. 780.
Error to the Supreme Court of the State of Utah.
[The legislature of Utah enacted a law providing that work-
men should not be employed in underground mines or smelters
or other institutions for the reduction of ores or metals for more
than eight hours per day except in certain eases of emergency.
Violation of the statute was made a misdemeanor. The plaintiff
in error having been convicted thereunder set up that the statute
was contrary to the Fourteenth Amendment.]
Mr. Justice Beown . . . delivered the opinion of the
court. .
The validity of the statute in question is . . . challenged
upon the ground of an alleged violation of the Fourteenth
Amendment to the Constitution of the United States, in that it
abridges the privileges or immunities of citizens of the United
States; deprives both the employer and the laborer of his prop-
erty without due process of law, and denies to them the equal
protection of the laws. . . . [Here follows an elaborate ex-
amination and classification of the decisions of the Supreme
Court in interpreting the Fourteenth Amendment.]
The latest utterance of this court upon this subject is con-
tained in the case of AUgeyer v. Louisiana, 165 U. S. 578, 591,
in which it was held that an ict of Louisiana which prohibited
individuals within the State from making contracts of insurance
with corporations doing business in New York, was a violation
of the Fourteenth Amendment. In delivering the opinion of the
court, Mr. Justice Peckham remarked: "In the privilege of
pursuing an ordinary calling or trade, and of acquiring, holding,
and selling property, must be embraced the right to make all
proper contracts in relation thereto, and, although it may be
conceded that this right to contract in relation to persons or
property or to do business within the jurisdiction of the State,
may be regulated and sometimes prohibited, when the contracts
or business conflict with the policy of the State as contained in
its statutes, yet the power does not and cannot extend to pro-
hibiting a citizen from making contracts of the nature involved
in this case outside of the limits and jurisdiction of the State,
and which are also to be performed outside of such jurisdiction."
HOLDEN V. HARDY. 375
This right of contract, however, is itself subject to certain
limitations which the State may lawfully impose in the exercise
of its police powers. While this power is inherent in all govern-
ments, it has doubtless been greatly expanded in its application
during the past century, owing to an enormous increase in the
number of occupations which are dangerous, or so far detri-
mental to the health of employes as to demand special precau-
tions for their well-being and protection, or the safety of adjacent
property. .
While this power is necessarily inherent in every form of gov-
ernment, it was, prior to the adoption of .the Constitution, but
sparingly used in this country. As we were then almost purely
an agricultural people, the occasion for any special protection
of a particular class did not exist. Certain profitable employ-
ments, such as lotteries and the sale of intoxicating liquors, which
were then considered to be legitimate, have since fallen under
the ban of public opinion, and are now either altogether pro-
hibited or made subject to stringent police regulations. .
While the business of mining coal and manufacturing iron
began in Pennsylvania as early as 1716, and in Virginia, North
Carolina and Massachusetts even earlier than this, both mining
and manufacturing were carried on in such a limited way and
by such primitive methods that no special laws were considered
necessary, prior to the adoption of the Constitution, for the pro-
tection of the operatives ; but, in the vast proportions which these
industries have since assumed, it has been found that they can
no longer be carried on with due regard to the safety and health
of those engaged in them, without special protection against the
dangers necessarily incident to these employments. In conse-
quence of this, laws have been enacted in most of the States
designed to meet these exigencies and to secure the safety of
persons peculiarly exposed to these dangers. Within this gen-
eral category are ordinances providing for fire escapes for hotels,
theaters, factories and other large buildings, a municipal inspec-
tion of boilers, and appliances designed to secure passengers
upon railways and steamboats against the dangers necessarily
incident to these methods of transportation. In States where
manufacturing is carried on to a large extent, provision is made
for the protection of dangerous machinery against accidental
contact, for the cleanliness and ventilation of working rooms,
for the guarding of well holes, stairways, elevator shafts and for
the employment of sanitary appliances. In others, where mining
is the principal industry, special provision is made for the shor-
376 CASES ON CONSTITUTIONAL LAW.
ing up of dangerous walls, for ventilation shafts, bore holes,
escapement shafts, means of signalling the surface, for the supply
of fresh air and the elimination, as far as possible, of dangerous
gases, for safe means of hoisting and lowering cages, for a limi-
tation upon the number of persons permitted to enter a cage,
that cages shall be covered, and that there shall be fences and
gates around the top of shafts, besides other similar precau-
tions.
But if it be within the power of a legislature to adopt such
means for the protection of the lives of its citizens, it is difficult
to see why precautions may not also be adopted for the protec-
tion of their health and morals. It is as much for the interest
of the State that the public health should be preserved as that
life should be made secure. With this end in view quarantine
laws have been enacted in most if not all of the States; insane
asylums, public hospitals, and institutions for the care and edu-
cation of the blind established, and special measures taken for
the exclusion of infected cattle, rags, and decayed fruit. In
other States laws have been enacted limiting the hours during
which women and children shall be employed in factories; and
while their constitutionality, at least as applied to women, has
been doubted in some of the States, they have been generally
upheld. Thus, in the case of Commonwealth v. Hamilton Manu-
facturing Co., 120 Mass. 383, it was held that a statute pro-
hibiting the employment of all persons under the age of eighteen,
and of all women laboring in any manufacturing establishment
more than sixty hours per week, violates no contract of the Com-
monwealth implied in the granting of a charter to a manufac-
turing company nor any right reserved under the Constitution
to any individual citizen, and may be maintained as a health or
police regulation.
Upon the principles above stated, we think the act in question
may be sustained as a valid exercise of the police power of the
State. The enactment does not profess to limit the hours of all
workmen, but merely those who are employed in underground
mines, or in the smelting, reduction, or refining of ores or metals.
These employments, when too long pursued, the legislature has
judged to be detrimental to the health of the employes, and,
so long as there are reasonable grounds for believing that this is
so, its decision upon this subject cannot be reviewed by the Fed-
eral courts.
While the general experience of mankind may justify us in
believing that men may engage in ordinary employments more
MUaLER V. KANSAS. 377
than eight hours per day without injur}' to their health, it does
not follow that labor for the same length of time is innocuous
when carried on beneath the surface of the earth, where the
operative is deprived of fresh air and sunlight, and is frequently
subjected to foul atmosphere and a very high temperature, or
to the influence of noxious gases, generated by the processes of
refining or smelting. .
We are of opinion that the act in question was a valid exercise
of the police power of the State, and the judgments of the
Supreme Court of Utah are, therefore. Affirmed.
Mk. Justice Brewer and Mr. Justice Peckham dissented.
Sec. 2. The Protection op Morals.
MUGLER V. KANSAS.
Supreme Court of the United States. 1887.
123 U. 8. 623; 31 Lawyers' Ed. 205.
Error to the Supreme Court of the State of Kansas.
The constitution of the State of Kansas contains the follow-
ing article, being art. 15 of § 10, which was adopted by the
people November 2, 1880:
"The manufacture and sale of intoxicating liquors shall be
forever prohibited in this State, except for medical, scientific,
and mechanical purposes."
The legislature of Kansas enacted a statute to carry this into
effect. . . .
The plaintiff in error, Mugler, the proprietor of a brewery in
Saline County, Kansas, was indicted in the District Court in that
county in November, 1881, for offenses against this statute.
Mugler was adjudged to be guilty, and was sentenced to pay
a fine of one hundred dollars and costs, and motions for a new
trial and in arrest of judgment were overruled. This judgment
being affirmed by the Supreme Court of the State on appeal, the
cause was brought here by writ of error on his motion, i . . .
1 The case of Kansas v. Zeibold, which was appealed from the Circuit
Court of the United States for the District of Kansas, was heard at the
same time.
378 CASES ON CONSTITUTIONAL LAW.
Mr. Justice Haelan delivered the opinion of the court.
These cases involve an inquiry into the validity of certain
statutes of Kansas relating to the manufacture and sale of intox-
icating liquors. .
The general question in each case is, whether the foregoing
statutes of Kansas are in conflict with that clause of the Four-
teenth Amendment, which provides that ' ' no 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." . . .
In Foster v. Kansas, 112 U. S. 201, 206, the court said that
the question as to the constitutional power of a State to prohibit
the manufacture and sale of intoxicating liquors was no longer
an open one in this court. .
It is, however, contended that, although the State may pro-
hibit the manufacture of intoxicating liquors for sale or barter
within her limits, for general use as a beverage, ' ' no convention
or legislature has the right, under our form of government, to
prohibit any citizen from manufacturing for his own use, or for
export, or storage, any article of food or drink not endangering
or affecting the rights of others." The argument made in sup-
port of the first branch of this proposition, briefly stated, is, that
in the implied compact between the State and the citizen certain
rights are reserved by the latter, which are guaranteed by the
constitutional provision protecting persons against being de-
prived of life, liberty, or property, without due process of law,
and with which the State cannot interfere; that among those
rights is that of manufacturing for one's use either food or
drink; and that while, according to the doctrines of the Com-
mune, the State may control the tastes, appetites, habits, dress,
food, and drink of the people, our system of government, based
upon the individuality and intelligence of the citizen, does not
claim to control him, except as to his conduct to others, leaving
him the sole judge as to all that only affects himself.
It will be observed that the proposition, and the argument
made in support of it, equally concede that the right to manu-
facture drink for one's personal use is subject to the condition
that such manufacture does not endanger or affect the rights of
others. If such manufacture does prejudicially affect the rights
and interests of the community, it follows, from the very prem-
ises stated, that society has the power to protect itself, by legis-
lation, against the injurious consequences of that business. As
MUGLER V. KANSAS. 379
was said in Munn v. Illinois, 94 U. S. 113, 124, while power does
not exist with the whole people to control rights that are purely
and exclusively private, government may require "each citizen
to so conduct himself, and so use his own property, as not un-
necessarily to injure another."
But hy whom, or by what authority, is it to be determined
whether the manufacture of particular articles of drink, either
for general use or for the personal use of the maker, will inju-
riously affect the public? Power to determine such questions,
so as to bind all, must exist somewhere ; else society will be at
the mercy df the few, who, regarding only their own appetites
or passions, may be willing to imperil the peace and security of
the many, provided only they are permitted to do as they please.
Under our system that power is lodged with the legislative branch
of the government. It belongs to that department to exert what
are known as the police powers of the State, and to determine,
primarily what measures are appropriate or needful for the
protection of the public morals, the public health, or the public
safety.
It does not at all foUow that every statute enacted ostensibly
for the promotion of these ends is to be accepted as a legitimate
exertion of the police powers of the State. There are, of neces-
sity, limits beyond which legislation cannot rightfully go. . . .
The courts are not bound by mere forms, nor are they to be
misled by mere pretenses. They are at liberty — indeed, are
under a solemn duty — to look at the substance of things, when-
ever they enter upon the inquiry whether the legislature has
transcended the limits of its authority. If, therefore, a statute
purporting to have been enacted to protect the public health,
the public morals, or the public safety, has no real or substantial
relation to those objects, or is a palpable invasion of rights
secured by the fundamental law, it is the duty of the courts to
so adjudge, and thereby give effect to the Constitution.
Keeping in view these principles, as governing the relations
of the judicial and legislative departments of government with
each other, it is diflScult to perceive any ground for the judiciary
to declare that the prohibition by Kansas of the manufacture or
sale, within her limits, of intoxicating liquors for general use
there as a bevera.ge, is not fairly adapted to the end of protecting
the community against the evils which confessedly result from
the excessive use of ardent spirits. There is no justification for
holding that the State, under the guise merely of police regula-
tions, is here aiming to deprive the citizen of his constitutional
380 CASES ON CONSTITUTIONAL LAW.
rights J for we cannot shut out of view the fact, within the knowl-
edge of all, that the public health, the public morals, and the
public safety, may be endangered by the general use of intoxi-
cating drinks ; nor the fact, established by statistics accessible to
everyone, that the idleness, disorder, pauperism, and crime exist-
ing in the country are, in some degree at least, traceable to this
evil. .
It is contended that, as the primary and principal use of beer
is as a beverage ; as their respective breweries were erected when
it was lawful to engage in the manufacture of beer for every
purpose ; as such establishments will become of no value as prop-
erty; or, at least, will be materially diminished in value, if not
employed in the manufacture of beer for every purpose; the
prohibition upon their being so employed is, in effect, a taking
of property for public use without compensation, and depriving
the citizen of his property without due process of law. In other
words, although the State, in the exercise of her police powers,
may lawfully prohibit the manufacture and sale, within her
limits, of intoxicating liquors to be used as a beverage, legisla-
tion having that object in view cannot be enforced against those
who, at the time, happen to own property, the chief value of
which consists in its fitness for such manufacturing purposes,
unless compensation is first made for the diminution in the value
of their property, resulting from such prohibitory enactments.
This interpretation of the Fourteenth Amendment is inad-
missible. It cannot be supposed that the States intended, by
adopting that Amendment, to impose restraints upon the exercise
of their powers for the protection of the safety, health, or morals
of the community. In respect to contracts, the obligations of
which are protected against hostile state legislation, this court in
Butchers' Union Co. v. Crescent City Co., Ill U. S. 746, 751,
said that the State could not, by any contract, limit the exercise
of her power to the prejudice of the public health and the public
morals. So, in Stone v. Mississippi, 101 U. S. 814, 816, where
the Constitution was invoked against the repeal by the State of a
charter, granted to a private corporation, to conduct a lottery,
and for which that corporation paid to the State a valuable con-
sideration in money, the court said : "No legislature can bargain
away the public health or the public morals. The people them-
selves cannot do it, much less their servants. . . . Govern-
ment is organized with a view to their preservation, and cannot
divest itself of the power to provide for them." Again, in New
Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 672 : "The
MUGLBR V. KANSAS. 381
constitutional prohibition upon state laws impairing the obliga-
tion of contracts does not restrict the power of the State to pro-
tect the public health, the public morals, or the public safety,
as the one or the other may be involved in the execution of such
contracts. Eights and privileges arising from contracts with a
State are subject to regulations for the protection of the public
health, the public morals, and the public safety, in the same
sense, and to the same extent, as are all contracts and all prop-
erty, whether owned by natural persons or corporations."
The principle, that no person shall be deprived of life, liberty,
or property, without due process of law, was embodied, in sub-
stance, in the constitutions of nearly all, if not all, of the States
at the time of the adoption of the Fourteenth Amendment ; and
it has never been regarded as incompatible with the principle,
equally vital, because essential to the peace and safety of society,
that all property in this country is held under the implied obli-
gation that the owner's use of it shall not be injurious to the
community. Beer Co. v. Massachusetts, 97 U. S. 25, 32; Com-
monwealth V. Alger, 7 Cush. 53. An illustration of this doctrine
is afforded by Patterson v. Kentucky, 97 U. S. 501. . . .
[The court also cites United States v. Dewitt, 9 Wall. 41;
License Tax Cases, 5 Wall. 462; Pervear v. Commonwealth, 5
Wall. 475; Fertilizing Co. v. Hyde Park, 97 U. S. 659, 667;
Pumpelly v. Green Bay Co., 13 Wall. 166 ; Transportation Co.
v. Chicago, 99 U. S. 635.]
A prohibition simply upon the use of property for purposes
that are declared, by valid legislation, to be injurious to the
health, morals, or safety of the community, cannot, in any just
sense, be deemed a taking or an appropriation of property for
the public benefit. Such legislation does not disturb the owner
in the control or use of his property for lawful purposes, nor
restrict his right to dispose of it, but is only a declaration by the
State that its use by any one, for certain forbidden purposes,
is prejudicial to the public interests. Nor can legislation of that
character come within the Fourteenth Amendment, in any case,
unless it is apparent that its real object is not to protect the com-
munity, or to promote the general well-being, but, under the
guise of police regulation, to deprive the owner of his liberty
and property, without due process of law. The power which the
States have of prohibiting such use by individuals of their prop-
erty as will be prejudicial to the health, the morals, or the safety
of the' public, is not — and, consistently with the existence and
safety of organized society, cannot be — burdened with the con-
382 CASES ON CONSTITUTIONAL LAW.
dition that the State must compensate such individual owners
for pecuniary losses they may sustain, by reason of their not
being permitted, by a noxious use of their property, to inflict
injury upon the community. The exercise of the police power
by the destruction of property which is itself a public nuisance,
or the prohibition of its use in a particular way, whereby its
value becomes depreciated, is very different from taking prop-
erty for public use, or from depriving a person of his property
without due process of law. In the one case, a nuisance only is
abated; in the other, unoffending property is taken away from
an innocent owner.
It is true, that, when the defendants in these cases purchased
or erected their breweries, the laws of the State did not forbid
the manufacture of intoxicating liquors. But the State did not
thereby give any assurance, or come under an obligation, that
its legislation upon that subject would remain unchanged. . . .
For the reasons stated, we are of opinion that the judgments
of the Supreme Court of Kansas have not denied to Mugler, the
plaintiff in error, any right, privilege, or immunity secured to
him by the Constitution of the United States, and its judgment,
in each case, is, accordingly, affirmed.
[Mr. Justice Field delivered a separate opinion.]
Note. — As to other legislation for the protection of morals, see L'Hote
V. New Orleans (1900), 177 U. S. 587 (regulation of prostitution); Booth
V. niinois (1902), 184 TJ. S. 425, Otis v. Parker (1903), 187 U. S. 606,
Gatewood v. North Carolina (1906), 203 XT. S. 531 (speculation); Ah Lin
V. Wittman (1905), 198 U. S. 500, Marvin v. Trout (1905), 199 U. S. 212
(gambling).
LEISY V. HARDIN.
Sdpeeme Court op the United States. 1890.
135 U. S. 100; 34 Lawyers' Ed. 128.
Error to the Supreme Court of the State of Iowa.
[The plaintiffs, who were brewers doing business at Peoria,
Illinois, had shipped beer in sealed packages to Keokuk, Iowa,
where it was offered for sale in the original packages. A cer-
tain quantity of the beer was seized by Hardin, the city marshal
of Keokuk under color of authority of the statutes of Iowa which
forbade the manufacture or sale of intoxicating liquors, or keep-
ing them with intent to sell, except for medicinal, chemical,
LEISY V. HARDIN. 383
pharmaceutical and sacramental purposes as allowed in the act.
The plaintiffs brought replevin against Hardin to recover the
beer seized, and the local court gave judgment for the plaintiffs
on the ground that the State enactment was invalid. This
judgment was reversed by the Supreme Court of Iowa.]
Me. Chief Justice Fuller . . . delivered the opinion of
the court. .
While, by virtue of its jurisdiction over persons and property
within its limits, a State may provide for the security of the
lives, limbs, health and comfort of persons, and the protection
of property so situated, yet a subject-matter which has been con-
fided exclusively to Congress by the Constitution is not within
the jurisdiction of the police power of the State, unless placed
there by congressional action. Henderson v. Mayor of New
York, 92 U. S. 259 ; Railroad Co. v. Husen, 95 U. S. 465 ; Walling
V. Michigan, 116 U. S. 466 ; Robbins v. Shelby Taxing District,
120 U. S. 489. The power to regulate commerce among the States
is a unit, but if particular subjects within its operation do not
require the application of a general or uniform system, the
States may legislate in regard to them with a view to local needs
and circumstances, until Congress otherwise directs; but the
power thus exercised by the States is not identical in its extent
with the power to regulate commerce among the States. The
power to pass laws in respect to internal commerce, inspection
laws, quarantine laws, health laws, and laws in relation to
bridges, ferries, and highways, belongs to the class of powers
pertaining to locality, essential to local intercommunication, to
the progress and development of local prosperity, and to the
protection, the safety, and welfare of society, originally neces-
sarily belonging to, and upon the adoption of the Constitution
reserved by, the States, except so far as falling within the scope
of a power confided to the general government. Where the
subject-matter requires a uniform system as between the States,
the power controlling it is vested exclusively in Congress, and
cannot be encroached upon by the States ; but where, in relation
to the subject matter, different rules may be suitable for different
localities, the States may exercise powers which, though they may
be said to partake of the nature of the power granted to the
general government, are strictly not such, but are simply local
powers, which have full operation until or unless circumscribed
by the action of Congress in effectuation of the general power.
Cooley V. Port Wardens of Philadelphia, 12 How. 299.
384 CASES ON CONSTITUTIONAL LAW.
It was stated in the 32d number of the Federalist that the
States might exercise concurrent and independent power in all
cases but three : First, where the power was lodged exclusively
in the federal constitution; second, where it was given to the
United States and prohibited to the States; third, where, from
the nature and subjects of the power, it must be necessarily
exercised by the national government exclusively. But it is
easy to see that Congress may assert an authority under one of
the granted powers, which would exclude the exercise by the
States upon the same subject of a different but similar power,
between which and that possessed by the general government no
inherent repugnancy existed.
Whenever, however, a particular power of the general govern-
ment is one' which must necessarily be exercised by it, and Con-
gress remains silent, this is not only not a concession that the
powers reserved by the States may be exerted as if the specific
power had not been elsewhere reposed, but, on the contrary, the
only legitimate conclusion is that the general government in-
tended that power should not be affirmatively exercised, and the
action of the States cannot be permitted to effect that which
would be incompatible with such intention. Hence, inasmuch as
interstate commerce, consisting in the transportation, purchase,
sale, and exchange of commodities, is national in its character,
and must be governed by a uniform system, so long as Congress
does not pass any law to regulate it, or allowing the States so to
do, it thereby indicates its will that such commerce shall be free
and untrammelled. County of Mobile v. Kimball, 102 U. S. 691 ;
Brown v. Houston, 114 U. S. 622, 631 ; Wabash, St. Louis, etc.,
Railway v. Illinois, 118 U. S. 557; Bobbins v. Shelby Taxing
District, 120 U. S. 489, 493.
