FOOTNOTES

Previous

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

2Art. i., 7: 2.

3The Supreme Court of Mississippi in Sproule v. Fredericks, 69 Miss. 898 (1892), decided that the Constitutional Convention of that State (1890) “wielded the powers of sovereignty specially delegated to it, for the purpose and the occasion, by the whole electoral body, for the good of the whole Commonwealth.” The Supreme Court of Pennsylvania in Wells v. Bain, 75 Pa. St. 39 (1874), decided that the Convention of 1872 was “not a co-ordinate branch of the government,” and possessed only “delegated powers.” The Supreme Court of the United States, through Marshall, C.J., decided in McCulloch v. Maryland, 4 Wheaton, 316 (1819), that the Constitution which came from the hands of the Federal Convention of 1787 “was a mere proposal, without obligation, or pretensions to it. By the Convention, by Congress, and by the State Legislatures, the instrument was submitted to the people. They acted upon it, in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. It is true they assembled in their several States; and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments. From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is “ordained and established” in the name of the people; and is declared to be ordained, “in order to@ form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity.” The assent of the States in their sovereign capacity is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived by the State governments. The Constitution when thus adopted was of complete obligation, and bound the State sovereignties.” The character of the Constitution, its purport and principles, is examined in Martin v. Hunter’s Lessee, 1 Wheaton, 304 (1816). Decision by Story, J.

4No. xxxix.

5Art. v.

6Constitution (1780 to date) Pt. I. Art. iv. The words “substitutes and agents” may be considered equivalent to the modern words “administrative officers.”

7Art. iv., 4.

8McCulloch v. Maryland, note, supra.

9McCulloch v. Maryland, note, supra.

10Idem. (The language of the Court slightly paraphrased.)

11Art. v.

12The Federalist, No. lxii.

13McCulloch v. Maryland.

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

15McCulloch v. Maryland.

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

17The License Cases, 5 Howard, 504 (1846); Kimmish v. Ball, 129 U.S., 217 (1889); Cook v. Marshall Company, 196 U.S., 261.

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

19Art. iv. (and preceding note).

20See also Chapters XII and XIII.

21Barron v. Baltimore, 7 Peters, 243 (1833).

22No. xxxix.

23Cohens v. Virginia, 6 Wheaton, 382 (1821). Madison’s thought is incorporated into Weston et al. v. the City of Charleston, 2 Peters, 466 (1829.)

24The Federalist, No. lxxxii.

25Gallatin’s Writings, i., 11.

26Sustained by Downes v. Bidwell, 182 U.S., 244 (1901).

27The American Insurance Company v. Canter, 1 Peters, 511 (1828).

28Compare the Preamble. The entire discussion in The Federalist is of the conformity of the Constitution to a republican government and of the necessity of governmental powers adequate to governmental purposes.

29Art. x.

30Marbury v. Madison, 1 Cranch, 176 (1803).

31Every question in constitutional law, in the United States, sooner or later leads back to a question of sovereignty. What that sovereignty is can be known only by its operation,—that is, by political experience. What powers are delegated by the Constitution is the question answered (at least in part) by courts of law and legislatures, by publicists and by the actual administration of government. Widely divergent interpretations of that sovereignty and that law have been held throughout our history as a nation. These divergent opinions are recorded in the Debates during the formation and ratification of the Constitution; in the discussions incident to the Kentucky and Virginia Resolutions of 1798; in the discussions relating to Nullification, in 1833; again in 1860 and immediately prior; and in various decisions of the Supreme Court of the United States. Chief Justice Marshall’s decisions (some thirty-six in number), the opinion of that Court in his time, remain the classic interpretation of national sovereignty. The Federalist remains the classic contemporaneous interpretation of the Constitution.

The issue involved is, fundamentally, one of functions, and is viewed at different times with different understandings. As a practical question, it is one of jurisdiction as legally understood, but as a question of service as politically understood. Here enter many and diverse factors as morals, industry, communal interest, public safety, social needs, and the like. Questions growing out of these are not and cannot be decided finally by any generation. Each generation interprets these factors. Thus constitutional interpretation becomes, not a fixed quantity, but an adjustment to reason and necessity. Prudence dictates that interpretation be conservative. The constitutional and political history of America must be read along with its constitutional law. In addition to cases already cited in this chapter, the following may advantageously be read, though each contains matter of special application to other aspects of the subject: Ex parte Siebold, 100 U.S., 371 (1879); The Civil Rights Cases, 109 U.S., 3 (1883); Rogers v. Alabama, 192 U.S., 226 (1904).