That ardent spirits, distilled liquors, ale and beer, are subjects
of exchange, barter and traffic, like any other commodity in
which a right of traffic exists, and are so recognized by the usages
of the commercial world, the laws of Congress and the decisions
of courts, is not denied. Being thus articles of commerce, can a
State, in the absence of legislation on the part of Congress, pro-
hibit their importation from abroad or from a sister State? or
when imported prohibit their sale by the importer ? If the im-
portation cannot be prohibited without the consent of Congress,
when does property imported from abroad, or from a sister
State', so become part of the common mass of property within a
State as to be subject to its unimpeded control ? . . .
Although the precise question before us was not ruled in Gib-
LEISY V. HAEDIN. 385
bons V. Ogden and Brown v. Maryland, yet we think it was vir-
tually involved and answered, and that this is demonstrated,
among other cases, in Bowman v. Chicago & Northwestern Rail-
way Co., 125 U. S., 465. In the latter case, section 1553 of the
Code of the State of Iowa as amended by c. 143 of the acts of the
twentieth General Assembly in 1886, forbidding common car-
riers to bring intoxicating liquors into the State from any other
State or Territory, without first being furnished with a cer-
tificate as prescribed, was declared invalid, because essentially a
regulation of commerce among the States, and not sanctioned by
the authority, express or implied, of Congress. The opinion of
the court, delivered by Mr. Justice Matthews, the concurring
opinion of Mr. Justice Field, and the dissenting opinion by Mr.
Justice Harlan, on behalf of Mr. Chief Justice Waite, Mr. Jus-
tice Gray, and himself, discussed the question involved in all
its phases ; and while the determination of whether the right of
transportation of an article of commerce from one State to
another includes by necessary implication the right of the con-
signee to sell it in unbroken packages at the place where the
transportation terminates was in terms reserved, yet the argu-
ment of the majority conducts irresistibly to that conclusion, and
we think we cannot do better than repeat the grounds upon
which the decision was made to rest. It is there shown that the'
transportation of freight or of the subjects of commerce, for the
purpose of exchange or sale, is beyond all question a constituent
of commerce itself; that this was the prominent idea in the
minds of the framers of the Constitution, when to Congress was
committed the power to regulate commerce among the several
States; that the power to prevent embarrassing restrictions by
any State was the end desired ; that the power was given by the
same words and in the same clause by which was conferred power
to regulate commerce with foreign nations ; and that it would be
absurd to suppose that the transmission of the subjects of trade
from the State of the buyer, or from the place of production to
the market, was not contemplated, for without that there could
be no consummated trade, either with foreign nations or among
the States. It is explained that where State laws alleged to be
regulations of commerce among the States, have been sustained,
they were laws which related to bridges or dams across streams,
wholly within the State, or police or health laws, or to subjects
of a kindred nature, not strictly of commercial regulation. But
the transportation of passengers or of merchandise from one
State to another is in its nature national, admitting of but one
E. C. L— 25
386 CASES ON CONSTITUTIONAL LAW.
regulating power; and it was to guard against the possibility
of commercial embarrassments which would result if one State
could directly or indirectly tax persons or property passing
through it, or prohibit particular property from entrance into
the State, that the power of regulating commerce among the
States was conferred upon the federal government. . . .
The observations of Mr. Justice Catron, in The License Cases,
5 How. 504, 599, are quoted to the effect that what does not be-
long to commerce is within the jurisdiction of the police
power of the State, but that which does belong to commerce is
within the jurisdiction of the United States; that to extend the
police power over subjects of commerce would be to make com-
merce subordinate to that power, and would enable the State to
bring within the police power ' ' any article of consumption that
a State might wish to exclude, whether it belonged to that which
was drunk, or to food and clothing; and with nearly equal claims
to propriety, as malt liquors, and the products of fruits other
than grapes stand on no higher ground than the light wines of
this and other countries, excluded in effect by the law as it now
stands. And it would be only another step to regulate real or
supposed extravagance in food and clothing." And Mr. Justice
Matthews thus proceeds, p. 493: "For the purpose of protect-
ing its people against the evils of intemperance, it has the right
to prohibit the manufacture within its limits of intoxicating
liquors ; it may also prohibit all domestic commerce in them be-
tween its own inhabitants, whether the articles are introduced
from other States or from foreign countries ; it may punish those
who sell them in violation of its laws; it may adopt any meas-
ures tending, even indirectly and remotely, to make the policy
effective — until it passes the line of power delegated to Congress
under the Constitution. It cannot, without the consent of Con-
gress, express or implied, regulate commerce between its peo-
ple and those of the other States of the Union in order to effect
its end, however desirable such a regulation might be. . . .
Can it be supposed that by omitting any express declaration on
the subject. Congress has intended to submit to the several
States the decision of the question in each locality of what shall
and what shall not be articles of traffic in the interstate com-
merce of the country ? If so, it has left to each State, according
to its own caprice and arbitrary will, to discriminate for or
against every article grown, produced, manufactured or sold in
any State and sought to be introduced as an article of com-
merce into any other. If the State of Iowa may prohibit the
LEISY V. HARDIN. 387
importation of intoxicating liquors from all other States, it may
also include tobacco, or any other article, the use or abuse of
which it may deem deleterious. It may not choose, even, to be
governed by considerations growing out of the health, comfort
or peace of the community. Its policy may be directed to other
ends. It may choose to establish a system directed to the pro-
motion and benefit of its own agriculture, manufactures or arts
of any description, and prevent the introduction and sale within
its limits of any or of all articles that it may select as coming
into competition with those which it seeks to protect. The police
power of the State would extend to such cases, as well as to
those in which it was sought to legislate in behalf of the health,
peace and morals of the people. In view of the commercial
anarchy and confusion that would result from the divers exer-
tions of power by the several States of the Union, it cannot be
supposed that the Constitution or Congress have intended to
limit the freedom of commercial intercourse among the people
of the several States." . . .
The plaintiffs in error are citizens of Illinois, are not pharma-
cists, and have no permit, but import into Iowa beer, which they
sell in original packages, as described. Under our decision in
Bowman v. Chicago, etc., Eailway Co., supra, they had the rights
to import this beer into that State, and in the view which we
have expressed they had the right to sell it, by which act alone
it would become mingled in the common mass of property within
the State. Up to that point of time, we hold that in the absence
of congressional permission to do so, the State had no power to
interfere by seizure, or any other action, in prohibition of im-
portation and sale by the foreign or non-resident importer.
Whatever our individual views may be as to the deleterious or
dangerous qualities of particular articles, we cannot hold that
any articles which Congress recognizes as subjects of interstate
commerce are not such, or that whatever are thus recognized can
be controlled by state laws amounting to regulations, while they
retain that character; although, at the same time, if directly
dangerous in themselves, the State may take appropriate meas-
ures to guard against injury before it obtains complete juris-
diction over them. To concede to a State the power to exclude,
directly or indirectly, articles so situated, without congressional
permission, is to concede to a majority of the people of a State,
represented in the state legislature, the power to regulate com-
mercial intercourse between the States, by determining what
shall be its subjects, when that power was distinctly granted to
388 CASES ON CONSTITUTIONAL LAW.
be exercised by the people of the United States, represented in
Congress, and its possession by the latter was considered essen-
tial to that more perfect Union which the Constitution was
adopted to create. Undoubtedly, there is difficulty in drawing
the line between the municipal powers of the one government
and the commercial powers of the other, but when that line is
determined, in the particular instance, accommodation to it, with-
out serious inconvenience, may readily be found, to use the lan-
guage of Mr. Justice Johnson, in Gibbons v. Ogden, 9 Wheat.
1, 238, in "a frank and candid co-operation for the general
good."
The legislation in question is to the extent indicated repugnant
to the third clause of section 8 of Art. I of the Constitution of
the United States, and therefore the judgment of the Supreme
Court of Iowa is
Reversed and the cause remanded for further proceedings not
inconsistent mth this opinion.
Mb. Justice Gray, with whom concurred Mr. Justice Har-
].AN and Mr. Justice Brewer, dissenting. . . .
Note. — The adjustment between the police power of the States and the
power of Congress to regulate interstate and foreign commerce has led to
several conflicts as to which should control the traffic in intoxicating liquors.
In the License Cases (1847), 5 Howard, 504, the court held that in the
absence of any assertion of the paramount authority of Congress the police
power of the States should govern ; but when the principal case was decided
the doctrine of ' ' the silence of Congress ' ' had developed and the License
Cases were overruled. Had the court chosen to hold that the police power
of the State continued to control until it conflicted with the superior author-
ity of some express enactment of Congress, its view would have been sup-
ported by the uniform attitude of organized society toward the liquor
traffic as far back as historic records run. In the oldest laws known, the
Babylonian Code of Hammurabi (about 2250 B. C.) sees. 108-110, there are
police regulations concerning the sale of liquor. The decision in the prin-
cipal case was followed by the enactment of the Wilson Act of 1890, 26 Stat,
at Large, 313, by which intoxicating liquors transported in interstate com-
merce were made subject to the police power of the States immediately
"upon their arrival" therein. The constitutionality of this act was sus-
tained in In re Eahrer (1891), 140 IJ. S. 545, but its effectiveness was much
restricted, from the standpoint of the States seeking to exclude the traffic
in liquor, by the court's decision in Ehodes v. Iowa (1898), 170 U. S. 412,
that the word "arrival" meant actual delivery to the consignee and not
merely actual arrival within the State of destination. See also Eossi v.
Pennsylvania (1915), 238 U. S. 62. Dissatisfaction with this result led to
the enactment in 1913 of the Webb-Kenyon Act, 37 Stat, at Large, 699,
which prohibits the shipment into a State of any intoxicating liquor which
"is intended by any person interested therein to be received, possessed,
ESCANABA COMPANY v. CHICAGO. 389
sold, or in any manner used, either in the original package or otherwise, in
violation of any law of such State." The act was vetoed by President Taft
in his message of February 28, 1913, the substance of which appears in this
paragraph :
One of the main purposes of the union of the States under the
Constitution was to relieve the commerce between the States of
the burdens which local State jealousies and purposes had in the
past imposed upon it; and the interstate commerce clause in the
Constitution was one of the chief reasons for its adoption. The
power was there conferred upon Congress. Now, if to the discre-
tion of Congress is committed the question whether in interstate
commerce we shall return to the old methods prevailing before the
Constitution or not, it would seem to be conferring upon Congress
the power to amend the Constitution by ignoring or striking out
one of its most important provisions. It was certainly intended
by that clause to secure uniformity in the regulation of commerce
between the States. To suspend that purpose and to permit the
States to exercise their old authority before they became States, to
interfere with commerce between them and their neighbors, is to
defeat the constitutional purpose.
The act was passed over the President's veto. Its validity has not yet
been determined, but it has been held that it applies only to shipments of
liquor intended to be held or sold in violation of the laws of the States into
which it is sent. Adams Express Co. v. Kentucky (1915), 238 U. S. 190.
Liquor kept in a State to be disposed of exclusively by means of mail orders
from other States is under the protection of the commerce clause. Heyman
V. Hays (1915), 236 U. S. 178.
Section 3. The Preservation of Sapett and Order.
ESCANABA COMPANY v. CHICAGO.
Supreme Court of the United States. 1882.
107 U. S. 678; 27 Lawyers' Ed. 442.
Appeal from the Cirept Court of the United States for the
Northern District of Illinois.
[The Escanaba and Lake Michigan Transportation Company,
a corporation formed under the laws of Michigan, owns and
operates a line of steamers plying between various ports on Lake
Michigan, but principally between Escanaba, Mich., and docks
on the south branch of the Chicago river. The navigable part
of this stream lies almost wholly within the city of Chicago, and
consists of a main stream and two branches which divide the city
into three parts known locally as the North Side, South Side and
West Side. The most important part of the business district lies
390 CASES ON CONSTITUTIONAL LAW.
on the South Side, and is reached from the other sections by
numerous bridges over which there is a constant stream of traf-
fic, and which are provided with draws through which vessels
navigating the river may pass. In order to prevent undue delay,
particularly at the beginning and close of business, the city of
Chicago, duly authorized thereto by the State of Illinois, enacted
ordinances providing that between the hours of 6 and 7 in the
morning and 5:30 and 6:30 in the evening, Sundays excepted,
the draws should not be opened, while between 7 A. M. and
5 :30 P. M. no bridge should be opened for a longer period than
ten minutes, and when closed it should be kept closed for at
least ten minutes, if necessary, in order to enable foot-passengers
and vehicles in waiting to pass over.]
Me. Justice Field delivered the opinion of the court. . . .
The limitation of ten minutes for the passage of the draws by
vessels seems to have been eminently wise and proper for the
protection of the interests of all parties. Ten minutes is ample
time for any vessel to pass the draw of a bridge, and the allow-
ance of more time would subject foot-passengers, teams, and
other vehicles to great inconvenience and delays.
The complainant principally objects to this ten minutes' lim-
itation, and to the assignment of the morning and evening hour
to pedestrians and vehicles. It insists that the navigation of the
river and its branches should not be thus delayed ; and that the
rights of commerce by vessels are paramount to the rights of
commerce by any other way.
But in this view the complainant is in error. The rights of
each class are to be enjoyed without invasion of the equal rights
of others. Some concession must be made on every side for the
Convenience and the harmonious pursuit of different occupa-
tions. Independently of any constitutional restrictions, nothing
would seem more just and reasonable, or better designed to meet
the wants of the population of an immense city, consistently
with the interests of commerce, than the ten minutes' rule, and
the assignment of the morning and evening hours which the city
ordinance has prescribed.
The power vested in the general government to regulate inter-
state and foreign commerce involves the control of the waters
of the United States which are navigable in fact, so far as it may
be necessary to insure their free navigation, when by them-
selves or their connection with other waters they form a con-
tinuous channel for commerce among the States or with foreign
ESCANABA COMPANY v. CHICAGO. 391
countries. The Daniel Ball, 10 WaU. 557. Such is the ease with
the Chicago Eiver and its branches. The common-law test of the
navigability of waters, that they are subject to the ebb and flow
of the tide, grew out of the fact that in England there are no
waters navigable in fact, or to any great extent, which are not
also affected by the tide. That test has long since been discarded
in this country. Vessels larger than any which existed in Eng-
land, when that test was established, now navigate rivers and
inland lakes for more than a thousand miles beyond the reach
of any tide. That test only becomes important when consider-
ing the rights of riparian owners to the bed of the stream, as in
some States it governs in that matter.
The Chicago River and its branches must, therefore, be deemed
navigable waters of the United States, over which Congress under
its commercial power may exercise control to the extent neces-
sary to protect, preserve, and improve their free navigation.
But the States have full power to regulate within their limits
matters of internal police, including in that general designation
whatever will promote the peace, comfort, convenience, and pros-
perity of their people. This power embraces the construction of
roads, canals, and bridges, and the establishment of ferries, and
it can generally be exercised more wisely by the States than by a
distant authority. They are the first to see the importance of
such means of internal communication, and are more deeply
concerned than others in their wise management. Illinois is
more immediately affected by the bridges over the Chicago River
and its branches than any other State, and is more directly con-
cerned for the prosperity of the city of Chicago, for the con-
venience and comfort of its inhabitants, and the growth of its
commerce. And nowhere could the power to control the bridges
in that city, their construction, form, and strength, and the size
of their draws, and the manner and times of using them, be bet-
ter vested than with the State, or the authorities of the city upon
whom it has devolved that duty. When its power is exercised, so
as to unnecessarily obstruct the navigation of the river or its
branches. Congress may interfere and remove the obstruction.
If the power of the State and that of the Federal government
come in conflict, the latter must control and the former yield.
This necessarily follows from the position given by the Constitu-
tion to legislation in pursuance of it, as the supreme law of the
land. But until Congress acts on the subject, the power of the
State over bridges across its navigable streams is plenary. This
doctrine has been recognized from the earliest period, and ap-
392 CASES ON CONSTITUTIONAL LAW.
proved in repeated eases, the most notable of which are Willson
V. The Blackbird Creek Marsh Co., 2 Pet. 245, decided in 1829,
and Gilman v. Philadelphia, 3 Wall. 713, decided in 1865. . . .
[Here follow citations from these cases and from Pound v. Turck,
95 U. S. 459.]
The doctrine declared in these several decisions is in accord-
ance with the more general doctrine now firmly established, that
the commercial power of Congress is exclusive of State authority
only when the subjects upon which it is exercised are national in
their character, and admit and require uniformity of regulation
affecting alike all the States. Upon such subjects only that
authority can act which can speak for the whole country. Its
non-action is therefore a declaration that they shall remain free
from all regulation. Welton v. State of Missouri, 91 U. S. 275 ;
Henderson v. Mayor of New York, 92 id., 259 ; County of Mobile
V. Kimball, 102 id., 691.
On the other hand, where the subjects on which the power may
be exercised are local in their nature or operation, or constitute
mere aids to commerce, the authority of the State may be exerted
for their regulation and management until Congress interferes
and supersedes it. As said in the case last cited : "The uniform-
ity of commercial regulations which the grant to Congress was
designed to secure against conflicting State provisions, was neces-
sarily intended only for cases where such uniformity is prac-
ticable. Where, from the nature of the subject or the sphere of
its operations, the case is local and limited, special regulations,
adapted to the immediate locality, could only have been con-
templated. State action upon such subjects can constitute no
interference with the commercial power of Congress, for when
that acts the State authority is superseded. Inaction of Con-
gress upon these subjects of a local nature or operation, unlike
its inaction upon matters affecting all the States and requiring
uniformity of regulation, is not to be taken as a declaration that
nothing shall be done in respect to them, but is rather to be
deemed a declaration that for the time being and until it sees fit
to act they may be regulated by State authority."
Bridges over navigable streams, which are entirely within the
limits of a State, are of the latter class. The local authority can
better appreciate their necessity, and can better direct the man-
ner in which they shall be used and regulated than a government
at a distance. It is, therefore, a matter of good sense and prac-
tical wisdom to leave their control and management with the
States, Congress having the power at all times to interfere and
BSCANABA COMPANY v. CHICAGO. 393
supersede their authority whenever they act arbitrarily and to
the injury of commerce.
It is, however, contended here that Congress has interfered,
and by its legislation expressed its opinion as to the navigation of
Chicago Kiver and its branches; that it has done so by acts
recognizing the ordinance of 1787, and by appropriations for
the improvement of the harbor of Chicago.
The ordinance of 1787 for the government of the territory of
the United States northwest of the Ohio River, contained in its
fourth article a clause declaring that, "The navigable waters
leading into the Mississippi and St. Lawrence, and the carrying
places between them, shall be common highways and forever free,
as well to the inhabitants of the said territory as to the citizens
of the United States and those of any other States that may be
admitted into the confederacy, without any tax, impost, or duty
therefor. ' '
The ordinance was passed July 13, 1787, one year and nearly
eight months before the Constitution took effect ; and although it
appears to have been treated afterwards as in force in the terri-
tory, except as modified by Congress, and by the act of May 7,
1800, c. 41, creating the Territory of Indiana, and by the act of
February 3, 1809, c. 13, creating the Territory of Illinois, the
rights and privileges granted by the ordinance are expressly
secured to the inhabitants of those Territories ; and although the
act of April 18, 1818. c. 67, enabling the people of Illinois Terri-
tory to form a constitution and State government, and the reso-
lution of Congress of Dec. 3, 1818, declaring the admission of
the State into the Union, refer to the principles of the ordinance
according to which the constitution was to be formed, its pro-
visions could not control the authority and powers of the State
after her admission. Whatever the limitation upon her powers
as a government whilst in a territorial condition, whether from
the ordinance of 1787 or the legislation of Congress, it ceased to
have any operative force, except as voluntarily adopted by her,
after she became a State of the Union. On her admission she at
once became entitled to and possessed of all the rights of domin-
ion and sovereignty which belonged to the original States. She
was admitted, and could be admitted, only on the same footing
with them. The language of the resolution admitting her is "on
an equal footing vsdth the original States in all respects what-
ever." 3 Stat. 536. Equality of constitutional right and power
is the condition of all the States of the Union, old and new.
Illinois, therefore, as was weU observed by counsel, could after-
394 CASES ON CONSTITUTIONAL LAW.
wards exercise the same power over rivers within her limits that
Delaware exercised over Black Bird Creek, and Pennsylvania
over the Schuylkill River. Pollard's Lessee v. Hagan, 3 How.
212 ; Permoli v. First Municipality, id. 589 ; Strader v. Graham,
10 id. 82.
But aside from these considerations, we do not see that the
clause of the ordinance upon which reliance is placed materially
affects the question before us. That clause contains two provi-
sions : one that the navigable waters leading into the Mississippi
and the St. Lawrence shall be common highways to the inhabi-
tants; and the other, that they shall be forever free to them
without any tax, impost, or duty therefor. The navigation of the
Illinois River is free, so far as we are informed, from any tax,
impost, or duty, and its character as a common highway is not
affected by the fact that it is crossed by bridges. All highways,
whether by land or water, are subject to such crossings as the
public necessities and convenience may require, and their char-
acter as such is not changed, if the crossings are allowed under
reasonable conditions, and not so as to needlessly obstruct the
use of the highways. In the sense in which the terms are used
by publicists and statesmen, free navigation is consistent with
ferries and bridges across a river for the transit of persons and
merchandise as the necessities and convenience of the community
may require. . . .