32Marbury v. Madison, 1 Cranch, 177.

33Art. i., 1.

34Art. vi., 2.

35A typical formulation in Massachusetts, (1780) Pt. I., xxx. Discussed in Taylor v. Place, 4 R.I., 324 (1856.)

36McCulloch v. Maryland, 4 Wheaton, 316.

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

38“The Sources and Authorship of the Constitution,” in the author’s Constitutional History of the United States, iii., 464–515.

39Art. i., 8: 1.

40Art. i., 9: 2.

41Id., 3.

42Id., 5.

43Id., 6.

44Id., 7.

46Pennsylvania, 1873, Art. i., 26.

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

48It will be profitable to compare this amendment with the doctrine laid down in Marbury v. Madison, 1 Cranch, 137. See also The Reconciliation of Government and Liberty, J.W. Burgess (1915).

49The fundamental principle of judicial interpretation is laid down in Marbury v. Madison; the principle is examined in the Chapter on The Law of Judicial Power.

50Art. iii.

51This point is elaborated and examined by the Supreme Court in the decision declaring the Civil Rights Bill of April 9, 1866, unconstitutional. Civil Rights Cases, 109 U.S., 3 (1883). The doctrine annunciated is that Congress has no power to legislate generally upon subjects, power over which is reserved to the States by the Tenth Amendment.

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

53In this connection as to the President see Field v. Clark, 143 U.S., 649 (1892).

54Art. i., 8: 18.

55Preamble. As to “necessary and proper,” see United States v. Fisher, 2 Cranch, 396; McCulloch v. Maryland, 4 Wheaton, 421.

56U.S. v. Fisher, supra.

57The great opinions interpretative of the Constitution have each their historical setting. Illustration of this is given in the annotated editions of Marshall’s decisions, e.g., J.P. Cotton’s edition, 2 vols. 1905.

58For a detailed history of the first fifteen amendments see the author’s Constitutional History of the United States; the social and political history from 1789 to 1870 are related, respectively, by John Bach McMaster in his History of the People of the United States, and by James Schouler in his History of the United States. J.F. Rhodes in his History of the United States from the Compromise of 1850, 7 vols. (1850–1877), gives the history of congressional legislation and of judicial interpretation during the period. Much of the history relevant to the great decisions of the Court is given in the decisions.

59McCulloch v. Maryland, 4 Wheaton, 316 (1819). Many later decisions apply this principle.

For an examination of the character and scope of the Legislative Department, see

Taylor v. Place, 4 R.I., 324 (1856); Dalby v. Wolf, 14 Iowa, 228 (1862); Stone v. City of Charleston, 114 Mass., 214 (1873); Barrno v. Baltimore, 7 Peters, 243 (1833); Calder v. Bull, 3 Dallas, 386 (1798).

The powers of Congress over taxation, commerce, the currency, war, territories, outlying possessions, etc., are particularly examined under appropriate headings in later chapters.

In addition to cases cited in the present Chapter, and to the above, and relating to the powers of Congress, see Gibbons v. Ogden, 9 Wheaton, 1 (1824); The Mayor, etc., of the City of New York v. Miln, 11 Peters, 102 (1837); The License Cases, 5 Howard, 504 (1847); Sinnot v. Davenport, 22 Howard, 227 (1859); Gilman v. Philadelphia, 3 Wallace, 713 (1865); Henderson et al. Mayor of the City of New York, et al. Commissioners of Immigration v. North German Lloyd, 92 U.S., 259 (1875); Hull v. De Cuir, 95 U.S., 485 (1877); Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S., 1 (1877); County of Mobile v. Kimball, 102 U.S., 691 (1880); Williamette Iron Bridge Co. v. Hatch, 125 U.S., 1 (1888).

The best brief treatise on the legislative in America is American Legislatures and Legislative Methods, by Paul S. Reinsch, 1907; the most exhaustive and authoritative treatise is Constitutional Limitations, by Thomas M. Cooley. The general powers of Congress are discussed by Justice Story in his Commentaries on the Constitution, and by Chancellor Kent in his Commentaries on American Law.