As to the appropriations by Congress, no money has been ex-
pended on the improvement of the Chicago River above the first
bridge from the lake, known as Rush Street Bridge. No bridge,
therefore, interferes with the navigation of any portion of the
river which has been thus improved. But, if it were otherwise, it
is not perceived how the improvement of the navigability of the
stream can affect the ordinary means of crossing it by ferries
and bridges. The free navigation of a stream does not require
an abandonment of those means. To render the action of the
State invalid in constructing or authorizing the construction of
bridges over one of its navigable streams, the general govern-
ment must directly interfere so as to supersede its authority and
annul what it has done in the matter. . . .
From any view of this case, we see no error in the action of
the court below, and this decree must accordingly be
Affirmed.
CITY OF CHICAGO V. STURGBS. 395
CITY OF CHICAGO v. STUKGES.
Supreme Court of the United States. 1911.
222 U. S. 313; 56 Lawyers' Ed. 215.
Error to tlie Supreme Court of the State of Illinois.
Mr. Justice Lurton delivered the opinion of the court.
The only question under this writ of error is as to the validity
of a statute of the State of Illinois entitled ' ' An Act to indem-
nify the owners of property for damages occasioned by mobs and
riots." Laws of 1887, p. 237. . . .
It was urged in the Illinois courts that the act violated the
guarantee of due process of law aild the equal protection of the
law as provided by the Fourteenth Amendment of the Constitu-
tion of the United States.
By the provisions of the statute referred to, a city is made
liable for three-fourths of the damage resulting to property
situated therein, caused by the violence of any mob or riotous
assemblage of more than twelve persons, not abetted or permitted
by the negligent or wrongful act of- the owner, etc. If the dam-
age be' to property not within the city, then the county in which
it is located is in like manner made responsible. .
It is said that the act denies to the city due process of law,
since it imposes liability irrespective of any question of the power
of the city to have prevented the violence, or of negligence in
the use of its power. This was the interpretation placed upon
the act by the Supreme Court of Illinois. Does the law as thus
interpreted deny due process of law ? That the law provides for
a judicial hearing and a remedy over against those primarily
liable narrows the objection to the single question of legislative
power to impose liability regardless of fault.
It is a general principle of our law that there is no individual
liability for an act which ordinary human care and foresight
could not guard against. It is also a general principle of the
same law that a loss from any cause purely accidental must rest
where it chances to fall. But behind and above these general
principles which the law recognizes as ordinarily prevailing,
there lies the legislative power, which, in the absence of organic
restraint, may for the general welfare of society, impose obliga-
tions and responsibilities otherwise non-existent.
Primarily, governments exist for the maintenance of social
order. Hence it is that the obligation of the government to
396 CASES ON CONSTITUTIONAL LAW.
protect life, liberty and property against the conduct of the in-
different, the careless and the evil-minded may be regarded as
lying at the very foundation of the social compact. A recogni-
tion of this supreme obligation is found in^ those exertions of the
legislative power which have as an end the preservation of social
order and the protection of the welfare of the public and of the
individual. If such legislation be reasonably adapted to the end
in view, affords a hearing before judgment, and is not forbidden
by some other affirmative provision of constitutional law, it is
not to be regarded as denying due process of law under the pro-
visions of the Fourteenth Amendment.
The law in question is a valid exercise of the police power of
the' State of Illinois. It rests upon the duty of the State to
protect its citizens in the enjoyment and possession of their
acquisitions, and is but a recognition of the obligation of the
State to preserve social order and the property of the citizen
against the violence of a riot or a mob.
The State is the creator of subordinate municipal governments.
It vests in them the police powers essential to the preservation
of law and order. It imposes upon them the duty of protecting
property situated within their limits from the violence of such
public breaches of the peace as are mobs and riots. This duty
and obligation thus entrusted to the local subordinate govern-
ment is by this enactment emphasized and enforced by imposing
upon the local community absolute liability for property losses
resulting from the violence of such public tumults.
The policy of imposing liability upon a civil subdivision of
government exercising delegated police power is familiar to every
student of the common law. We find it recognized in the begin-
ning of the police system of Anglo-Saxon people. Thus, "The
Hundred," a very early form of civil subdivision, was held
answerable for robberies committed within the division. By a
series of statutes, beginning possibly in 1285, in the statutes of
Winchester, 13 Edw. I, e. 1, coming on down to the 27th Eliza-
beth, c. 13, the Riot Act of George I (1 Geo. I, St. 2) and Act of
8 George II, e. 16, we may find a continuous recognition of the
principle that a civil subdivision entrusted with the duty of
protecting property in its midst and with police power to dis-
charge the function, may be made answerable not only for negli-
gence affirmatively shown, but absolutely as not having afforded
a protection adequate to the obligation. Statutes of a similar
character have been enacted by several of the States and held
CITY OP CHICAGO v. STUEGES. 397
valid exertions of the police power. Darlington v. Mayor, etc.,
of New York, 31 N. Y. 164 ; Pauvia v. New Orleans, 20 La. Ann.
410 ; County of Allegheny v. Gibson, etc., 90 Pa. St. 397. The
imposition of absolute liability upon the community when prop-
erty is destroyed through the violence of a mob is not, therefore,
an unusual police regulation. Neither is it arbitrary, as not
resting upon reasonable grounds of policy. Such a regulation has
a tendency to deter the lawless, since the sufferer must be com-
pensated by a tax burden which will fall upon all property,
including that of the evildoers as members of the community.
It is likewise calculated to stimulate the exertions of the indif-
ferent and the law-abiding to avoid the falling of a burden which
they must share with the lawless. In that it directly operates on
and affects public opinion, it tends strongly to the upholding of
the empire of the law.
There remains the contention that the act discriminates be-
tween cities and villages or other iiieorporated towns.
The liability is imposed upon the city if the property be within
the limits of a city ; if not, then upon the county. The classifica-
tion is not an unreasonable one. A city is presumptively the
more populous and better organized community. As such it may
well be singled out and made exclusively responsible for the con-
sequence of riots and mobs to property therein.
The county, which includes the city and other incorporated
subdivisions, is, not unreasonably, made liable to all sufferers
whose property is not within the limits of a city.
The power of the State to impose liability for damage and
injury to property from riots and mobs includes the power to
make a classification of the subordinate municipalities upon
which the responsibility may be imposed. It is a matter for the
exercise of legislative discretion, and the equal protection of the
law is not denied where the classification is not so unreasonable
or extravagant as to be a mere arbitrary mandate.
The cases upon this subject are so numerous as to need no
further elucidation.
Among the later cases are "Williams v. Arkansas, 217 U. S. 79 ;
Watson V. Maryland, 218 U. S. 173 ; Chicago, B. & Q. R. R. Co.
v. McGuire, 219 U. S. 549 ; House v. Mayes, 219 U. S. 270.
Judgment affirmed.
398 CASES ON CONSTITUTIONAL LAW.
BAERETT, PRESIDENT OP ADAMS EXPRESS CO. v.
CITY OF NEW YORK.
CITY OP NEW YORK v. BARRETT, PRESIDENT OP
ADAMS EXPRESS CO.
Supreme Coukt of the United States. 1914.
232 U. S. 14; 58 Lawyers' Ed. 483.
Appeal and cross-appeal from the Circuit Court of the United
States for the Southern District of New York.'
Me. Justice Hughes delivered the' opinion of the court.
This suit was brought to restrain the enforcement against the
Adams Express Company of a group of ordinances of the Board
of Aldermen of the City of New York, upon the ground that, as
applied to that company, these ordinances constitute an uncon-
stitutional interference with interstate commerce and deny to it
the equal protection of the laws. The ordinances are contained
in Chapter 7 of the Code of Ordinances adopted in the year
1906, as amended. . . .
The chapter relates to specified businesses in which no one is
permitted to engage except under an annual license granted by
the Mayor and revocable by him. Among these is the business
of "expressmen" (§§ 305, 306). It is provided that no person
is to be licensed "except a citizen of the United States or one
who has regularly declared intention to become a citizen"
(§ 307). The license fee is "for each express wagon," five dol-
lars, and "for each driver of any licensed vehicle," fifty cents,
with provision for renewal at one-half these rates ( § 308 ) . Every
person driving a licensed "express" is to be "licensed as such
driver, and every application for such license shall be indorsed,
in writing, by two reputable residents of The City of New York
testifjdng to the competence of the applicant" (§ 315). Every
vehicle "kept or used for the conveyance of baggage, packages,
parcels, and other articles within or through The City of New
York for pay" is to be deemed a public express (§ 330). It is to
bear a designation according with its ofBcial number (§331).
Its owner is to give a bond to the State for ' ' every vehicle licensed
in a penal sum of $100, with sufficient surety, approved by the
Mayor or Chief of the Bureau of Licenses, conditioned for the
safe and prompt delivery" of all articles (§ 332). Provision is
also made for the regular inspection of ' ' all licensed vehicles and
places of business" (§ 374), the report of any change of resi-
dence to the Bureau of License's (id.), the exhibition of licenses
ADAMS EXPRESS CO. v. NEW YORK. 399
upon demand (§375), and the display of the prescribed letters
and numbers (§376). Penalties are provided for the violation
of these requirements, and any person carrying on any business
regulated by the ordinance, without license, is guilty of a mis-
demeanor (§§ 307, 315, 379).
The Adams Express Company, an unincorporated association
organized under the laws of New York, has been engaged in inter-
state commerce, as a common carrier of packages, since the year
1854. It transacts its business in many States; and in the City
of New York it handles daily about 50,000 interstate shipments,
employing 341 wagons and 68 automobiles. About one-half of
these wagons are stabled in Jersey City. . . . The inter-
state business, however, in the number of packages, comprises
ninety-eight per cent of the total business transacted in New
York City, and, it being impracticable to effect a separation, the
local and the other intrastate shipments are handled in the same
vehicles, and by the same men, that are employed in connection
with the interstate transportation. It was not until recently
that the City sought to compel the Company, in the transaction
of this business, to comply with its license ordinances, although
there have been ordinances requiring licenses for both express
wagons and their drivers for over fifty years. ... In the
fall of 1910, however, at a time when the business of the Com-
pany was interrupted by a strike of its drivers, and it was en-
deavoring to replace those who had stopped work, the City
through its officers undertook to enforce the ordinances with
respect to all the wagons and drivers of the Company, threaten-
ing to arrest unlicensed drivers of unlicensed wagons notwith-
standing they might be engaged in interstate transportation, and
to remove, if necessary, unlicensed wagons from the streets. This
was the occasion of the present suit.
The Circuit Court held that sections 305 and 306 were inop-
erative so far as they purported to require the complainant to
obtain a local license for transacting its interstate business, and
further, that the requirement of licenses as to express automo-
biles and chauffeurs had been superseded by a state statute
(Laws of 1910, c. 374). To this extent the City, and its officers
who were codefendants, were enjoined. But with respect to the
payment of license fees for express wagons and drivers, and
the other regulations which we have briefly described, the court
held that the enactments were valid and an injunction was re-
fused. 189 Fed. Rep. 268, Both parties appeal, the Company
400 CASES ON CONSTITUTIONAL LAW. .
insisting tliat it was entitled to the entire relief sought, and the
City, that no relief whatever should have been granted.
In restraining the enforcement of sections 305 and 306, as
stated, we think that the court was right. ... If the above-
mentioned sections are to be deemed to require that a license
must be obtained as a condition precedent to conducting the
interstate business of an express company, we are of the opinion
that, so construed, they would be clearly unconstitutional. It is
insisted that, under the authority of the State, the ordinances
were adopted in the exercise of the police power. But that does
not justify the imposition of a direct burden upon interstate
commerce. Undoubtedly, the exertion of the power essential to
assure needed protection to the community may extend inciden-
tally to the operations of a carrier in its interstate business, pro-
vided it does not subject that business to unreasonable demands
and is not opposed to Federal legislation. Smith v. Alabama,
124 U. S. 465 ; Hennington v. Georgia, 163 U. S. 299 ; N. Y., N.
H. & H. E. R. Co. V. New York, 165 U. S. 628 ; Lake Shore &
M. S. Ey. Co. V. Ohio, 173 U. S. 285. It must, however, be con-
fined to matters which are appropriately of local concern. It
must proceed upon the recognition of the right secured by the
Federal Constitution. Local police regulations cannot go so far as
to deny the right to engage in interstate' commerce, or to treat it
as a local privilege and prohibit its exercise in the absence of a
local license. Cruteher v. Kentucky, 141 U. S. 47, 58 ; Eobbins v.
Taxing Dist, 120 U. S. 489, 496 ; Leloup v. Mobile, 127 U. S. 640,
645 ; Stoutenburgh v. Hennick, 129 U. S. 141, 148 ; Eearick v.
Pennsylvania, 203 U. S. 507; International Text Book Co. v.
Pigg, 217 U. S. 91, 109; Oklahoma v. Kansas Natural Gas
Co., 221 U. S. 229, 260 ; Buck Stove & Eange Co. v. Vickers, 226
U. S. 205, 215 ; Crenshaw v. Arkansas, 227 U. S. 389 ; Minnesota
Eate Cases, 230 U. S. 352, 401. As was said by this court in
Cruteher v. Kentucky, 141 U. S. p. 58, "a state law is unconsti-
tutional and void which requires a party to take out a license for
carrying on interstate commerce, no matter how specious the
pretext may be for imposing it. ' '
The requirements of sections 305 and 306, with the schedule
of fees in section 308, cannot be regarded as imposing a fee,
or tax, for the use of the streets ; if they were such, the question
would at once arise as to the validity of the discrimination
involved in such an exaction. Nor can they be considered as a
regulation in the interest of safety in street traffic. Other ordi-
nances provide for the "rules of the road" to which wagons of
ADAMS EXPRESS CO. v. NEW YORK. 401
express companies, as well as those of other persons, are subject
(Code of Ordinances, c. 12). The sections now under consider-
ation constitute a regulation of the express "business." Article
I is entitled, "Business Requiring a License;" section 305, con-
taining the enumeration, provides that ' ' the following businesses
must be duly licensed;" and section 306 that "no person shall
engage in or carry on any such business without a license there-
for" under a stated penalty. . . . The right of public con-
trol, in requiring such a license, is asserted by virtue of the char-
acter of the employment, but while such a requirement may be
proper in the case of local or intrastate business, it cannot be
justified as a prerequisite to the conduct of the business that is
interstate. Not only is the latter protected from the action of
the State, either directly or through its municipalities, in laying
direct burdens upon it, but, in the present instance. Congress
has exercised its authority and has provided its own scheme of
regulation in order to secure the discharge of the public obliga-
tions that the business involves. Act of June 29, 1906, c. 3591,
34 Stat. 584; Adams Express Co. v. Croninger, 226 U. S. 491,
505 ; United States v. Adams Express Co., 229 U. S. 381.
It would seem to follow, necessarily, that the annual license'
fees prescribed by section 308 . . . cannot be exacted, so
far as the interstate business is concerned. They cannot be
regarded as coming within the category of inspection fees, which
are sustained when fairly commensurate vnth the cost of local
supervision of such matters as are under local control. ("Western
Union Tel. Co. v. New Hope, 187 U. S. 419, 425 ; Atlantic, etc.,
Tel. Co. V. Philadelphia, 190 U. S. 160, 164.) The provisions of
section 808 are inseparably connected with those of sections 305
and 306. The sums fixed "for each express wagon" and "for
each driver" measure the amount to be exacted for the granting
of the license required for the carrying on of business. And it is
difficult to see how the payment can be enforced as to the inter-
state business if the taking out of the license therefor cannot be
compelled.
Similar considerations are controlling with respect to the pro-
vision of section 332 for the giving of license bonds. This in
terms is related to the requirement of section 305. It is provided
that a bond shall be given "for each ajid every vehicle licensed"
and it is to be conditioned "for the safe and prompt delivery of
all baggage, packages," etc., entrusted to the owner or driver
"of any such licensed express." As applied to the Company's
business of interstate transportation, it must fall with the pro-
E. C. L.— 26
402 CASES ON CONSTITUTIONAL LAW.
vision regarding the license, and, further, it must be regarded
as repugnant to the exclusive control asserted by Congress in
occupying the field of regulation with regard to the obligations
to be assumed by interstate express carriers. (Adams Express
Co. V. Croninger, supra; Southern Ry. Co. v. Reid, 222 U. S.
424; Same v. Reid & Beam, id., 444, 447.)
Section 315 provides for separate licenses for drivers. We
may assume the propriety of suitable provision to insure careful
driving over the city streets and the existence of ample power to
meet this local necessity. It is also clear that regulations for this
purpose, when the movement of interstate traffic is involved,
should be entirely reasonable and should not arbitrarily restrict
the facilities upon which it must depend. If the provision of
section 315 could be regarded as severable from the requirement
of a license for the conduct of business, we should still have great
difficulty in sustaining it as a reasonable regulation with regard
to drivers employed in the interstate transportation which has
been described. Reading section 315 in connection with section
307, as we understand the City contends it should be read, no
driver can be licensed except a citizen of the United States or
one who has regularly declared intention to become a citizen, and
the assurance of his qualifications does not depend simply upon
the applicant's ability to meet appropriate tests so as to satisfy
the official judgment, but the application must be accompanied
by the indorsement in writing of two reputable residents of the
city testifying to his competence. When the importance to the
entire country of promptness and facility in the conduct of the
business of the express companies in New York City, and the
obvious convenience of their being able to secure drivers in Jer-
sey City as well as in New York, are considered, the provision
would seem to be unnecessarily burdensome. We are not called
upon, however, to decide this point. Section 315 relates exclu-
sively to drivers of a "licensed hack or express." There is no
such provision as to drivers of wagons generally. While the
driver's license is separate, the ordinance refers only to such
drivers as are employed in the business for the carrying on of
which a license may be required. Whatever might otherwise be
the City's power as to the regulation of drivers, this provision
cannot be divorced from the license scheme of which it is a
part. .
We conclude that the complainant was entitled to an injunction
restraining the' enforcement of the ordinances in question against
the Company with respect to the conduct of its interstate business
ATLANTIC COAST LINE RY. CO. v. GEORGIA. 403
and its wagons and drivers employed in interstate commerce.
In this view it is unnecessary to consider whether the ordinances
have been superseded, as to automobiles, by the state statute.
The decree of the Circuit Court is reversed and the case is
remanded to the District Court, with direction to enter a decree
in favor of the complainant in conformity with this opinion.
It is so ordered.
ATLANTIC COAST LINE RAILROAD COMPANY v. STATE
OP GEORGIA.
Supreme Court of the United States. 1914.
234 U. S. 280; 58 Lawyers' Ed. 1312.
Error to the Court of Appeals of the State of Georgia.
Me. Justice Hughes delivered the opinion of the court.
The Atlantic Coast Line Railroad Company, the plaintiff in
error, was convicted of violating a statute of the State of Georgia
known as the "headlight law." Pub. Laws (Ga.), 1908, pp. 50,
51; Civil Code, §§ 2697, 2698. In defense it was insisted that
the act contravened the commerce clause and the Fourteenth
Amendment of the Constitution of the United States. . . .
The material portions of the statute are as follows :
"Section 1. Be it enacted by the General Assembly of Geor-
gia, and it is hereby enacted by authority of the same. That all
railroad companies are hereby required to equip and maintain
each and every locomotive used by such company to run on its
main line after dark with a good and sufficient headlight which
shall consume not less than three hundred watts at the arc, and
with a reflector not less than twenty-three inches in diameter,
and to keep the same in good condition. The word main line as
used herein means all portions of the railway line not used solely
as yards, spurs, and side tracks. " .
The contention is made that this act deprives the company of
its liberty of contract, and of its property, vsdthout due process
of law. It compels the disuse of a material part of the company's
present equipment and the substitution of a new appliance. The
use of locomotive headlights, however, is directly related to
safety in operation. It cannot be denied that the protective
power of government, subject to which the carrier conducts its
business and manages its property, extends as well to the regu-
404 CASES ON CONSTITUTIONAL LAW.
lation of this part of the carrier's equipment as to apparatus
for heating cars or to automatic couplers. The legislature may
require an adequate headlight, and whether the carrier's practice
is properly conducive to safety, or a new method affording
greater protection should be substituted, is a matter for the legis-
lative judgment. But it is insisted that the legislature has gone
beyond the limits of its authority in making the specific require-
ments contained in the act as to the character and power of the
light and the dimensions of the reflector. This argument ignores
the established principle that if its action is not arbitrary — ^is
reasonably related to a proper purpose — the legislature may
select the means which it deems to be appropriate to the end to
be achieved. It is not bound to content itself with general direc-
tions when it considers that more detailed measures are neces-
sary to attain a legitimate object. Particularization has had
many familiar illustrations in cases where there has been a con-
viction of the need of it, as, for example, in building regulations
and in provisions for safeguarding persons in the use of danger-
ous machinery. So far as governmental power is concerned, we
know of no ground for an exception in the case of a locomotive
headlight.
It cannot be said that the legislature acted arbitrarily in pre-
scribing electric light, in preference to others, or that, having
made this selection, it was not entitled to impose minimum
requirements to be observed in the use of the light. .