See also the authorities cited in the present work on The Law of the Judicial Power.

60No. xvi.

61No. xxxi.

62McCulloch v. Maryland, 4 Wheaton, 316 (1819).

63The Federalist, xxxii.

64Idem. and Weaver v. Fegely, 29 Pennsylvania State, 27 (1857).

65Moore v. Houston, 3 S. and R. (Pa.), 179, and the cases cited in Weaver v. Fegely.

66See cases as under preceding note.

67Baldwin v. Hale, 1 Wallace, 223 (1863).

68Baldwin v. Hale, supra.

69Juilliard v. Greenman, 110 U.S., 421 (1884), citing and quoting McCulloch v. Maryland.

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

71Distinctions as to United States notes, coin, currency, legal tender, etc., are brought out in Juilliard v. Greenman, supra; Hepburn v. Griswold, 8 Wallace, 603 (1869); Parker v. Davis, 12 Wallace, 79 (1871); Trebilcock v. Wilson, 12 Wallace, 687 (1871).

72Knox v. Lee, Parker v. Davis, 12 Wallace, 554 (1871).

73An account of the struggles of political parties, and of the successive decisions of the Supreme Court as to Legal Tender Acts belongs to the history of the law rather than to a statement of the essentials of present constitutional law. Accounts of this struggle, available in histories of the United States, may be compared with Justice Stephen J. Field’s account in J. Norton Pomeroy’s Some Account of the Work of Stephen J. Field as a Legislator, State Judge, and Justice of the Supreme Court of the United States (1881), (Edition by George C. Gorham, 1895) pp. 65–86. Mr. Justice Field’s dissenting opinions from the decisions of the Supreme Court which sustain the constitutionality of the Acts are based largely on his conception of the principle of the obligation of a contract as contained in the Constitution respecting “gold and silver coin.” For the history of the Acts, the decision of the Court invalidating them (1869); the increase of the membership of the Court (1870); the reversal of the earlier decisions (1871), and the final decision in Juilliard v. Greenman (1883), consult Rhodes, vi., 268, 270–273, and Note.

74Art. i., 10: 1.

75Briscoe v. Bank of Kentucky, 11 Peters, 257 (1837).

76Darrington v. The Bank of Alabama, 13; Howard, 12 Briscoe v. Bank of Kentucky, supra.

77Art. i., 8: 6.

78Id. 5, 10: 1.

79United States v. Marigold, 9 Howard, 560 (1849); Fox v. Ohio, 5 Howard, 410.

80In re Rapier, 143 U.S., 110 (1892); Battle v. U.S., 209 U.S., 36.

81Wheaton v. Peters, 8 Peters, 591 (1834).

82Vanini et al. v. Paine et al. 1 Harr. (Del.) 65, quoted in Patterson v. Kentucky, 97 U.S., 501 (1878).

83Id. See also Herdic v. Roessler, 109 New York, 127 (1888); Hill and Co. Lmtd. v. Hoover, 220 U.S., 329. “Where a suit is brought on a contract of which a patent is the subject matter, either to enforce such contract, or to annul it, the case arises on the contract and not under the patent laws.” Hartell v. Tilghman, 99 U.S., 558. See also Dale Tile Mfg. Co. v. Hyatt, 125 U.S., 46 (1888).

84Rex v. Dawson, 5 State Trials.

85U.S. v. Smith, 5 Wheaton, 153 (1820).

86Art. iii., 2: 1.

87U.S. v. Rodgers, 150 U.S., 249 (1893).

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

89Brown v. U.S., 8 Cranch, 110; American Insurance Co. v. Canter, 1 Peters, 511; Lamar ex. v. Browne et al., 92 U.S., 187; Mormon Church v. U.S., 136 U.S., 1.

90Hepburn v. Ellzey, 2 Cranch, 445 (1804).

91Barron v. Baltimore, 7 Peters, 243 (1833).

92Metropolitan R.R. Co. v. District of Columbia, 132 U.S., 1 (1889).

93Ft. Leavenworth R.R. Co. v. Lowe, 114 U.S., 525 (1885).

94Art. iv., 3.