Assuming that there is room for differences of opinion, this fact
does not preclude the exercise of the legislative discretion. So
far as the question was one simply of expediency — as to the best
method to provide the desired security — it was within the com-
petency of the legislature to decide it. N. Y. & N. E. R. E. Co.
V. Bristol, 151 U. S. 556, 571 ; C. B. & Q. Ry. Co. v. Drainage
Com'rs, 200 U. S. 561, 583, 584; McLean v. Arkansas, 211 U. S.
539, 547, 548 ; C. B. & Q. Ry. Co. v. McGuire, 219 U. S. 549, 568,
569, and cases there cited. . . .
We conclude that there is no valid objection to the statute
upon the ground that it deprives the carrier of liberty or prop-
erty without due process of law. .
Finally, it is urged that the statute constitutes an unwarrant-
able interference with interstate commerce. The locomotive,
with respect to which the accusation was made, was at the time
being regularly used in the hauling of interstate freight trains
over the company's main line of railroad and was equipped
with an oil headlight. The statute, as the Supreme Court of the
ATLANTIC COAST LINE RY. CO. v. GEORGIA. 405
State said, was not directed against interstate eommerce, but it
was held that it incidentally applied to locomotives used in haul-
ing interstate trains while these were moving on the main line
in the State of Georgia. This being so, the act is said to be
repugnant to the exclusive power of Congress. It is argued that
if Georgia may prescribe an electric headlight, other States
through which the road runs may require headlights of a dif-
ferent sort; that, for example, some may demand the use of
acetylene, and that others may require oil; and that, if state
requirements conflict, it will be necessary to carry additional
apparatus and to make various adjustments at state lines which
would delay and inconvenience interstate traffic.
The argument is substantially the same as that which was
strongly presented to the court in New York, New Haven &
Hartford R. R. Co. v. New York, 165 U. S. 628, where the plain-
tiff in error was held subject to penalty for the violation of a
New York statute which in substance made it unlawful for any
steam railroad doing business in that State to heat its passenger
cars, on any other than mixed trains, by any stove or furnace
kept inside of the car or suspended therefrom. The railroad
company was a Connecticut corporation having but a few miles
of road within the State of New York and operating through
trains from New York through Connecticut to Massachusetts.
As this court said in its opinion, the argument was made that "a
conflict between state regulations in respect of the heating of
passenger cars used in interstate commerce would make safe and
rapid transportation impossible ; that to stop an express train on
its trip from New York to Boston at the Connecticut line in order
that passengers may leave the cars heated as required by New
York, and get into other cars heated in a different mode in con-
formity with the laws of Connecticut, and then at the Massachu-
setts line to get into cars heated by still another mode as required
by the laws of that Commonwealth, would be a hardship on
travel that could not be endured." But the court ruled that
these "possible inconveniences" could not affect "the question
of power in each State to make such reasonable regulations for
the safety of passengers on interstate trains as, in its judgment,
all things considered, is appropriate and effective." 165 U. S.
632, 633.
In thus deciding, the court applied the se,ttled principle that,
in the absence of legislation by Congress, the States are not
denied the exercise of their power to secure safety in the physical
operation of railroad trains within their territory, even though
406 CASES ON CONSTITUTIONAL LAW.
such trains are used in interstate commerce. That has been the
law since the beginning of railroad transportation. It was not
intended that, pending Federal action, the use of such agencies,
which, unless carefully guarded, was fraught with danger to the
community, should go unregulated, and that the States should
be without authority to secure needed local protection. The
requirements of a State, of course, must not be arbitrary or pass
beyond the limits of a fair judgment as to what the exigency
demands, but they are not invalid because another State, in the
exercise of a similar power, may n,ot impose the same regula-
tion. We may repeat what was said in Smith v. Alabama, 124
U. S. 465, 481, 482: "It is to be remembered that railroads
are not natural highways of trade and commerce. . . . The
places where they may be located, and the plans according to
which they must be constructed, are prescribed by the legisla-
tion of the State. Their operation requires the use of instru-
ments and agencies attended with special risks and dangers, the
proper management of which involves peculiar knowledge, train-
ing, skill, and care. The safety of the public in person and
property demands the use of specific guards and precautions.
. . . The rules prescribed for their construction and for
their management and operation, designed to protect persons
and property, otherwise endangered by their use, are strictly
within the limits of the local law. They are not per se regula-
tions of commerce; it is only when they operate as such in the
circumstances of their application, and conflict with the expressed
or presumed will of Congress exerted on the same subject, that
they can be required to give way to the supreme authority of
the Constitution." See also Nashville, etc., Rwy. Co. v. Ala-
bama, 128 U. S. 96 ; Hennington v. Georgia, 163 U. S. 299 ; N. Y.,
N. H. & H. R. R. Co. V. New York, supra; Lake Shore & M. S.
Rwy. Co. V. Ohio, 173 U. S. 285 ; Missouri Pacific Rwy. Co. v.
Larabee Mills, 211 U. S. 612 ; Missouri Pacific Rwy. Co. v. Kan-
sas, 216 U. S. 262 ; Chicago, R. I. & Pacific Rwy. Co. v. Arkansas,
219 U. S. 453 ; Minnesota Rate Cases, 230 U. S. 352, 402, 410.
If there is a conflict in such local regulations, by which inter-
state commerce may be inconvenienced — if there appears to be
need of standardization of safety appliances and of providing
rules of operation which will govern the entire interstate road
irrespective of state boundaries — there is a simple remedy ; and
it cannot be assumed that it will not be readily applied if there
be real occasion for it. That remedy does not rest in a denial
to the State, in the absence of conflicting Federal action, of its
PLUMLEY V. MASSACHUSETTS. 407
power to protect life and property within its borders, but it does
lie in the exercise of the paramount authority of Congress in its
control of interstate commerce to establish such regulations as
in its judgment may be deemed appropriate and sufficient. Con-
gress, when it pleases, may give the rule and make the standard
to be observed on the interstate highway. . . .
The judgment is affirmed. Affirmed.
Note. — As to regulations for the preservation of safety and order, see
Wabash Ry. v. Defiance (1897), 167 TJ. S. 88 (street grades at railway
crossings); Laclede Gas Light Co. v. Murphy (1898), 170 U. S. 78 (placing
of electric light wires) ; Minnesota Iron Co. v. Kline (1905), 199 U. S. 593
(abrogation of fellow-servant rule among railway employees) ; Chicago, Mil-
waukee & St. Paul Ey. v. Minneapolis (1914), 232 U. S. 430 (railway to
build bridge over its right of way at its own expense) ; Plymouth Coal Co.
V. Pennsylvania (1914), 232 U. S. 531 (regulation of working of coal
mines); Atlantic Coast Line Ey. v. G-oldsboro (1914), 232 U. S. 548 (ordi-
nances regulating operation of railway trains within city limits) ; Hendrick
v. Maryland (1915), 235 U. S. 610 (regulation of motor vehicles).
Section 4. The Promotion op the General "Welfare.
PLUMLEY V. MASSACHUSETTS.
Supreme Court or the United States. 1894.
155 U. S. 461; 39 Lawyers' Ed. 223.
Error to the Supreme Judicial Court of the Commonwealth of
Massachusetts.
[The State of Massachusetts enacted a law entitled "An act
to prevent deception in the manufacture and sale of imitation
butter," which forbade the manufacture or sale of "any article,
product or compound made wholly or partly out of any fat, oil
or oleaginous substance or compound thereof, not produced from
unadulterated milk or cream from the same, which shall be in
imitation of yellow butter produced from pure unadulterated
milk or cream of the same," but "nothing in this act shall be
construed to prohibit the manufacture or sale of oleomargarine
in a separate and distinct form, and in such a manner as will
advise the consumer of its real character, free from coloration
or ingredient that causes it to look like butter." The plaintiff
in error was convicted in the Municipal Court of Boston of hav-
408 CASES ON CONSTITUTIONAL LAW.
ing sold oleomargarine colored in imitation of butter, contrary
to the provisions of the statute just cited. That conviction was
sustained by the Supreme Judicial Court of Massachusetts (156
Mass. 236).]
Mr. Justice Haelan delivered the opinion of the court. . . .
The vital question in this case is, . . . whether, as con-
tended by the petitioner, the statute under examination in its
application, to sales of oleomargarine brought into Massachusetts
from other States is in conflict with the clause of the Constitu-
tion of the United States investing Congress with the power to
regulate commerce among the several States. . . .
It will be observed that the statute of Massachusetts which is
alleged to be repugnant to the commerce clause of the Constitu-
tion does not prohibit the manufacture or sale of all oleomar-
garine, but only such as is colored in imitation of yellow butter
produced from pure unadulterated milk or cream of such milk.
If free from coloration or ingredient that "causes it to look like
butter," the right to sell it "in a separate and distinct form,
and in such manner as will advise the consumer of its real char-
acter," is neither restricted nor prohibited. It appears, in this
case, that oleomargarine, in its natural condition, is of "a light
yellowish color," and that the article sold by the accused was
artificially colored "in imitation of yellow butter." Now, the
real object of coloring oleomargarine so as to make it look like
genuine butter is that it may appear to be what it is not, and thus
induce unwary purchasers who do not closely scrutinize the label
upon the package in which it is contained, to buy it as and for
butter produced from unadulterated milk or cream from such
milk. The suggestion that oleomargarine is artificially colored
so as to render it more palatable and attractive can only mean
that customers are deluded, by such coloration, into believing
that they are getting genuine butter. If any one thinks that
oleomargarine, not artificially colored so as to cause it to look
like butter, is as palatable or as wholesome for purposes of food
as pure butter, he is, as already observed, at liberty under the
statute of Massachusetts to manufacture it in that State or to
sell it there in such a manner as to inform the customer of its
real character. He is only forbidden to practice, in such mat-
ters, a fraud upon the general public. The statute seeks to sup-
press false pretenses and to promote fair dealing in the sale of
an article of food. It compels the sale of oleomargarine for what
it really is, by preventing its sale for what it is not. Can it be
PLUMLEY V. MASSACHUSETTS. 409
that the Constitution of the United States secures to any one the
privilege of manufacturing an article of food in such a manner
as to induce the mass of people to believe that they are buying
something which, in fact, is wholly different from that which is
offered for sale? Does the freedom of commerce among the
States demand a recognition of the right to practice a deception
upon the public in the sale of any articles, even those that may
have become the subject of trade in different parts of the country ?
If there be any subject over which it would seem the States
ought to have plenary control, and the power to legislate in re-
spect to which it ought not to be supposed was intended to be
surrendered to the general government, it is the protection of
the people against fraud and deception in the sale of food prod-
ucts. Such legislation may, indeed, indirectly or incidentally
affect trade in such products transported from one State to
another State. But that circumstance does not show that laws
of the character alluded to are inconsistent with the power of
Congress to regulate commerce among the States. For, as said
by this court in Sherlock v. Ailing, 93 U. S. 99, 103: "In con-
ferring upon Congress the regulation of commerce, it was never
intended to cut the States off from' legislating on all subjects
relating to the health, life, and safety of their citizens, though
the legislation might indirectly affect the commerce of the coun-
try. Legislation, in a great variety of ways, may affect commerce
and persons engaged in it without constituting a regulation of
it within the meaning of the Constitution. "...
But the case most relied on by the petitioner to support the
proposition that oleomargarine, being a recognized article of
commerce, may be introduced into a State and there sold in
original packages, without any restriction being imposed by the
State upon such sale, is Leisy v. Hardin, 135 U. S. 100. . . .
It is sufficient to say of Leisy v. Hardin that it did not in form
or in substance present the particular question now under con-
sideration. The article which the majority of the court in that
case held could be sold in Iowa in original packages, the statute
of the State to the contrary notwithstanding, was beer manu-
factured in Illinois and shipped to the former State to be there
sold in such packages. So far as the record disclosed, and so
far as the contentions of the parties were concerned, the article
there in question was what it appeared to be, namely, genuine
beer, and not a liquid or drink colored artificially so as to cause
it to look like beer. . . .
410 CASES ON CONSTITUTIONAL LAW.
We are of opinion that it is within the power of a State to
exclude from its markets any compound manufactured in an-
other State, which has been artificially colored or adulterated
so as to cause it to look like an article of food in general use, and
the sale of which may, by reason of such coloration or adultera-
tion, cheat the general public into purchasing that which they
may not intend to buy. The Constitution of the United States
does not secure to any one the privilege of defrauding the public.
The deception against which the statute of_ Massachusetts is
aimed is an offense against society; and the States are as com-
petent to protect their people against such offenses or wrongs as
they are to protect them against crimes or wrongs of more seri-
ous character. And this protection may be given without vio-
lating any right secured by the national Constitution, and with-
out infringing the authority of the general government. A
State enactment forbidding the sale of deceitful imitations of
articles of food in general use among the people does not abridge
any privilege secured to citizens of the United States, nor, in
any just sense, interfere with the freedom of commerce among
the several States. It is legislation which "can be most advan-
tageously exercised by the States themselves." Gibbons v. Og-
den, Wheat. 1, 203. . . . Judgment affirmed.
Mr. Justice Fuller, with whom concurred Mr. Justice Field
and Mr. Justice Brewer, dissenting. . . .
SLIGH V. KIRKWOOD, SHERIFF OF ORANGE COUNTY,
FLORIDA.
SUPKEME Court op the United States. 1915.
237 U. S. 52; 59 Lawyers' Ed. — .
Error to the Supreme Court of the State of Florida.
Mr. Justice Day delivered the opinion of the court.
A statute of the State of Florida undertakes to make it unlaw-
ful for anyone to sell, offer for sale, ship, or deliver for ship-
ment, any citrus fruits which are immature or otherwise unfit
for consumption.
Plaintiff in error, S. J. Sligh, was charged by information
containing three counts in the Criminal Court of Record in
Orange County, Florida, with violation of this statute. One
SLIGH V. KIEKWOOD. 411
of the counts charged that Sligh delivered to an agent of the
Seaboard Air Line Railway Company, a common carrier, for
shipment to Winecoff & Adams, Birmingham, Alabama, one car
of oranges, which were citrus fruits, then and there immature
and unfit for consumption. . . .
The single question is: Was it within the authority of the
State of Florida to make it a criminal offense to deliver for ship-
ment in interstate commerce citrus fruits, — oranges in this case,
— then and there immature and unfit for consumption ?
It will be observed that the oranges must not only be imma-
ture, but they must be in such condition as renders them unfit
for consumption ; that is, giving the words their ordinary signi-
fication, unfit to be used for food. Of course, fruits of this char-
acter, in that condition, may be deleterious to the public health,
and, in the public interest, it may be highly desirable to pre-
vent their shipment and sale. Not disputing this, the contention
of the plaintiff in error is that the statute contravenes the Fed-
eral Constitution in that the legislature has undertaken to pass
a law beyond the power of the State, because of the exclusive
control of Congress over commerce among the States, under the
Federal Constitution.
That Congress has the exclusive power to regulate interstate
commerce is beyond question. . . .
While this proposition seems to be conceded, and the com-
petency of the State to provide local measures in the interest of
the safety and welfare of the people is not doubted, although
such regulations incidentally and indirectly involve interstate
commerce, the contention is that this statute is not a legitimate
exercise of the police power, as it has the effect to protect the
health of people in other States who may receive the fruits from
Florida in a condition unfit for consumption ; and however com-
mendable it may be to protect the health of such foreign peoples,
such purpose is not within the police power of the State.
The limitations upon the police power are hard to define, and
its far-reaching scope has been recognized in many decisions of
this court. At an early day it was held to embrace every law or
statute which concerns the whole or any part of the people,
whether it related to their rights or duties, whether it respected
them as men or citizens of the State, whether in their public or
private relations, whether it related to the rights of persons or
property of the public or any individual within the State. New
York V. Miln, 11 Pet. 102, 139. The police power, in its broadest
sense, includes all legislation and almost every function of civil
412 CASES ON CONSTITUTIONAL LAW.
government. Barbier v. Connolly, 113 U. S. 27. It is not sub-
ject to definite limitations, but is eo-extensive with the necessi-
ties of the case and the safeguards of public interest. Camfield
V. United States, 167 U. S. 518, 524. It embraces regulations de-
signed to promote public convenience or the general prosperity
or welfare, as well as those specifically intended to promote the
public safety or the public health. Chicago etc., Railway v.
Drainage Commissioners, 200 U. S. 561, 592. In one of the
latest utterances of this court upon the subject, it was said:
"Whether it is a valid exercise of the police power is a ques-
tion in the case, and that power we have defined, as far as it is
capable of being defined by general words, a number of times.
It is not susceptible of circumstantial precision. It extends, we
have said, not only to regulations which promote the public
health, morals, and safety, but to those which promote the pub-
lic convenience or the general prosperity. . . . And further,
'It is the most essential of powers, at times the most insistent,
and always one of the least limitable of the powers of govern-
ment.' " Eubank v. Richmond, 226 U. S. 137, 142.
The power of the State to prescribe regulations which shall
prevent the production within its borders of impure foods, un-
fit for use, and such articles as would spread disease and pesti-
lence, is well established. ...
Nor does it make any difference that such regulations inci-
dentally affect interstate commerce, when the object of the regu-
lation is not to that end, but is a legitimate attempt to protect
the people of the State. . . .
Furthermore, this regulation cannot be declared invalid if
within the range of the police power, unless it can be said that it
has no reasonable relation to a legitimate purpose to be ac-
complished in its enactment; and whether such regulation is
necessary in the public interest is primarily within the deter-
mination of the legislature, assuming the subject to be a proper
matter of state regulation.
We may take judicial notice of the fact that the raising of
citrus fruits is one of the great industries of the State of Florida.
It was competent for the legislature to find that it was essential
for the success of that industry that its reputation be preserved
in other States wherein such fruits find their most extensive
market. The shipment of fruits, so immature as to be unfit for
consumption, and consequently injurious to the health of the
purchaser, would not be otherwise than a serious injury to the
local trade, and would certainly affect the successful conduct of
MUNN V. ILLINOIS. 413
such business within the State. The protection of the State's
reputation in foreign markets, with the consequent beneficial
effect upon a great home industry, may have been within the
legislative intent and it certainly could not be said that this
legislation has no reasonable relation to the accomplishment of
that purpose. . . .
"We find no error in the judgment of the Supreme Court of
Florida, and it is Affirmed.
Note. — For police regulations for the promotion of the public conven-
ience or general welfare, see Dent v. West Vii'ginia (1889), 129 U. S. 114
(requiring licenses for physicians); Miller v. Texas (1894), 153 IT. S. 535
(regulating the carrying of concealed weapons) ; Davis v. Massachusetts
(1897), 167 U. S. 43 (requiring a license to speak in a public place) ; Wil-
son V. Eureka City (1899), 173 U. S. 32 (regulating the moving of build-
ings on public streets) ; Lake Shore & Michigan Southern Ky. v. Ohio
(1899), 173 U. S. 285 (requiring three trains per day to stop at certain
stations); Ohio Oil Co. v. Indiana (1900), 177 TJ. S. 190 (prohibiting waste
of natural gas) ; Chicago, Burlington & Quincy Ky. v. Drainage Commis-
sioners (1906), 200 U. S. 561 (removal of railway bridges in order to per-
mit drainage of land); Bacon v. Walker (1907), 204 TJ. 8. 311 (regulating
the grazing of public lands) ; Western Turf Association v. Greenberger
(1907), 204 U. S. 359 (admission of ticket-holders to public places of
amusement) ; McLean v. Arkansas (1909), 211 U. S. 539 (method of payment
of coal-miners); Welch v. Swasey (1909), 214 U. S. 91 (restricting height
of buildings); Griffith v. Connecticut (1910), 218 TJ. S. 563 (loans at in-
terest of more than 15 per cent) ; Noble State Bank v. HaskeU (1911), 219
TJ. S. 104 (creation of fund for guaranty of bank deposits) ; Chicago, Bur-
lington & Quinoy Ey. v. McGuire (1911), 219 TJ. S. 549 (contracts by em-
ployees limiting liability for injuries in contravention of statute governing
such liability) ; Fifth Avenue Coach Co. v. New York (1911), 221 U. S. 467
(regulation of advertising on street vehicles) ; Mutual Loan Co. v. Martell
(1911), 222 TJ. S. 225 (regulating assignments of wages) ; Erie Ey. v.
Williams (1914), 233 TJ. S. 685 (semi-monthly payment of employees in
certain industries) ; Mutual Film Corporation v. Industrial Commission of
Ohio (1915), 236 TJ. S. 230 (censorship of moving picture films) ; Chicago &
Alton Ey. v. Tranbarger (1915), 238 TJ. S. 67 (railroads required to main-
tain outlets for water across their rights of way).
Section 5. The Regulation op Public Callings.
MUNN V. ILLINOIS.
Supreme Court of the United States. 1876.
94 U. S. 113; 24 Lawyers' Ed. 77.
Error to the Supreme Court of the State of Illinois. . . .
Mr. Chief Justice Waite delivered the opinion of the court.
The question to be determined in this case is whethet the gen-
414 CASES ON CONSTITUTIONAL LAW.
eral assembly of Illinois can, under the limitations upon the legis-
lative powers of the States imposed by the Constitution of the
United States, fix by law the maximum of charges for the storage
of grain in warehouses at Chicago and other places in the State
having not less than one hundred thousand inhabitants, "in
which grain is stored in bulk, and in which the grain of different
owners is mixed together, or in which grain is stored in such a
manner that the identity of different lots or parcels cannot be
accurately preserved."
It is claimed that such a law is repugnant —
1. To that part of sect. 8, art. I, of the Constitution of the
United States which confers upon Congress the power "to regu-
late commerce with foreign nations and among the several
States;"
2. To that part of sect. 9 of the same article, which provides
that "no preference shall be given by any regulation of commerce
or revenue to the ports of one State over those of another ; ' ' and
3. To that part of amendment 14 which ordains that no State
shall "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."
We will consider the last of these objections first. . . .
The Constitution contains no definition of the word "deprive,"
as used in the Fourteenth Amendment. To determine its signifi-
cation, therefore, it is necessary to ascertain the effect which
usage has given it, when employed in the same or a like con-
nection.
While this provision of the amendment is new in the Constitu-
tion of the United States, as a limitation upon the powers of the
States, it is old as a principle of civilized government. It is
found in Magna Charta, and, in substance if not in form, in
nearly or quite all the constitutions that have been from time to
time adopted by the several States of the Union. By the Fifth
Amendment, it was introduced into the Constitution of the
United States as a limitation upon the powers of the national
government, and by the Fourteenth, as a guaranty against any
encroachments upon an acknowledged right of citizenship by
the legislatures of the States.
When the people of the United Colonies separated from Great
Britain, they changed the form, but not the substance, of their
government. They retained for the purposes of government all
the powers of the British Parliament, and through their State
constitutions, or other forms of social compact, undertook to give
MUNN V. ILLINOIS. 415
practical effect to such as they deemed necessary for the common
good and the security -of life and property. All the powers which
they retained they committed to their respective States, unless in
express terms or by implications reserved to themselves. Subse-
quently, when it was found necessary to establish a national
government for national purposes, a part of the powers of the
States and of the people of the Stat«s was granted to the United
States and the people of the United States. This grant operated
as a further limitation upon the powers of the States, so that now
the governments of the States possess all the powers of the Parlia-
ment of England, except such as have been delegated to the
United States or reserved by the people. The reservations by
the people are shown in the prohibitions of the constitutions.
When one becomes a member of society, he necessarily parts
with some rights or privileges which, as an individual not
affected by his relations to others, he might retain. "A body
politic, ' ' as aptly defined in the preamble of the Constitution of
Massachusetts, "is a social compact by which the whole people
covenants with each citizen, and each citizen with the whole peo-
ple, that all shall be governed by certain laws for the common
good." This does not confer power upon the whole people to
control rights which are purely and exclusively private, Thorpe
v. E. & V. Eailroad Co., 27 Vt. 143 ; but it does authorize the es-
tablishment of laws requiring each citizen to so conduct himself,
and so use his own property, as not unnecessarily to injure an-
other. This is the very essence of government, and has found
expression in the maxim, sic utere tuo ut alienum non laedas.
From this source come the police powers, which, as was said by Mr.
Chief Justice Taney in the License Cases, 5 How. 583, ' ' are noth-
ing more or less than the powers of government inherent in every
sovereignty, . . . that is to say, . . . the power to gov-
ern men and things. ' ' Under these powers the government regu-
lates the conduct of its citizens one towards another, and the
manner in which each shall use his own property, when such
regulation becomes necessary for the public good. In their exer-
cise it has been customary in England from time immemorial,
and in this country from its first colonization, to regulate fer-
ries, common carriers, hackmen, bakers, millers, wharfingers, inn-
keepers, &c., and in so doing to fix a maximum of charge to be
made for services rendered, accommodations furnished, and arti-
cles sold. To this day, statutes are to be found in many of the
States upon some or all these subjects ; and we think it has never
yet been successfully contended that such legislation came within
416 CASES ON CONSTITUTIONAL LAW.
/any of the constitutional prohibitions against interference with
private property. With the Fifth Amendment in force, Congress
in 1820, conferred power upon the city of Washington "to regu-
late . . . the rates of wharfage at private wharves, . . .
the sweeping of chimneys, and to fix the rates of fees therefor,
. . . and the weight and quality of bread, " 3 Stat. 587, sect.
7; and, in 1848, "to make all necessary regulations respecting
hackney carriages and the rates of fare of the same, and the rates
of hauling by cartmen, wagoners, carmen, and draymen, and the
rates of commission of auctioneers, " 9 id. 224, sect. 2.
From this it is apparent that, down to the time of the adop-
tion of the Fourteenth Amendment, it was not supposed that
statutes regulating the use, or even the price of the use, of pri-
vate property necessarily deprived an owner of his property
without due process of law. Under some circumstances they may,
but not under all. The amendment does not change the law in
this particular: it simply prevents the States from doing that
which will operate as such a deprivation.
This brings us to inquire as to the principles upon which this
power of regulation rests, in order that we may determine what
is within and what is without its operative effect. Looking, then,
to the common law, from whence came the right which the Con-
stitution protects, we find that when private property is ' ' affected
with a public interest, it ceases to be juris privati only." This
was said by Lord Chief Justice Hale more than two hundred
years ago, in his treatise De Portibus Maris, 1 Harg. Law Tracts,
78, and has been accepted without objection as an essential ele-
ment in the law of property ever since. Property does become
clothed with a public interest when used in a manner to make it
of public consequence, and affect the community at large. When,
therefore, one devotes his property to a use in which the public
has an interest, he, in effect, grants to the public an interest in
that use, and must submit to be controlled by the public for the
common good, to the extent of the interest he has thus created. _
He may withdraw his grant by discontinuing the use; but, so
long as he maintains the use, he must submit to the control.
From the same source comes the power to regulate the charges
of common carriers, which was done in England as long ago.,
as the third year of the reign of William and Mary, and con-
tinued until within a comparatively recent period. And in the
first statute we find the following suggestive preamble, to wit : —
"And whereas divers wagoners and other carriers, by com-
MUNN V. ILLINOIS. 417
bination amongst themselves, have raised the prices of carriage
of goods in many places to excessive rates, to the great injury of
the trade: Be it, therefore, enacted," &c. 3 W. & M. c. 12,
§ 24; 3 Stat, at Large (Great Britain), 481.
Common carriers exercise a sort of public office, and have duties
to perform in which the public is interested. New Jersey Nav.
Co. V. Merchants' Bank, 6 How. 382. Their business is, there-
fore, "affected with a public interest," within the meaning of
the doctrine which Lord Hale has so forciby stated.
But we need not go further. Enough has already been said to
show that, when private property is devoted to a public use, it is
subject to public regulation. It remains only to ascertain whether
the warehouses of these plaintiffs in error, and the business which
is carried on there, come within the operation of this principle.
For this purpose we accept as true the statements of fact con-
tained in the elaborate brief of one of the counsel of the plaintiffs
in error. From these it appears that ' ' the great producing region
of the "West and North-west sends its grain by water and rail to
Chicago, where the greater part of it is shipped by vessel for
transportation to the seaboard by the Great Lakes, and some of
it is forwarded by railway to the Eastern ports. . . . Ves-
sels, to some extent, are loaded in the Chicago harbor, and sailed
through the St. Lawrence directly to Europe. . . . The
quantity [of grain] received in Chicago has made it the greatest
grain market in the world. This business has created a demand
for means by which the immense quantity of grain can be han-
dled or stored, and these have been found in grain warehouses,
which are commonly called elevators, because the grain is ele-
vated from the boat or car, by machinery operated by steam,
into the bins prepared for its reception, and elevated from the
bins, by a like process, into the vessel or car which is to carry
it on. . . . In this way the trade in grain is carried on by
f ' e inhabitants of seven or eight of the great States of the West
with four or five of the States lying on the sea-shore, and forms
the largest part of interstate commerce in these States. The grain
warehouses or elevators in Chicago are immense structures, hold-
ing from 300,000 to 1,000,000 bushels at one time, according td
size. They are divided into bins of large capacity and great
-'-ngth. . . . They are located with the river harbor on
one side and the railway tracks on the other ; and the grain is
run through them from car to vessel, or boat to car, as may be
demanded in the course of business. It has been found impossi-
ble to preserve each owner's grain separate, and this has given
E. C. L.— 27
418 CASES ON CONSTITUTIONAL LAW.
rise to a system of inspection and grading, by which the grain
of different owners is mixed, and receipts issued for the number
of bushels which are negotiable, and redeemable in like kind,
upon demand. This mode of conducting the business was inaug-
urated more than twenty years ago, and has grown to immense
proportions. The railways have found it impracticable to own
such elevators, and public policy forbids the transaction of
such business by the carrier; the ownership has, therefore, been
by private individuals, who have embarked their capital and de-
voted their industry to such business as a private pursuit."
In this connection it must also be borne in mind that, although
in 1874 there were in Chicago fourteen warehouses adapted to
this particular business, and owned by about thirty persons, nine
business firms controlled them, and that the prices charged and
received for storage were such ' ' as have been from year to year
agreed upon and established by the different elevators or ware-
houses in the city of Chicago, and which rates have been annually
published in one or more newspapers printed in said .city, in the
month of January in each year, as the established rates for the
year then next ensuing such publication." Thus it is apparent
that all the elevating facilities through which these vast produc-
tions "of seven or eight great States of the West" must pass on
the way "to four or five of the States on the sea-shore" may be
a "virtual" monopoly.
Under such circumstances it is difficult to see why, if the com-
mon carrier, or the miller, or the ferryman, or the innkeeper, or
the wharfinger, or the baker, or the eartman, or the hackney-
coachman, pursues a public employment and exercises "a sort of
public office, ' ' these plaintiffs in error do not. They stand, to use
again the language of their counsel, in the very "gateway of
commerce," and take toll from all who pass. Their business
most certainly "tends to a common charge, and is become a
thing of public interest and use." Every bushel of grain for
its passage "pays a toll, which is a common charge," and, there-
fore, according to Lord Hale, every such warehouseman "ought
to be under public regulation, viz., that he . . . take but
reasonable toll." Certainly, if any business can be clothed
"with a public interest and cease to be juris privati only," this
has been. It may not be made so by the operation of the Consti-
tution of Illinois or this statute, but it is by the facts.
We also are not permitted to overlook the fact that, for some
reason, the people of Illinois, when they revised their Constitu-
tion in 1870, saw fit to make it the duty of the general assembly
MUNN V. ILLINOIS. 419
to pass laws "for the protection of producers, shippers, and re-
ceivers of grain and produce, ' ' art. 13, sect. 7 ; and by sect. 5 of
the same article, to require all railroad companies receiving and
transporting grain in bulk or otherwise to deliver the same at
any elevator to which it might be consigned, that could be
reached by any track that was or could be used by such company,
and that all railroad companies should permit connections to be
made with their tracks, so that any public warehouse, &c., might
be reached by the cars on their railroads. This indicates very
clearly that during the twenty years in which this peculiar busi-
ness had been assuming its present ' ' immense proportions, ' ' some-
thing had occurred which led the whole body of the people to
suppose that remedies such as are usually employed to prevent
abuses by virtual monopolies might not be inappropriate here.
Neither is it a matter of any moment that no precedent can
be found for a statute precisely like this. It is conceded that the
business is one of recent origin, that its growth has been rapid,
and that it is already of great importance. And it must also be
conceded that it is a business in which the whole public has a
direct and positive interest. It presents, therefore, a case for the
application of a long-known and well-established principle in
social science, and this statute simply extends the law so as to
meet this new development of commercial progress. There is no
attempt to compel these owners to grant the public an interest in
their property, but to declare their obligations, if they use it
in this particular manner.
It matters not in this case that these plaintiffs in error had
built their warehouses and established their business before the
regulations complained of were adopted. What they did was
from the beginning subject to the power of the body politic to
require them to conform to such regulations as might be estab-
lished by the proper authorities for the common good. They
entered upon their business and provided themselves with the
means to carry it on subject to this condition. If they did not
wish to submit themselves to such interference, they should not
have clothed the public Math an interest in their concerns. The
same principle applies to them that does to the proprietor of a
hackney-carriage, and as to him it has never been supposed that
he was exempt from regulating statutes or ordinances because
he had purchased his horses and carriage and established his
business before the statute or the ordinance was adopted. . . .
420 CASES ON CONSTITUTIONAL LAW.
"We come now to consider the effect upon this statute of the
power of Congress to regulate commerce.
It was very properly said in the case of the State Tax on Rail-
way Gross Receipts, 15 "Wall. 293, that " it is not everything that
affects commerce that amounts to a regulation of it, within the
meaning of the Constitution." The warehouses of these plain-
tiffs in error are situated and their business carried on exclu-
sively within the limits of the State of Illinois. They are used
as instruments by those engaged in State as well as those engaged
in interstate commerce, but they are no more necessarily a part
of commerce itself than the dray or the cart by which, but for
them, grain would be transferred from one railroad station to
another. Incidentally they may become connected with inter-
state commerce, but not necessarily so. Their regulation is a
thing of domestic concern, and, certainly, until Congress acts in
reference to their interstate relations, the State may exercise all
the powers of government over them, even though in so doing it
may indirectly operate upon commerce outside its immediate
jurisdiction. "We do not say that a case may not arise in which
it will be found that a State, under the form of regulating its
own affairs, has encroached upon the exclusive domain of Con-
gress, in respect to interstate commerce, but we do say that,
upon the facts as they are represented to us in this record, that
has not been done. . . . Judgment affirmed.
Me. Justice Field and Me. Justice Stbong dissented. . . .
Note. — The doctrine of the principal case was re-examined and aflSrmed
in Budd v. New York (1892), 143 XJ. S. 517, and was given an even wider
application in Brass v. North Dakota (1894), 153 U. S. 391. As to what
businesses besides those mentioned in the principal ease are affected with
a public interest, see Boone County v. Patterson (1878), 98 TJ. S. 403 (log
driving); Spring Valley Water Works v. Schottler (1884), 110 U. S. 347
(water works); Express Cases (1886), 117 U. S. 1 (express companies);
Sands v. Manistee Eiver Improvement Co. (1887), 123 U. S. 288 (river im-
provements) ; Gibbs V. Consolidated Gas Co. (1889), 130 U. S. 396 (gas
light companies) ; Covington etc. Turnpike Eoad Co. v. Sandford (1896),
164 U. S. 578 (turn pikes); San Diego Land Co. v. National City (1899),
174 U. S. 739 (irrigation) ; Western Union Telegraph Co. v. Call Publishing
Co. (1901), 181 U. S. 92 (telegraph companies); Cotting v. Kansas City
Stockyards Co. (1901), 183 TJ. S. 79 (stockyards); Chesapeake & Potomac
Telephone Co. v. Manning (1902), 186 U. S. 238 (telephone companies);
Capital City Light & Ftiel Co. v. Tallahassee (1902), 186 IT. 8. 401 (electric
light companies); Board of Trade v. Christie Grain & Stock Co. (1905),
198 U. S. 236 (ticker service companies) ; German Alliance Insurance Co.
V. Lewis (1914), 233 U. S. 389 (fire insurance) ; The Pipe Line Cases (1914),
234 TJ. S. 548 (pipe lines) ; Searles v. Mann Co. (1891), 45 Fed. 330 (sleep-
NORTHERN PAC. RY. CO. v. NORTH DAKOTA. 421
ing car companies); United States v. Ormsbee (1896), 74 Fed. 207 (canal
companies); Milwaukee Electric Ey. v. Milwaukee (1898), 87 Fed. 577
(street railways) ; BaUlie v. Larson (1905), 138 Fed. 177 (mining tunnels) ;
Walker v. Shasta Power Co. (1908), 160 Fed. 856 (electric power transmis-
sion line) ; Dalles Lumbering Co. v. Urquhart (1888), 18 Oregon, 67 (lumber
flumes); State v. Edwards (1893), 88 Maine, 102 (saw mills); State v.
Jacksonville Terminal Co. (1899), 41 Fla. 363 (railway terminal com-
panies) ; Inter-Ocean Publishing Co. v. Associated Press (1900), 184 lU. 438
(news collecting agency) ; People v. Hartford Life Insurance Co. (1911),
252 lU. 398 (life insurance companies).
The whole law governing business affected with a public interest is fully
and admirably treated in Wymau, Public Service Corporations. See also an
able article by C. K. Burdiok, on "The Origin of the Peculiar Duties of
Public Service Corporations" in Columbia Law Beview, xi, 515, 616, 743.
NORTHERN PACIFIC RAILWAY COMPANY v. STATE
OF NORTH DAKOTA.
MINNEAPOLIS, ST. PAUL & SAULT STB. MARIE RAIL-
WAY COMPANY V. SAME.
Supreme Court of the United 'States. 1915.
236 U. S. 585; 59 Lawyers' Ed. — .
Error to the Supreme Court of the State of North Dakota.
[The legislature of North Dakota in 1907 fixed maximum
intrastate rates graduated according to distance for the trans-
portation of coal in carload lots. In practice these rates applied
almost solely to lignite coal. By judicial proceedings in the
courts of North Dakota, sustained in 216 U. S. 579, the carriers
were compelled to give the new rates a trial. In the fiscal year
ending June 30, 1911, the total revenue received by the Northern
Pacific Railway on the intrastate carriage of lignite coal was
$58,953.07, on which it made a net profit of $847, while the same
business was conducted by the Minneapolis, St. Paul & Sault
Ste. Marie Railway at an actual loss of from $9,000 to $12,000,
even when no allowance was made to it for interest on the invest-
ment in its property. The entire intrastate business of the car-
riers as a whole produced a fair return, but they contended that
the act by which they were compelled to carry any commodity
for less than a reasonable return deprived them of property
without due process of law.]
422 CASES ON CONSTITUTIONAL LAW.
Mi?. Justice Hughes delivered the opinion of the court. . . .
The general principles to be applied are not open to contro-
versy. The railroad property is private property devoted to a
public use. As a corporation, the owner is subject to the obliga-
tions of its charter. As the holder of special franchises, it is
subject to the conditions upon which they were granted. Aside
from specific requirements of this sort, the common carrier must
discharge the obligations which inhere in the nature of its busi-
ness. It must supply facilities that are reasonably adequate;
it must carry upon reasonable terms, and it must serve without
unjust discrimination. These duties are properly called public
duties, and the State within the limits of its jurisdiction may
enforce them. The State may prescribe rules to insure fair
remuneration and to prevent extortion, to secure substantial
equality of treatment in like cases, and to promote safety, good
order and convenience.
But, broad as is the power of regulation, the State does not
enjoy the freedom of an owner. The fact that the property is
devoted to a public use on certain terms does not justify the
requirement that it shall be devoted to other public purposes, or
to the same use on other terms, or the imposition of restrictions
that are not reasonably concerned with the proper conduct of
the business according to the undertaking which the carrier has
expressly or impliedly assumed. If it has held itself out as a
carrier of passengers only, it cannot be compelled to carry
freight. As a carrier for hire, it cannot be required to carry
persons or goods gratuitously. The case would not be altered
by the assertion that the public interest demanded such car-
riage. The public interest cannot be invoked as a justification
for demands which pass the limits of reasonable protection and
seek to impose upon the carrier and its property burdens that
are not incident, to its engagement. In such case, it would be no
answer to say that the carrier obtains from its entire intrastate
business a return as to the sufficiency of which in the aggregate
it is not entitled to complain. . . .
"We have, then^ to apply these familiar principles to a case
where the State has attempted to fix a rate for the transporta-
tion of a commodity under which, taking the results of the busi-
ness to which the rate is applied, the carrier is compelled to
transport the commodity for less than cost or without substan-
tial compensation in addition to cost. We say this, for we enter-
tain no doubt that, in determining the cost of the transportation
of a particular commodity, all the outlays which pertain to it
NORTHERN PAC. RY. CO. v. NORTH DAKOTA. 423
must be considered. We find no basis for distinguishing in this
respect between so-caJled "out-of-pocket costs," or "actual"
expenses, and other outlays which are none the less actually made
because they are applicable to all traffic, instead of being exclu-
sively incurred in the traffic in question. Illustrations are
found in outlays for maintenance of way and structures, general
expenses and taxes. It is not a sufficient reason for excluding
such, or other, expenses to say that they would still have been
incurred had the particular commodity not been transported.
That commodity has been transported; the common carrier is
under a duty to carry, and the expenses of its business at a par-
ticular time are attributable to what it does carry. The State
cannot estimate the cost of carrying coal by throwing the expense
incident to the maintenance of the roadbed, and the general
expenses, upon the carriage of wheat; or the cost of carrying
wheat by throwing the burden of the upkeep of the property
upon coal and other commodities. This, of course, does not
mean that all commodities are to be treated as carried at the
same rate of expense. The outlays that exclusively pertain to a
giveln class of traffic must be assigned to that class, and the
other expenses must be fairly apportioned. It may be difficult
to make such an apportionment, but when conclusions are based
on cost the entire cost must be taken into account.
It should be said, further, that we' find nothing in the record
before us, and nothing in the facts which have been set forth with
the most careful elaboration by the state court, that can be taken
to indicate the existence of any standard whatever by reference
to which the rate in question may be considered to be reasonable.
It does not appear that there has been any practice of the car-
riers in North Dakota which affords any semblance of support to
a rate so low. "Whatever inference may be deduced from coal
rates in other States, as disclosed by the record, is decidedly
against the reasonableness of the rate. ... I
The State insists that the enactment of the statute may be
justified as "a declaration of public policy." In substance, the
argument is that the rate' was imposed to aid in the develop-
ment of a local industry and thus to confer a benefit upon the
people of the State. The importance to the community of its
deposits of lignite coal, the infancy of the industry, and the
advantages to be gained by increasing the consumption of this
coal and making the community less dependent upon fuel sup-
plies imported into the State, are emphasized. But, while local
interests serve as a motive for enforcing reasonable rates, it
424 CASES ON CONSTITUTIONAL LAW.
would be a very different matter to say that the State may com-
pel the carrier to maintain a rate upon a particular commodity
that is less than reasonable,- or — as might equally well be
asserted — to carry gratuitously, in order to build up a local
enterprise. That would be to go outside the carrier's under-
taking, and outside the field of reasonable supervision of the
conduct of its business, and would be equivalent to an appro-
priation of the property to public uses upon terms to which the
carrier had in no way agreed. It does not aid the argument
to urge that the State may permit the carrier to make good its
loss by charges for other transportation. If other rates are
exorbitant, they may be reduced. Certainly, it could not be
said that the carrier may be required to charge excessive rates
to some in order that others might be served at a rate unreason-
ably low. That would be but arbitrary action. "We cannot
reach the conclusion that the rate in question is to be supported
upon the ground of public policy if, upon the facts found, it
should be deemed to be less than reasonable.
The legislature, undoubtedly, has a wide range of discretion
in the exercise of the power to prescribe reasonable charges,
and it is not bound to fix uniform rates for all commodities or
to secure the same percentage of profit on every sort of business.
There are many factors to be' considered, differences in the arti-
cles transported, the care required, the risk assumed, the value
of the service, and it is obviously important that there should
be reasonable adjustments and classifications. Nor is its author-
ity hampered by the necessity of establishing such minute dis-
tinctions that the effective exercise of the rate-making power
becomes impossible. It is not bound to prescribe separate rates
for every individual service performed, but it may group services
by fixing rates for classes of traffic. As repeatedly observed, we
do not sit as a revisory board to substitute our judgment for that
of the legislature, or its administrative agent, as to matters
within its province. San Diego Land & Town Co. v. Jasper,
189 U. S. 439 ; Louisville & Nashville E. R. v. Garrett, 231 U. S.
298, 313. The court, therefore, is not called upon to concern
itself with mere details of a schedule ; or to review a particular
tariff or schedule which yields substantial compensation for the
services it embraces, when the profitableness of the intrastate
business as a whole is not involved.
But a different question arises when the State has segregated
a commodity, or a class of traffic, and has attempted to compel
the carrier to transport it at a loss or without substantial com-
NORTHERN PAC. RY. CO. v. NORTH DAKOTA. 425
pensation even though the entire traffic to which the rate is
applied is taken into account. On that fact being satisfactorily
established, the assumption of reasonableness is rebutted. If in
such a case there exists any practice, or what may be taken to
be (broadly speaking) a standard of rates with respect to that
traffic, in the light of which it is insisted that the rate should
still be regarded as reasonable, that should be made to appear.
As has been said, it does not appear here. Frequently attacks
upon state rates have raised the question as to the profitable-
ness of the entire intrastate business under the State's require-
ments. But the decisions in this class of cases furnish no ground
for saying that the State may set apart a commodity or a spe-
cial class of traffic and impose upon it any rate it pleases, pro-
vided only that the return from the entire intrastate business is
adequate. . . .
The judgments, respectively, are reversed and the' cases are
remanded for further proceedings not inconsistent with this
opinion. It is so ordered.
Mr. Justice Pitney dissents.
Note. — Accord: Norfolk & Western Ey. v. West Virginia (1915), 236
U. S. 605. A carrier may be required to furnish a facility which it is part
of its general duty to furnish even though this entails a loss, Atlantic Coast
Line Ey. v. North Carolina Corporation Commission (1907), 206 U. 8. 1,
but to require it to furnish a facility which it is not its duty to furnish
deprives it of property without due process of law. Great Northern Ey.
V. Minnesota (1915), 238 U. S. 340.
Most of the legislation adopted for the regulation of transportation and
other public service companies has to do with the making of rates, authority
over which has been generally vested in commissions. The function of rate-
making is of a legislative character, KnoxviUe v. Knoxville Water Co.
(1909), 212 IT. S. 1, 8, and to vest it in a commiasion seemed a violation of
the maxim that legislative power cannot be delegated, but the validity of
such a delegation is no longer questioned. Interstate Commerce Commission
V. Goodrich Transit Co. (1912), 224 U. S. 194. Bate regulation is subject
to the constitutional provisions for the protection of property, Eeagan v.
Farmers' Loan & Trust Co. (1894), 154 U. S. 362. Hence any regulation
of rates which aU things considered makes impossible a fair return is in-
valid. San Diego Land & Town Co. v. Jasper (1903), 189 U. S. 439; WiUoox
V. Consolidated Gas Co. (1909), 212 U. S. 19. Whether a rate fixed by a
legislature or a commission prevents a fair return or not is a judicial ques-
tion, and any attempt to debar an appeal to the courts is a deprivation of
due process of law. Chicago, Milwaukee & St. Paul Ey. v. Minnesota (1890),
134 U. 8. 418; Ex parte Young (1908), 209 U. 8. 123. The cases on this
point are coUeeted in Evans, "Judicial Control of Commission Eate-Mak-
ing, " Case and Comment, xxi, 895.
426 CASES ON CONSTITUTIONAL LAW.
Hates fixed by public authority must not only comply with the due process
requirement of the Fifth and Fourteenth Amendments, but a rate fixed by a
State must also be confined to the intrastate business of the carrier in order
to avoid infraction of the power of Congress over interstate commerce. In
practice this has proved the most difficult feature of the regulation of rates
since practically all carriers are engaged in both intrastate and interstate
commerce and the two kinds of business cannot be separated. Under the
decision in Smyth v. Ames (1897), 169 TJ. S. 466, holding that rates fixed
by the States on intrastate business must yield a reasonable return on that
business, some separation must be attempted in order to determine whether
they do yield such a return. The practical difficulties in the way of such
a separation led the court to suggest in the Minnesota Eate Cases (1913),
230 U. S. 352, 432-3, that the two kinds of commerce were so inextricably
blended as perhaps to make it necessary for Congress to regulate both in
order to have an effective regulation of that which has been specifically
subjected to its control.
While it is admitted that a public service company is entitled to a fair
return, there is much difference of opinion as to the factors entering into
the value on which the return should be measured. In a much quoted passage
in Smyth v. Ames (1897), 169 U. S. 466, 546, the Supreme Court said:
We hold, however, that the basis of all calculations as to reason-
ableness of rates to be charged by a corporation maintaining a
highway under legislative sanction must be the fair value of the
property being used by it for the convenience of the public. And
in order to ascertain that value, the original cost of construction,
the amount expended in permanent improvements, the amount and
market value of its bonds and stock, the present as compared with
the original cost of construction, the probable earning capacity of
the property under particular rates prescribed by statute, and the
sum required to meet operating expenses, are all matters for con-
sideration, and are to be given such weight as may be just and
right in each case. We do not say that there may not be other
matters to be regarded in estimating the value of the property.
What the company is entitled to ask is a fair return upon the value
which it employs for the public convenience. On the other hand,
what the public is entitled to demand is that no more be exacted
from it for the use of a public highway than the services rendered
are reasonably worth.
The best discussion of rate-making to be found in the reports is the
masterly opinion of Justice Hughes in the Minnesota Eate Cases (1913),
230 U. S. 352. As to the various factors which may enter into the value
upon which the carriers are entitled to a fair return, see Cleveland, C. C. &
St. L. Ey. V. Backus. (1894), 154 U. S. 439; Cumberland Telephone & Tele-
graph Co. V. Memphis (1908), 187 Fed. 875 (original investment); Illinois
Central Ey. v. Interstate Commerce Commission (1907), 206 U. S. 441
(expenditure for permanent improvements) ; Eailroad Commission of Louis-
iana V. Cumberland Telephone & Telegraph Co. (1909), 212 U. S. 414 (de-
preciation fund as part of capital) ; Omaha v. Omaha Water Co. (1910), 218
XT. S. 180; Cumberland Telephone & Telegraph Co. v. Louisville (1911), 187
Fed. 637 (going value) ; Consolidated Gas Co. v. City of New York (1907),
NORTHERN PAC. RY. CO. v. NORTH DAKOTA. 42'/
157 Fed. 849 (franchise value) ; San Diego Land & Town Co. v. Jasper (1903),
189 U. S. 439; Public Service Gas Co.' v. Public UtOity Board (1913), 84
N. J. Law, 463 (present value of plant) ; Knoxville v. Knoxville Water Co.
(1909), 212 U. S. 1; Willcox v. Consolidated Gas Co. (1909), 212 U. S. 19;
C. H. Venner Co. v. Urbana Waterworks (1909), 174 Fed. 348; Steenerson
V. Great Northern Ey. (1897), 69 Minn. 353 (present cost of reproduction).
The regulation of rates, particularly of carriers, is comprehensively
treated in Beale and Wyman, Railroad Eate Eegulation (2nd edition). On
the making of rates, see Noyes, American Railroad Bates; Hammond, Bate
Theories of the Interstate Commerce Commission. On questions of valua-
tion see Floy, Valuation of Puhlio Utility Properties; Foster, Engineering
Valuation of Public Utilities and Factories; Hayes, Public Utilities: Their
Cost New and Depreciation ; Wyer, Begulation, Valuation, and Depreciation
of Public Utilities; and Whitten, Valuation of Public Service Corporations,
and Supplement.
TABLE OF CASES
Cases which are merely mentioned in the decisions or notes are not
always included in this table. Names of cases which make up the body
of the collection and the pages on which the decisions may be found are
printed in italics.
A
Adair v. United States, 208 U. S.
161:343.
Adams v. Milwaukee, 228 U. 8.
572 : 368.
Adams v. New York, 192 TJ. S.
585:338.
Adams Express Co. v. Croninger,
226 U. S. 491: 401.
Adams Express Co. v. Kentucky,
238 U. S. 190:389.
Adams Express Co. v. New York,
232 U. S. 14: 398.
Adams Express Co. v. Ohio, 165
U. S. 194: 292.
Addystone Pipe & Steel Co. v. United
States, 175 U. S. 211: 279, 310.
Ah Lin v. Wittman, 198 U. S. 500:
382.
Alabama v. Georgia, 23 Howard,
505: 159.
AUen V. Inhabitants of Jay, 60
Me. 127:207.
Allgeyer v. Louisiana, 165 U. S.
578:312, 316, 343, 374.
Allison V. Corker, 67 IT. S. Law,
596:11.
Almy V. California, 24 Howard,
169: 263.
American Express Co. v. Iowa, 196
U. S. 133 : 292.
American Insurance Co. v. Canter,
1 Peters, 511 : 59.
American School of Magnetic Heal-
ing V. McAnnulty, 187 U. S.
94: 338.
Anderson v. Pacific Coast Steam-
ship Co., 225 V. S. 187: 300.
Atlantic Coast Line Ity. v. Georgia,
234 U. S. 280: 403.
Atlantic Coast Line Ey. v. Golda-
boro, 232 U. S. 548: 407.
Atlantic Coast Line Ry. v. N. C.
Corporation Com., 206 U. S.
1:425.
Attorney-General v. Eau Claire, 37
Wis. 400 : 211.
Austin V. Tennessee, 179 U. S.
343: 292, 373.
Austin V. Day, 2 Giff. 628: 201.
Baccus V. Louisiana, 232 U. S.
334:369.
Bacon v. Walker, 204 U. S. 311 : 413.
BaiUie v. Larson, 138 Fed. 177: 421.
Baldwin v. Hale, 1 Wallace, 223:
184.
Baltic Mining Co. v. Massachusetts,
231 IT. 8. 68 : 368.
Baltimore & Ohio Ey. v. Interstate
Commerce Commission, 221 IT. 8.
612.
Bank v. The Supervisors, 7 Wal-
lace, 26 : 220.
Bank of Commerce v. New York
City, 2 Black, 620 : 220.
Banks v. The Mayor, 7 Wallace,
16:220.
Barhier v. Connolly, 113 IT. 8. 27:
Seo, 412.
Barrington v. Missouri, 205 IT. S.
483:116.
Barron v. Baltimore, 7 Peters, 243:
116, 329.
Bartmeyer v. Iowa, 16 Wallace, 130 :
119.
429
430
TABLE OP CASES
Barvitz v. Beverley, 163 U. S. 118:
184.
Baxter v. Commissioners, 4 Com.
L. E. (Australia), Pt. II, 1087:
228.
Beer Company v. Massachusetts, 97
V. S. 25: 373, 381.
Berea College v. Kentucky, 211 U. S.
45: 356.
Binghamton Bridge, 3 WaUaee, 51:
171.
Blake v. McClung, 172 U. S. 239:
359.
Board of Trade v. Christie Grain &
Stock Co., 198 IT. S. 236: 420.
Bonham's Case, 8 Eep. 118o: 327,
334.
Boone County v. Patterson, 98
U. S. 403 : 420.
Booth V. lUinois, 184 U. S. 425: 382.
Bosley v. McLaughlin, 236 U. S.
385:369.
Bowman v. Chicago & Northwest-
ern Ey., 125 IT. S. 465: 292, 385.
Boyd V. Thayer, 143 U. S. 135: 104.
Bradwell v. Illinois, 16 Wallace, 130 :
119.
Brass v. North Dakota, 153 U. S.
391: 420.
Briscoe V. Bank of KentucJcy, 11
Peters, 257 : 190, 202.
Bronson v. Kinzie, 1 Howard, 311:
184.
Bronson v. Eodes, 7 Wallace, 229:
204.
Brown v. Houston, 114 U. S. 622:
292.
Brown v. Maryland, 12 Wheaton,
419 : 280.
Brown v. New Jersey, 175 TJ. S. 172 :
116, 320, 337.
Budd V. New York, 143 U. S. 517:
420.
Burlington Township v. Beasley, 94
U. S. 310:211.
Butchers' Union Slaughter House
Co. V. Crescent City Live-Stoct
Landing Co., Ill U. S. 746: 119,
380.
Buttfield V. Stranahan, 192 U. S.
470:318, 338.
Calder v. Bull, 3 DaUas, 386:184,
327.
California v. San Pablo & Tulare
By., 149 U. S. 308: 11.
California Eeduction Co. v. Sanitary
Eeduetion Works, 199 V. S. 306:
373.
Callan v. Wilson, 127 U. S. 540: 62.
Calvin's Case, 7 Eep. 1: 98, 100.
Camfield v. United States, 167 U. S.
518:412.
Capital City Light & Fuel Co. v.
Tallahassee, 186 U. S. 401 : 420.
Carroll v. Greenwich Ins. Co., 199
U. S. 401:366.
Central Land Co. v. Laidley, 159 U.
S. 103 : 184.
Central Lumber Co. v. South Dakota,
'2,2.6 U. S. 157: 364, 368.
Chae Chan Ping v. United States,
130 U. S. 581: 36.
Champion V. Ames, 188 U. S. 321:
81S.
Charles Siver Bridge Co. v. Warren
Bridge Co., 11 Peters, 420: 171.
Cherokee Nation v. Georgia, 5 Pet-
ers, 1 : 103, 14$, 152.
Cherokee Nation v. Hitchcock, 187
U. S. 294:359.
Cherokee Trust Funds, 117 U. S.
288:103.
Chesapeake & Potomac Telephone
Co. V. Manning, 186 U. S. 238:
420.
Chicago v. Sturges, 222 U. S. 313:
395.
Chicago & Alton Ey. v. Tranbarger,
238 U. S. 67:413.
Chicago, Burlington & Quincy Ey. v.
Chicago, 166 U. S. 226: 328, 329.
Chicago, Burlington & Quincy Ey. v.
Drainage Commissioners, 200 V.
S. 561:412, 413.
Chicago, Burlington & Quincy Ey. v.
McGuire, 219 U. S. 549: 367, 397,
404, 413.
Chicago & Grand Trunk Ey. v. Well-
man, 143 U. 8.339: 11.
TABLE OF CASES
431
Chicago, Milwaukee & St. Paul Ey. v.
Minneapolis, 232 U. S. 430: 407.
Chicago, Milwaukee & St. Paul Ey. v.
Minnesota, 134 U. S. 418 : 339, 340,
425.
Chiles V. Chesapeake & Ohio Ey., 218
U. 8. 71: 356.
Chisholm v. Georgia, 2 Dallas, 419:
1^6, 154, 156.
Choate v. Trapp, 224 U. S. 665: 359.
Christian v. Atlantic & N. C. Ey., 133
U. S. 233 : 157.
Church V. Kelsey, 121 U. S. 282 : 171.
C. H. Venner Co. v. Urbana Water-
works, 174 Fed. 348 : 427.
Chy Lung v. Freeman, 92 U. S. 275 :
358.
Cincinnati, N. O. & Tex. Ey. v. In-
terstate Commerce Commission,
162 U. 8. 184: 279.
Citizens Insurance Co. v. Parsons,
7 L. E. Appeal Cases, 96 : 253.
City of. Minneapolis v. Eeum, 56
Fed. 576.
Civil Eights Cases, 109 U. S. 3:
119.
Clark V. Tousey, Acts of the Privy
CouncU, III 580: 8.
Cleveland, C. C. & St. L. Ey. v. Back-
us, 154U. S. 439: 426.
Coe V. Errol, 116 U. S. 517: 260, 292.
Cohens v. Virginia, 6 Wheaton, 264:
Cole V. La Grange, 113 U. 8. 1: 211.
Collector v. Day, 11 Wallace, 113:
Collins V. New Hampshire, 171 U. 8.
30: 373.
Commercial Bank v. Buckingham's
Executors, 5 Howard, 317: 184.
Commonwealth v. Alger, 7 Gushing,
53: 373, 381.
Commonwealth v. Caton, 4 Call, 5 : 9.
Commonwealth v. Hamilton Mfg. Co.,
120 Mass. 383 : 376.
Consolidated Gas Co. v. City of New
York, 157 Fed. 849:426.
Cook v. Marshall County, 196 U. S.
261: 292, 373.
Cook V. MofEatt, 5 Howard, 295: 184,
Cooley V. Wardens of the Port, 12
Howard, 299 : 293, 383.
Coppage v. Kansas, 236 U. S. 1 : 343.
Corfield v. Coryell, 4 Washington's
Circuit Court, 371 : 108.
Cotting V. Kansas City Stockyards
Co. 183 U. 8. 79:420.
County of Mobile v. Kimball, 102 U.
8. 691: 308.
Coutzen v. United States, 179 U. 8.
191: 104.
Covington See. Turnpike Co. v.
Sandford, 164 U. 8. 578: 420.
Covington Bridge Co. v. Kentucky,
154 U. S. 204: 263.
Craig v. Missouri, 4 Peters, 410 : 185,
197, 201.
Crandall v. Nevada, 6 Wall. 35: 4S,
110, 117.
Crutcher v. Kentucky, 141 U. S. 47 :
400.
Cumberland Tel. & Tel. Co. v. Louis-
viUe, 187 Fed. 637: 426.
Cumberland Tel. & Tel. Co. v. Mem-
phis, 187 Fed. 875: 426.
Daggett V. Colgan, 92 Cal. 53: 211.
Dalles Lumbering Co. v. Urquhart,
18 Or. 67: 421.
Darrington v. Bank of Alabama, 13
Howard, 12 : 195.
Dartmouth College v. Woodward, 4
Wheaton, 518: 160.
Davidson v. New Orleans, 96 U. 8.
77: 320, 328.
Davis v. Massachusetts, 167 U. 8.
43 : 413.
Day V. Savadge, Hobart, 87: 327.
Deal V. Mississippi County, 107 Mo.
464: 21L
De Lima v. Bidwell, 182 TJ. 8. 1 : 70.
D'Emden v. Pedder, 1 Com. L. E.
(Australia) 91: 228.
Dent v. West Virginia, 129 U. 8.
114: 413.
Diamond Match Co. v. Ontanagon,
188 V. S. 82: 292.
Dobbins v, Erie County, 16 Peters,
435: 224.
432
TABLE OF CASES
Dodge V. Mission Township, 46 C.
C. A. 661:211.
Doe V. Braden, 16 Howard, 635 : 152.
Dorr V. United States, 195 U. S.
138 : 79, 338.
Douglas V. County of Pike, 101 U.
S. 677: 184.
Douglas V. Kentucky, 168 U. S.
488: 315.
Dowries v. Bidwell, 182 U. S. 244:
65.
E
Easterling Lumber Co. v. Pierce, 235
U. 8. 380: 369.
Eberle v. Michigan, 232 U. S. 700:
369.
Edwards v. Kearzey, 96 U. S. 595:
184.
Elk V. Wilkins, 112 U. S. 94: 97,
103.
El Paso & Northwestern By. v.
Gutierrez, 215 U. S. 87: 279.
Employers' Liability Cases, 207 TJ.
S. 463 : 11, 279.
Engel V. O'Malley, 219 U. S. 128:
263.
Equitable Life Ass. Soc. v. Penn-
sylvania, 238 U. S. 143 : 253.
Erie Ey. v. WiUiams, 233 U. 8. 685:
413.
Esoandba Co. V. Chicago, 107 U. S.
678 : S89.
Eubank v. Eichmond, 226 V. S. 137:
412.
Ex parte Cooper, 143 U. S. 472:
152.
Ex parte Virginia, 100 U. S. 339:
97, 326, 355, 359.
Ex parte Tarbrough, 110 U. S. 651:
117, 123.
Ex parte Young, 209 U. 8. 123 : 10,
132, 339, 341, 425.
Express Cases, 117 U. S. 1 : 420.
Eallbrook Irrigation District v.
Bradley, 164 U. S. 112:211.
Fifth Avenue Coach Co. v. New
York, 221 U. 8. 467:413.
Fletcher v. Peck, 6 Cranch, 87 : 11,
171, 184, 328.
Florida v. Georgia, 17 Howard, 478 :
159.
Pok Yung Yo v. United States, 185
U. 8. 296:41.
Fong ¥ue Ting v. United States, 149
U. 8. 698 : 35, 101.
Foster v. Kansas, 112 U. 8. 201:
378.
Foster v. Nielson, 2 Peters, 253:
152.
G
Garcia v. Lee, 12 Peters, 511: 152.
Gatewood v. North Carolina, 203 U.
8. 531 : 382.
Geer v. Connecticut, 161 U. 8. 519:
367.
Gelpcke v. Dubuque, 1 Wallace, 175 :
184.
Gelston v. Hoyt, 3 Wheaton, 246:
152.
General Oil Co. v. Grain, 209 U. 8.
211 : 292.
Georgia v. 8tanton, 6 Wallace, 50:
152.
Georgia Railroad & Banking Co. v.
Smith, 128 U. 8, 174:373.
German Alliance Ins. Co. v. Lewis,
233 U. S. 389:420.
Giihons v. Ogden, 9 Wheaton, 1:
U5, Ses, 305, 318, 372, 388, 410.
Gibbs V. Consolidated Gas Co., 130
U. 8. 396 : 420.
Gilman v. Philadelphia, 3 Wallace,
713: 263, 305, 392.
Gloucester Ferry Co. v. Pennsyl-
vania, 114 U. 8. 196: 292.
Goldfield Consolidated Mines Co. v.
Goldfield Miners' Union, 159 Fed.
500:350.
Gonzales v. Williams, 192 U. 8. 1:
103.
Gordon v. United States, 117 U. 8.
697: 156.
TABLE OF CASES
433
Grand Trunk Western Ey. v. E. E.
Com. of Indiana, 221 U. S. 400:
184, 340.
Great Northern Ey. v. Minnesota,
238 U. S. 340: 425.
Green v. Biddle, 8 Wheaton, 1 : 171.
Griffith V. Connecticut, 218 U. S.
563 : 413.
Guinn Sr Beat v. United States, 238
U. S. 347: iI9.
Gulf, Colo. & Santa Fe Ey. v. Ellis,
165 U. S. 150: 359.
Gunn V. Barry, 15 Wallace, 610:
184.
H
Hagar v. Eeelamation District, 111
U. S. 701 : 338.
Halter v. Nebraska, 205 U. S. 34:
11.
Hammerstein v. Lyne, 200 Fed.
165: 103.
Hanley v. Kansas City Southern Ey.,
187 TJ. S. 617:263, 310.
Hans V. Louisiana, 134 U. S. 1:
132, 139.
Hanson v. Vernon, 27 Iowa, 28:
207.
Hawaii v. Mankichi, 190 U. S. 197:
79, 338.
Hays V. Pacific Mail Steamship Co.,
17 Howard, 596 : 328.
Head Money Cases, 112 U. S. 580:
263.
Heckman v. United States, 224 U.
S. 413 : 147.
Henderson v. Mayor of New York,
92 V. S. 259: 358, 372.
Hendiick v. Maryland, 235 U. S.
610: 407.
Hepburn v. EUzey, 2 Cranch. 445:
103.
Hepburn v. Griswold, 8 Wallace,
616: 199.
Heyman v. Hays, 236 U. S. 178:
389.
Hibben v. Smith, 191 U. S. 310:
329.
Hibemia Savings and Loan Society
V. San FianciBCo, 200 U. S. 310:
220.
Hodges V. United States, 203 U. S.
1: 117, 119.
Holden v. Bardy, 169 U. S. 366:
320, 374.
Home Savings Bank v. Des Moines,
205 U. S. 503 : 220.
Hooper v. California, 155 U. S.
647: 253.
Hope V. United States, 227 U. S.
308:318.
Hopkins v. Clemson Agricultural
College, 221 U. S. 636: 132.
Houston, E. Sr W. Texas Sy. v.
United States, 234 U. S. 342 : 306.
Houston & T. C. Ey. v. Mayes, 201
U. S. 321:263.
Houston & T. C. Ey. v. Texas, 177
U. S. 66: 195.
Hovey v. BDiott, 167 U. S. 409:
324.
Hunter v. Pittsburgh, 207 U. S.
161 : 359.
Hurtado v. California, 110 U. S.
516: 118, 320, S31.
Eylton V. United States, 3 Dallas,
171: 221, S34.
Illinois Central Ey. v. Behrens, 233
U. S. 473 : 308.
Illinois Central Ey. v. Illinois, 146
U. S. 387: 171.
Illinois Central Ey. v. McKendree,
203 U. S. 514: 11.
Indiana v. Kentucky, 136 U. 8. 479 :
159.
Inglis V. Sailors' Snug Harbor, 3
Peters, 99 : 98, 104.
In re Baiz, 135 U. S. 432: 153.
In re Berger, 33 Ohio C. C. 289:
350.
In re Debs, 158 U. S. 564: 300.
In re Duncan, 139 U. S. 461 : 152.
In re Heflf, 197 U. S. 488 : 359.
In re Kemmler, 136 U. S. 436: 117.
434
TABLE OP CASES
In re Lockwood, 154 U. S. 116: 119.
In re Neagle, 135 U. S. 1: SS.
In re Quarles, 158 U. S. 532: 117.
In re Eahrer, 140 U. S. 545:317,
388.
In re Boss, 140 U. S. 453: 78.
In re Tenny, 86 Fed. 303: 41.
International Sarvester Co. of
America v. Kentucky, 234 U. S.
216: 329.
International Text-Book Co. v. Pigg,
217 U. S. 91: 263, 400.
Inter-Ocean Publishing Co. v. Asso-
ciated Press, 184 lU. 438 : 421.
Interstate Commerce Commission v.
Brimson, 154 U. S. 447: 11.
Interstate Commerce Commission v.
Goodrich Transit Co., 224 U. S.
194:308, 425.
Iowa V. Illinois, 202 U. S. 59 : 159.
Jacobson v. Massachusetts, 197 U.
S. 11:343.
James v. Bowman, 190 U. S. 127:
11, 119.
Japanese Immigrant Cases, 189 U.
S. 86:41, 338.
Jeffrey Mfg. Co. v. Blagg, 235 U.
S. 571: 369.
Jetton V. University of the South,
208 U. S. 489: 178.
Jones V. Meehan, 175 U. S. 1 : 359.
Jones V. United States, 137 U. S.
202: 152.
Joplin V. Southwest Missouri Light
Co., 191 U. S. 150:177.
Juilliard v. Greenman, 110 U. S.
4:21:193.
Kansas v. Colorado, 185' U. S. 125,
206 U. 8. 46:35, 159.
Kansas v. United States, 204 U. S.
331: 159.
Kansas City Southern By. v. An-
derson, 233 U. S. 325: 369^
Kelley v. Ehoads, 188 U. S. 1 : 292.
Kennett v. Chambers, 14 Howard,
38: 152.
Keokee Coke Co. v. Taylor, 234 U.
S. 224:369.
Kidd V. Pearson, 128 U. S. 1 : 260.
Kimmish v. Ball, 129 U. S. 217:
373.
King V. MuUins, 171 U. S. 404: 337.
Knights Templars' Indemnity Co.
V. Jarman, 187 U. S. 197: 10.
Knox V. Lee. See Legal Tender
Cases.
KnoxviUe v. KnoxvUle Water Co.,
212 U. S. 1 : 425, 427.
Laclede Gas Light Co. v. Murphy,
170 U. S. 78:407.
Lake Shore & Mich. So. By. v. Ohio,
173 U. S. 285:413.
Lane County v. Oregon, 7 Wallace,
76 : 48, 204, 226.
Lang V. Eandall, 4 Dill. 425: 103.
Lankford v. Platte Iron Works, 235
U. S. 461: 132.
Lapina v. Williams, 232 U. S. 78:
41.
Laramie County v. Albany County,
92 U. S. 307: 170.
Lawton v. Steele, 152 U. S. 133 : 368,
373.
Lee V. Bude & Torrington By., L. E.,
6 C. P. 576: 327.
Lee Ah Yin v. United 'States, 116
Fed. 614: 41.
Legal Tender Cases, 12 Wall. 457:
34, 37, 199, 202, 203, 204.
Leisy v. Hardin, 135 U. S. 100:
292, 383, 409.
Leloup V. Port of Mobile, 127 U.
S. 640:292, 400.
Lew Quen Wo v. United States, 184
Fed. 685: 41.
L'Hote V. New Orleans, 177 U. S.
587:368, 382.
License Cases, 5 Howard, 504: 292,
299, 370, 386, 415.
Lindsley v. Natural Carbonic Gas
Co., 220 U. S. 61 : 365, 368.
TABLE OP CASES
435
Li Sing V. tJnited States, 180 U. S.
486: 356.
Livingston v. Moore, 7 Peters, 469:
184.
Loan Association v. Topeka, 20 Wal-
lace, 655 : SOS.
Loewe v. Lawler, 208 TJ. S. 274:
279.
Logan V. United States, 144 U. S.
263 : 117.
Lone Wolf v. Hitchcock, 187 U. S.
553: 103, 152.
Lord V. Steamship Co., 102 U. S.
541: 310.
Los Angeles v. City Water Co., 177
U. S. 558: 171.
Lottery Case, 188 U. S. 321: 313.
Louisiana v. Mississippi, 202 U. S.
158: 159.
Louisiana v. New Orleans, 109 U. S.
285: 171.
Louisiana v. Pilsbury, 105 U. S. 278 :
184.
Louisiana v. Texas, 176 U. S. 1 : 159.
Louisiana Ey. & Navigation Co. v.
New Orleans, 235 U. S. 164:
184.
Louisville & Nashville Ey. v. Gar-
rett, 231 U. S. 298 : 339, 424.
LouisvUIe & Nashville Ey. v. Mel-
ton, 218 U. 8. 36 : 368.
Low Wah Suey v. Backus, 225 U.
S. 460:43.
Lowell V. Boston, 111 Mass. 454:
207, 213.
Luria v. United States, 231 U. S.
9: 104.
Luther v. Borden, 7 Howard, 42:
51, 148.
M
MacKenzie v. Wooley, 39 La. Ann.
944: 211.
Magoun v. Illinois Trust & Savings
Bank, 170 U. S. 283 : 366.
MaUinckrodt Chemical Works v. St.
Louis, 238 U. S. 41:11.
Marbury v. Madison, 1 Cranch. 137:
1.
Marshall v. Dye, 231 U. S. 250: 11.
Martin v. Hunter's Lessee, 1 Whea-
ton, 304: 142.
Martin v. Mott, 12 Wheaton, 29:
151, 152.
Martin v. Texas, 200 U. S. 316:
355.
Marvin v. Trout, 199 U. S. 212: 382.
Maxwell v. Dow, 176 U. S. 581: 116,
118, 338.
May & Co. v. New Orleans, 178 U.
S. 496 : 292.
Maynard v. Hill, 125 U. S. 190:
171.
McCabe v. A. T. & S. F. Ey., 235
U. S. 151 : 356.
McCray v. United States, 195 U. S.
27: IL
McCulloch V. Maryland, 4 Wheaton,
316: IS, 197, 199, 204, 209, SIS,
224, 225, 228, 230, 291, 363.
Mcllvaine v. Coxe's Lessee, 4
Cranch. 209 : 104.
McKane v. Durston, 153 U. S. 684:
338.
McLean v. Arkansas, 211 U. S. 539:
413.
McMUlen v. Anderson, 95 U. S.
37: 337.
Meriwether v. Garrett, 102 U. S.
472: 156.
Michigan Sugar Co. v. Auditor Gen-
eral, 124 Mich. 674: 211.
Miller v. Texas, 153 U. S. 535: 413.
Miller v. Wilson, 236 U. S. 373 : 369.
Milwaukee Electric Ey. v. Milwau-
kee, 87 Fed. 577:421.
Minnesota v. Barber, 136 U. S. 313:
IL
Minnesota v. Hitchcock, 185 U. S.
373 : 159.
Minnesota Iron Co. v. Kline, 199 U.
S. 593 : 407.
Minnesota Eate Cases, 230 U. S.
352 : 308, 400, 426.
Minor v. Happersett, 21 Wallace,
162: 76, 119.
Missouri v. Illinois and the Sanitary
District, 180 U. S. 208 : 154, 156,
159.
436
TABLE OP CASES
Missouri v. Iowa, 7 Howard, 660:
159.
Missouri v. Lewis, 101 U. S. 22:
325.
Missouri, Kansas & Texas By. v.
Cade, 233 U. S. 642: 369.
Missouri, Kansas 4" Texas By. v.
May, 194 U. S. 267:365.
Missouri Pacific R7. v. Mackey, 127
V. S. 205:365.
Missouri Pacific Ey. v. Nebraska,
164 V. a. 403 : 211.
Montague & Co. v. Lowry, 193 U. S.
38:263, 279.
Moore-Mansfield Construction Co. v.
Electrical Installation Co., 234 U.
S. 619: 184.
Moore v. Sanford, 151 Mass. 285:
211.
Mugler v. Kansas, 123 U. S. 623:
377.
Mimn V. Illinois, 94 U. S. 113: 379,
41S.
Murray v. Charleston, 96 U. S. 432 :
184.
Murray v. Hoboken Land Co., 18
Howard, 272 : 320, 337.
Musgrove v. Chun Teeong Loy, L. E.
1891, App. Cases, 272 : 40.
Muskrat v. United States, 219 U. S.
346: 11.
Mutual Film Corporation v. Indus-
trial Com. of Ohio, 236 U. S. 230:
413.
Mutual Loan Co. v. Martell, 222 U.
S. 225:413.
N
Nathan v. Louisiana, 8 Howard,
73: 263.
National Bank v. Commonwealth, 9
WaUace, 353 : 219.
National Bank v. United States,
101 U. S. 1: 200.
Neal V. Delaware, 103 U. S. 370:
97, 123, 359.
Neeley v. Henkel, 180 U. S. 109:
152.
Nelson v. St. Martin's Parish, 111
U. S. 716:184.
New Hampshire v. Louisiana, 108
U.S. 76:159.
New Jersey v. WUson, 7 Cranch,
164: 171.
New Orleans Canal & Banking Co.
V. Heard, 47 La. Ann. 1679 : 11.
New Orleans Gas Co. v. Louisiana
Light Co., 115 U. S. 650: 380.
New Orleans Ey. v. New Orleans,
157 U. S. 219:184.
New Orleans Water Co. v. Eivers,
115 U. S. 674: 171.
New Orleans Waterworks Co. v.
Louisiana Sugar Befining Co., 125
U. S. 18: 184.
New Jersey v. New York, 5 Peters,
284: 159.
New York v. Miln, 11 Peters, 102:
411.
New York v. Van De Carr, 199 U.
S. 552:373.
New York & New England Ey. v.
Bristol, 151 U. S. 556: 404.
New York Life Ins. Co. v. Cravens,
178 U. S. 389: 253.
New York Life Ins. Co. v. Deer
Lodge County, 231 U. S. 495: 253.
New York, New Haven & Hart-
ford Ey. V. New York, 165 U. S.
628:405.
Nishimura Ekiu v. United States,
142 U. S. 651 : 36, 40.
Noble State Bank v. Haskell, 219 U.
S. 104: 413.
Nobles V. Georgia, 168 U. S. 398:
337.
Norfolk & Western Ey. v. Pendle-
ton, 156 U. S. 667: 178.
Norfolk & Western Ey. v. West
Virginia, 236 U. S. 605: 425.
North Dakota v. Nelson Co., 1 No.
Dak. 88 : 211.
Northern Pac. By. v. North Dakota,
236 U. S. 585: 4gl.
Northwestern Fertilizer Co. v. Hyde
Park, 97 U. 8. 659 : 170, 373.
Norton v. Shelby County, 118 U. S.
425: 11.
TABLE OP CASES
437
Ogden V. Saunders, 12 Wheaton,
213: 184.
Ohio Oil Co. V. Indiana, 177 U. S.
190:413.
Ohio Tax Cases, 232 U. S. 576 : 369.
Olcott V. Fond du Lac County, 16
Wallace, 678 : 208, 211.
Old Wayne Life Association v.
McDonough, 204 U. S. 8 : 324.
Oliver v. Worcester, 102 Mass. 489:
233.
Omaha v. Omaha Water Co., 218 U.
S. 180:426.
O'Niel V. Vermont, 144 V. S. 323:
118.
Oregon v. Hitchcock, 185 U. S. 373 :
159.
Orient Ins. Co. v. Daggs, 172 U. S.
557:366.
Oshforn v. Bank of the United
States, 9 Wheaton, 738 : 102, 104,
132, 199, 219.
Osborne v. Adams County, 106 U.
S. 181: 211.
Otis V. Parker, 187 U. S. 606: 382.
Owensboro v. Owensboro Water-
works Co., 191 U. S. 358: 177.
Owensboro National Bank v. Owens-
boro, 173 U. S. 664: 220.
Pace V. Alabama, 106 U. S. 583:
356.
Pacific Insurance Co. v. Soule, 7
WaUace, 434: 222.
Pacific Telephone Co. v. Oregon, 223
U. S. 118 : 152.
Parkersburg v. Brown, 106 U. S.
487: 21L
Passenger Cases, 7 Howard, 283:
44, 263.
Patsone v. Pennsylvania, 232 TJ. S.
138 : 367.
Patterson v. Kentucky, 97 U. S.
501 : 38L
Paul V. Virginia, 8 Wallace, 168:
SSI.
Pearcy v. Stranahan, 205 U. S. 257:
152.
Penniman's Case, 103 U. 8. 714:
184.
Pennoyer v. Neff, 95 U. S. 714: 324.
Pennsylvania v. Wheeling Bridge
Co., 13 Howard, 519: 263.
Pensaeola Tel. Co. v. Western Union
Tel. Co., 96 U. S. 1: S54.
People v. Hartford Life Ins. Co.,
252 lU. 398 : 421.
People V. Salem, 20 Mich. 452 : 208,
21L
Phalen v. Virginia, 8 Howard, 163:
315.
Philips v. Savage, Acts of the Privy
Council, III, 432: 8.
Picard v. E. T., Va. & Ga. Ky., 130
U. S. 637: 178.
Pipe Line Cases, 234 U. S. 548 : 420.
Piqua Bank v. Knoop, 16 Howard,
369: 171.
Plessy V. Ferguson, 163 TJ. S. 537:
355.
Flumley v. Massachusetts, 155 U. S.
461:407.
Plymouth Coal Co. v. Pennsylvania,
232 U. S. 531 : 407.
Poindexter v. Greenhow, 114 TJ. S.
270: 132, 195.
Pollock V. Farmers' Loan 4" Trust
Co., 158 U. S. 601 : 11, S38.
Powell V. Pennsylvania, 127 TJ. S.
678:373.
Presser v. Illinois, 116 TJ. S. 252:
118.
Prince V. Crocker, 166 Mass. 347:
211.
Providence Bank v. Billings, 4
Peters, 514: 171, 175.
Public Clearing House v. Coyne, 194
U. S. 497: 338.
Public Service Gas Co. v. Public
Utility Board, 84 N. J. Law, 463 :
427.
Purity Extract Co. v. Lynch, 226 U.
8. 192: 292, 368.
Q
Quong Wing v. Kirkendall, 223 U.
S. 59: 366.
438
TABLE OF CASES
K
Eailroad Commission Cases, 116 U.
S. 307: 177.
Eailroad Commission v. L. & N. Ey.,
140 Ga. 817: 339.
Eailroad Commission of La. v. Cum-
berland Tel. & Tel. Co., 212 U. S.
414: 426.
Eailroad Co. v. Eusen, 95 U. S. 465 :
370.
Eailroad Co. v. Eichmond, 19 Wal-
lace, 584: 311.
Easmussen v. United States, 197 TJ.
S. 516: 79, 373.
Eeagan v. Farmers' Loan & Trust
Co., 154 U. S. 362: 132, 425.
Eees V. City of Watertown, 19 Wal-
lace, 107 : 156.
Eeetz V. Michigan, 188 U. S. 505:
337.
Eeid V. Colorado, 187 U. 8. 137: 373.
Eeynolds v. United States, 98 U. S.
145: 65.
Ehode Island v. Massachusetts, 12
Peters, 657 : 155.
Ehodes v. Iowa, 170 U. S. 412 : 292,
388.
Eobbins v. Shelby County Taxing
District, 120 U. S. 489: 292, 400.
Eochester Ey. v. Eochester, 205 U.
S. 236: 178.
Boiler V. Holly, 176 U. S. 398: 324,
328.
Eoss V. Oregon, 227 U. S. 150:' 184.
Eossi V. Pennsylvania, 238 U. S. 62 :
388.
Eussell V. Sebastian, 233 U. S. 195 :
184.
8
San Diego Land & Town Co. v.
Jaspar, 189 U. S. 439:424, 425,
426.
San Diego Land Co. v. National
City, 174 U. S. 739:420.
Sands v. Manistee Eiver Improve-
ment Co., 123 U. 8. 288 : 420.
Santa Clara County v. So. Pac. Ey.,
118 U. 8. 396: 359.
SehoUenberger v. Pennsylvania, 171
U. S. 1 : 373.
Scott V. McNeai, 154 U. 8. 34: 324.
Scott V. Sandford, 19 Howard, 393:
70, 72, 80, 97, 103.
Searles v. Mann Co., 45 Fed. 330:
420.
Second Employers' Liability Cases,
223 U. S. 1 : 279, 308.
Shanks v. Dumont, 3 Peters, 242:
104.
Sharpless v. Mayor, 21 Pa. St. 147:
207.
Sherlock v. AUing, 93 U. 8. 99: 409.
Shreveport Case, 234 U. S. 342:
306.
Skaneateles Water Works Co. v.
Skaneateles, 184 U. S. 354: 177.
Slaughter House Cases, 16 Wallace,
36: 97, 104, 116, 117, 352.
Sligh V. Kirhwood, 237 U. S. 52 : 410.
Smith V. Alabama, 124 U. 8. '465 :
406.
Smith V. Daniels, 118 Minn. 155:
350.
Smyth V. Aines, 169 U. 8. 466 : 426.
Soon Hing v. Crowley, 113 U. 8.
703 : 359.
South Carolina v. United States, 199
U. S. 437: «9.
South Dakota v. North Carolina, 192
U. S. 286: IBS.
Southern Pacific Co. v. Campbell,
230 U. 8. 537: 177.
Southern Ey. v. Greene, 216 U. S.
400:365.
Southern Ey. v. Eeid, 222 U. S. 424:
402.
Spies V. lUinois, 123 U. 8. 131: 116.
Spring Valley Water Works v.
Schottler, 110 U. S. 347: 420.
State Tax on Ey. Gross Eeceipts, 15
Wallace, 293 : 420.
State V. Bartlett, 55 Me. 200:326.
State V. Bridgeman & Eussell Co.,
117 Minn. 186:366.
State V. CarroU, 38 Conn. 449: 11.
State V. Drayton, 82 Neb. 254 : 366.
State V. Edwards, 88 Me. 102: 421.
State V. Fairmont Creamery, 153
Iowa, 702 : 366.
TABLE OF CASES
439
State V. Height, 117 Iowa, 650: 115,
323.
State V. Jacksonville Terminal Co.,
41 Fla. 363 : 421.
State V. Julow, 129 Mo. 163 : 350.
State V. Manuel, 4 Devereaux and
Battle, 20 : 85.
State V. Osawkee Township, 14 Kan-
sas, 418: 211.
State V. Snitzler, 143 Mo. 287: 211.
State V. Standard Oil Co., Ill Minn.
85: 366.
State V. "Wapello Co., 9 Iowa, 308:
207.
State V. Zdanowicz, 69 N. J. L. 308 :
115.
State Freight Tax, 15 Wallace, 232 :
292.
St. Louis & iron Mountain Ey. v.
Taylor, 210 U. S. 281:279.
St. Louis Southwestern Ey. v. Ar-
kansas, 235 U. S. 350: 11, 347.
Steenerson v. Great Northern Ey.,
69 Minn. 353 : 427.
Stone V. Farmers ' Loan & Trust Co.,
116 V. S. 307:373.
Stone V. Mississippi, 101 IT. S. 814:
170, 315, 380.
Stourbridge Canal v. "Wheeley, 2
Barn. & Adol. 793 : 173.
Strader v. Graham, 10 Howard, 82:
92.
Strauder v. West Virginia, 100 U. S.
303 : 97, 351.
Sturges v. CrowninsMeld, 4 Whea-
ton, 122: 178.
Sturges & Burn Mfg. Co. v. Beau-
champ, 231 U. S. 320: 368.
Talton V. Mayes, 163 U. S. 376: 79.
Tarlle's Case, 13 Wallace, 397:53.
Taylor and Marshall v. Kentucky,
178 V. S. 548 : 152.
Tennessee v. Sneed, 96 U. S. 69:
184.
Terlinden v. Ames, 184 U. S. 270:
152.
Texas v. White, 7 Wallace, 700 : 46.
Texas & Pacific Ey. v. Interstate
Commerce Commission, 162 XJ. S.
197: 279.
The Daniel Ball, 10 Wallace, 557:
292, 308.
The Divina Pastora, 4 Wheaton, 52 :
152.
The Exchange, 7 Cranch, 116 : 98.
The Nereide, 9 Cranch, 388 : 152.
The Pelican, Edw. Adm., App. D:
153.
The Santissima Trinidad, 7 Whea-
ton, 283 : 152.
The Three Friends, 166 U. S. 1 : 152.
The Winnebago, 205 XJ. S. 354: 11.
Thompson v. Union Pacific Ey., 9
Wallace, 579 : 220.
Thompson v. Utah, 170 U. S. 343:
79.
Thorpe v. E. & V. Ey., 27 Vt. 143:
373, 415.
Tiaco V. Forbes, 228 U. S. 549 : 41.
Tiger v. Western Investment Co.,
221 U. S. 286: 152.
Tindal v. Wesley, 167 U. S. 204: 132.
Township of Pine Grove v. Talcott,
19 Wallace, 666: 184.
Trade Mark Cases, 100 U. S. 82: 11.
Trebilcock v. Wilson, 12 Wallace,
687:- 204.
Trevett v. Weeden, 10.
Twining v. State of New Jersey, 211
U. S. 78 : 114, 319.
V
Union Pacific Ey. v. Peniston, 18
Wallace, 5 : 220.
United States v. Ah Fawn, 57 Fed.
591 : 41.
United States v. Arredondo, 6
Peters, 691 : 152.
United States v. Bitty, 208 U. S.
393 : 41.
United States v. Cruikshank, 92 U.
S. 542: 103, 117, 119.
United States v. Brig William, 2
Hall's Law Journal, 255: 318.
United States v. D. & H. Ey., 213
U. 8. 366 : 10, 279, 318.
United States v. E. C. Knight Co.,
156 U. S. 1 : S53.
440
TABLE OP CASES
United States v. Holliday, 3 Wal-
lace, 407: 152, 318.
United States v. Joint Traffic Asso-
ciation, 171 U. S. 505.
United States v. Ju Toy, 198 U. S.
253 : 337.
United States v. Kagama, 118 U. S.
375:35, 103.
United States v. Laws, 163 U. S.
258:40.
United States v. Lee, 106 U. S. 196 :
159.
United States v. Michigan, 190 U.
S. 379: 156, 159.
United States v. North Carolina, 136
U. S. 211: 155, 156, 159.
United States v. Northern Securi-
ties Co., 193 U. S. 197: 279.
United States v. Ormsbee, 74 Fed.
207:421.
United States v. Palmer, 3 Wheaton,
610: 152.
United States v. Realty Co., 163 U.
S. 427: 11, 152.
United States v. Eeese, 92 U. S.
214: 119.
United States v. Eeynolds, 235 U. S.
133 : 11.
United States v. Bodgers, 191 Fed.
970: 41.
United States v. Sandoval, 231 U.
S. 28 : 103.
United States v. Scott, 148 Fed.
431 : 350.
United States v. Texas, 143 U. S.
621: 155, 159.
United States v. Trans-Missouri
Freight Assoc, 166 U. S. 290:
263, 279.
United States v. WaddeU, 112 U. S.
76: 117.
United States v. Williams, 194 U. S.
279: 40.
United Stat»s v. Williams, 203 Fed.
155: 4L
United States v. Wong Kim Arlc,
169 U. S. 649:94, 106.
United States v. Yong Tew, 83 Fed.
832:41.
Van Allen v. Assessors, 3 Wallace,
573 : 220.
Vance V. Vandercook Co., 170 U. S.
438:229.
Van Sicklin v. Burlington, 27 Vt.
70:211.
Veazie Banlc v. Fenno, 8 Wallace,
533 : 199, 200, 3S0, 228.
Vicksburg v. Vicksburg Water Co.,
202 U. S. 453 : 171.
Virginia v. Rives, 100 U. S. 313:
119, 355.
Virginia v. Tennessee, 158 U. S.
267: 159.
Virginia v. West Virginia, 238 U. S.
202: 159.
W
Wabash Ey. v. Defiance, 167 U. S.
88: 407.
Wadley Southern My. v. Georgia,
235 U. S. 651 : 338.
Walker v. Sauvinet, 92 U. S. 90:
118.
Walker v. Shasta Power Co., 160
Fed. 856: 421.
Walker v. Whitehead, 16 Wallace,
314: 184.
Ware & Leland v. Mobile County,
209 U. S. 405: 263.
Warren v. Charlestown, 2 Gray, 84:
242.
Webster v. Eeid, 11 Howard, 437:
65, 328.
Welch V. Swasey, 214 U. S. 91 : 413.
West V. Louisiana, 194 U. S. 258:
118.
Western Turf Assoc, v. Greenberger,
204 U. S. 359: 413.
Western Union Tel. Co. v. CaU Pub-
lishing Co., 181 U. S. 92: 420.
West V. Louisiana, 194 U. 8. 258:
118.
Weston V. Charleston, 2 Peters, 449 :
199, 220.
Wheeler v. Jackson, 137 U. S. 245;
184.
TABLE OP CASES
441
Whiting V. Pond du Lac, 25 Wis.
188: 207, 209.
WUey V. Sinkler, 179 U. S. 58: 117.
WUkinson v. Leland, 2 Peters, 627:
328.
Willcox V. Consolidated Gas Co., 212
U. S. 19 : 339, 342, 425, 427.
Williams v. Fear, 179 U. S. 270: 263.
Williams v. Suffolk Insurance Co.,
13 Peters, 415: 152.
WiUson V. Blackbird Creek Marsh
Co., 2 Peters, 245: 392.
Wilmington Transportation Co. v.
Cal. E. E. Com., 236 U. S. 151:
310.
Wilson V. Eureka City, 173 U. S.
32: 413.
Winthrop v. Lechmere, 5 Mass. Hist.
Soe. CoU. (6th Series), 440: 8.
Wisconsin v. Pelican Insurance Co.,
127 U. S. 265: 159.
Woodruff V. Parham, 8 Wallace,
123: 263, 292.
Woodruff V. TrapnaU, 10 Howard,
190: 195.
Worcester v. Georgia, 6 Peters, 515:
103, 147.
Y
Yamataya v. Fisher, 189 XJ. S. 86:
41, 338.
Yiclc Wo V. EopUns, 118 TJ. S. 356 :
76, 101, 112, 356.
Z
Zillmer v. Kreutzberg, 114 Wis.
530:350.
INDEX
ALIENS, constitutional rights of, 76, 101 ; exclusion of, 36, 41 ; expulsion
of, 38, 41.
ALLEGIANCE, 95, 101, 104.
ANNEXED TEEEITOEY, citizenship of inhabitants, 104; power to admit
to Union, 68, 75, 78; power to govern, 60, 90.
ANTI-TBUST ACT OP 1890, 258, 262, 279, 310.
ANTI-TEUST ACT OF 1914 (Clayton Act), 279.
AETICLES OF CONFEDERATION, government under, 127, 146, 159,
196, 247, 251, 282, 288.
BANK, power of Congress to incorporate, 13 26, 199.
BANKEUPTCY LAWS, 179 seq., 184.
BILL OF EIGHTS, Federal, 118, 319, 329.
BILLS OF CEEDIT, 186 seq., 191 seq., 201, 223.
CAHEIEES. See Public Callings.
CHAETEE, as a contract, 162-169; construction of, 172 seq.; reservation
of right to amend or repeal, 170.
CHINESE, citizenship of, 94, 101, 102; discrimination against, 356 seq.
CITIZENSHIP, based on birth, 95, 101; based on naturalization, 60, 75,
83, 101, 102, 104; effect of Fourteenth Amendment on, 97 seq., 106;
effect of slavery on, 81 seq., 103 ; of Indians, 103 ; of United States and
State, distinguished, 83, 101, 103, 106, 116.
CLASS LEGISLATION, 360-369, 397.
COMMEECE, interstate and foreign, regulation of, 46, 245-318, 383, 385,
390, 400, 404, 420; adoption of State law by Congress, 269 seq., 295
seq.; concurrent or exclusive control of, 266, 296, 383; control of Con-
gress over, 263, 289-296, 302, 307-313, 315, 371, 383, 390, 411; control
of States over, 264, 296, 307, 371 seq., 383 ; effect of ' ' silence of Con-
gress," 384, 388, 392; includes contracts in restraint of trade, 311,
contracts of purchase and sale, 259, intercourse, 248, 254, navigation,
248, 266, 294, 390, telegraph, 254, transportation, 385; relation of
State police power to, 268, 371 seq., 383 seq., 390 seq., 400, 404, 409, 411 ;
regulation, what is, 265, 294, 308, 310-318, 372; regulation by embargo
or prohibition, 249, 314-318.
CONSTITUTION OF THE UNITED STATES, construction of, 141, 146,
247 305 333.
CONSTITUTIONALITY OF EXECUTIVE OB LEGISLATIVE ACTS,
3-12; acts unconstitutional in part, 242; appeals from colonial courts
to the King in Council, 7-9 ; effect of an unconstitutional act, 11 ; legis-
lation against common right, 327, 334; power of courts to determine,
4-6, 140; rules governing action of the courts on, 10, 11.
CONTEACT, restraints on freedom of, 344 seq., 350, 374, 403 ; impairment
of obligation of, 160 seq.; obligation of, 178, 184; power to tax, 222.
CUREENCY, power of Congress over, 200, 223.
DUE PEOCESS OF LAW, 90, 111, 114, 319-350, 374, 396; equivalent to
"law of the land," 320, 326; permits variations in procedure, 337;
requires an ascertainable standard of conduct, 330 seq., jurisdiction,
323, notice and opportunity to be heard, 324, opportunity for a judi-
cial determination, 340.
ELEVENTH AMENDMENT, 131, 137.
EQUAL PROTECTION OP THE LAWS, 111, 351-369, 374, 395, 397, 398.
FIFTEENTH AMENDMENT, 120 seq.
FIFTH AMENDMENT, 335, 344.
FLORIDA, cession of, 60, 69.
FOREIGN STATE, what is a, 143 seq.
443
444 INDEX
rOURTEBNTH AMENDMENT, 67, 97, 102, 105, 109, 114, 116, 328, 329,
335, 348, 352, 357, 361, 364, 367, 374, 378, 414; not restricted to pro-
tection of citizens, 357, or of negroes, 112; view of Congress as to
meaning of, 113.
FRANCHISES, construction of, 173 seq.
GOVERNMENT OF THE UNITED STATES, nature of, 3, 15, 43, 45,
47, 54, 57, 66, 77, 83, 109, 139, 140, 190, 231, 237, 256, 372, 384; source
of, 14; supremacy of, 16, 38, 54, 141, 217, 227, 231, 303.
HAMILTON, ALEXANDER, on implied powers, 28; on power of courts
to declare legislation invalid, 10; on inherent or "resulting" powers,
34; on suits by an individual against a State, 131.
HAWAII, cession of, 69.
IMPLIED POWERS, 12, 18, 28, 34.
INDIANS, constitutional rights of, 359; political status of, 143 seq.
INDICTMENT BY GRAND JURY, 324 seq. 332 seq.
INFORMATION, substituted for indictment, 324, 336.
INHERENT POWERS of the Federal Government, 12, 34-36, 40, 60, 96.
201, 203, 304.
INSOLVENCY LAWS, 180 seq.
INSURANCE is not commerce, 252 seq.
INTERNATIONAL RELATIONS, 36-38.
INTERSTATE COMMERCE ACT, 279.
JUDICIAL POWER OP THE UNITED STATES, 2, 4, 6, 10, 55, 61, 72,
128, 133, 143.
JUDICIARY, function of, 137, 141 ; power to compel a levy of taxes, 156 ;
to enforce judgments, 156; to prevent a violation of the law, 303; to
protect contracts, 161.
JUDICIARY ACT OF 1789, 138, 142.
JURISDICTION OF UNITED STATES COURTS, appellate, 139; origi-
nal, 153; over political questions, 150; over suits between States, 153
seq.
JURY TRIAL, right to, 63 seq., 354; in the District of Columbia, 62; in
the States, 118, 324; in the Territories,' 65.
JUSTICIABLE CONTROVERSIES, 147.
"LAW OF THE LAND," 320, 826.
LEGAL TENDER NOTES, 195, 202 seq.
LIBERTY, meaning of, 312, 343, 346, 357.
LIQUOR TRAFFIC, control of, 229, 377; relation to interstate commerce,
384; code of Hammurabi on, 388; legislation of Congress on, 388.
LOTTERIES, regulation of, 314 seq., 380.
LOUISIANA, purchase of, 67.
MADISON, on suits against a State, 131; on paper money, 197.
MAGNA CHARTA, 320, 322, 326, 333, 414.
MISSOURI COMPROMISE, 89.
MANUFACTURE is not commerce, 259 seq.
MONEY, 185 seq. ; power to borrow, 198. 201 ; power to coin, 201, 203.
NATURALIZATION, 83, 98, 101, 103, 104.
"NECESSARY AND PROPER," 19-27, 203, 247.
NEGRO, status of, 82 seq., 103, 106 ; protected by Fourteenth Amendment,
112, 352 ; exclusion from jury-service, 351 seq.
ORDINANCE OF 1787, 393.
ORIGINAL PACKAGE, 286, 292, 387.
PILOTAGE LAWS, 270, 293, 295, 298, 300.
POLICE POWER, nature of, 370, 375, 380, 411 seq., 415; of the States, 268,
316, 347, 362, 372, 391; of the United States, 316; preservation of
safety and order, 389-407 ; promotion of general welfare, 395, 407-413 ;
protection of health, 370-377; protection of morals, 377-389; regula-
tion of public callings, 413-427; relation to liquor traffic, 378 seq.;
relation of Fourteenth Amendment to, 362, 380.
POLITICAL QUESTIONS, 39, 40, 148 seq.
PORTO RICO, status of, 66, 103.
PRIVILEGES AND IMMUNITIES, of citizens of the United States, 43,
44, 84, 104 seq., 110, 114, 116 seq.; of citizens of the States, 88, 108;
of citizens of annexed territory, 60, 67, 75.
INDEX 445
PBOPBETY, deprivation of without due process, 360, 367, 379 seq., 403
seq. 416. f , , ,
PUBLIC CALLINGS, nature of, 416, 420, 422; restrictions on regulation
of, 422; warehouse companies, 417 seq.
PUBLIC SERVICE COMPANIES, 230; valuation of, 426-7.
BACE DI8CEIMINATI0N, 355, 356; exclusion of negroes from jury
service, 351 seq.; denial of laundry licenses to Chinese, 356-359.
BATES, regulation of, 307, 340, 422 seq.; basis of determining reasonable,
426-427; confiscatory, 422-427; discriminatory, 309.
EEPUBLICAN FOEM OF GOVEENMENT, 51, 74, 148, 152.
EESTEAINT OF TEADE, contracts in, 262.
SELF-INCEIMINATION. See witness against one's self.
SLAVEEY IN THE UNITED STATES, abolition of, 50, 67; bearing upon
citizenship, 81 seq.; effect of residence in free territory, 89, 92; pro-
hibition of in the Territories, 72, 90 ; nature of property in slaves, 91 ;
slave trade, 270.
STATES OF THE UNION, admission, 78; equality of, 53, 293; relation of
to the Federal Government, 18, 27, 44, 47, 56, 83, 109, 139, 141, 213,
225, 230, 267, 309, 372, 383; power to secede, 48, 53; power to tax
imports, 281 seq.; siiits against, 126, 129 seq., 133 seq., 153; what con-
stitutes a suit against, 132, 139.
SUFFEAGE, power of the States over, 122; right of free negroes to vote,
85, 88; relation to citizenship, 87; under the Fifteenth Amendment,
120 seq.
SUPBEME COUBT OF THE UNITED STATES, jurisdiction of, 2, 46,
49, 133 seq. 141, 153.
TAXATION, nature of, 207, 213; concurrent Federal and State power of,
267; limitations on State's power of, 42, 44, 202, 212-220, 282, 291,
292; of State liquor dispensaries, 230; of State banks, 220-224; of
agencies of government, 212-220, 224-228, 231, 233, 241; uniformity
of, 67, 74; direct, 220-221, 234-244; of income, 225, 239; of property of
a State, 229 seq.
TENTH AMENDMENT, 198, 316.
TBBBITOEIES, application of the Constitution in, 70, 72, 74, 76, 78;
incorporated and unincorporated, 70, 79 ; power of Congress in, 60 seq.,
70, 90; relation of to the United States, 66 seq., 73.
THIETEENTH AMENDMENT, 67.
TEEATY-MAKING POWEE, 59.
WAB-POWEB OF THE UNITED STATES, 55, 59; suppression of the
rebellion, 49.
WASHINGTON, GEOEGE, on revision of the Articles of Confederation,
251.
WBBSTEE, DANIEL, as to power of Congress to regulate commerce, 300 ;
as to meaning of "law of the land," 329, 336.
WITNESS AGAINST ONE'S SELF, 114, 319, 321, 325; history of ex-
emption in the United States, 115, 321; not a privilege of citizens of
United States, 118 seq.
WILSON, JAMES, on the inherent powers of the Federal Government, 34.
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Understanding 9/11