95Dorr v. U.S., 195 U.S., 138 (1904); Hawaii v. Mankichi, 190 U. S., 197 (1903); Dooley v. U.S., 183 U.S., 151 (1901); Downes v. Bidwell, 182 U.S. (1901); Rasmussen v. U.S., 197 U.S., Weems v. U.S., 217 U.S., 349. (But see dissenting opinions in above cases.)

96Downes v. Bidwell, supra, and cases and laws therein cited and quoted.

97Idem.

98There are powerful dissenting opinions in the various Insular Cases. The chief objection to the unlimited control of insular territory by Congress is that Congress itself, by the Constitution, possesses only limited powers. How can a limited Congress exercise unlimited powers?

99Downes v. Bidwell, supra. (The Court cites, in confirmation, the history of Congress and of the British Parliament.)

100Bank of Commerce v. New York City, 2 Black, 620 (1862) quoting from McCulloch v. Maryland, 4 Wheaton, 431 (1819). The principle is laid down in the decision that “the sovereignty of a State extends to everything which exists by its own authority, or is introduced by its permission; but it does not extend to these means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States.” Id. 429.

101Bank of Commerce v. New York City, supra.

102Loan Association v. Topeka, 20 Wallace, 655 (1874), quoting Cooley on Constitutional Limitations, 479.

103P.R. Co. v. Pennsylvania, 15 Wallace, 300 (1872). The constitutional use of the taxing power by the United States and by the several States is examined by Hamilton in The Federalist, No. xxxii.,—the classic contemporaneous exposition of the taxing clauses of the Constitution. For a judicial examination of these clauses see Transportation Company v. Wheeling, 99 U.S., 273 (1878). The idea held both by Hamilton and by the Court is that taxation is the exercise of sovereign power; that “all subjects over which the sovereign power of a State extends are objects of taxation,” but that “objects over which it does not extend, as for example, the means and instruments of the general government, are exempt from taxation.” (The quotation in Transportation Co. v. Wheeling, from McCulloch v. Maryland is not verbally accurate.)

104The phrase (Federalist, No. lxii.) may be Hamilton’s or Madison’s.

105P.R. Co., v. Pennsylvania, 15 Wallace, 300.

106This principle applies also in international law.

107The principle is established in McCulloch v. Maryland.

108Kirtland v. Hotchkiss, 100 U.S., 491 (1879).

109Kirtland v. Hotchkiss, supra. Thus, “If the law treats the mortgagee’s interest in the land as real estate for his protection, it is not easy to see why the law should forbid it to be treated as real estate for the purpose of taxation.” Savings and Loan Society v. Multnomah County, 169 U.S., 421 (1898).

110McCulloch v. Maryland, supra, quoted in The Collector v. Day, 11 Wallace, 113 (1870).

111The Collector v. Day, supra. (The Court quotes the Tenth Amendment, in this connection, as the basis of its decision.)

112Idem.

113The Collector v. Day, supra.

114Id.

115The Collector v. Day, supra.

116Id.

117Amendment XVI.

118Compare the effect of the Thirteenth Amendment, the Fourteenth and Fifteenth Amendments on the decision of the Supreme Court in Scott v. Sandford, 19 Howard, 393 (1857).

119To what extent a salaried official of a State is exempt from inclusion of his salary as income taxable under the Sixteenth Amendment is as yet not determined by judicial decision. “The corporate franchises, the property, the business, the income of corporations created by a State may undoubtedly be taxed by the State; but in imposing such taxes care should be taken not to interfere with or hamper, directly or by indirection, interstate or foreign commerce, or any other matter exclusively within the jurisdiction of the Federal government. This is a principle so often announced by the courts, and especially by this court (the Supreme Court of the United States) that it may be received as an axiom of our constitutional jurisprudence.” Philadelphia and Southern Steamship Company v. Pennsylvania, 122 U.S., 326 (1887).

120United States v. R.R. Co., 17 Wallace, 322 (1873).

121See the Chapter on The Law of Fundamental Rights, post.

122Wisconsin Central R.R. Co. v. Price County, 133 U.S., 496 (1890). As to exemptions, the decisions are conflicting. Not infrequently notices may be seen of exemption of manufacturing plants, or other industrials, from taxation, if they locate within a community. Mississippi in its constitution of 1890 made such exemptions by special ordinance. Such exemption has been held valid in Franklin Needle Co. v. Franklin, 65 N.H., 177; Florida Central Railway Co. v. Reynolds, 183 U.S., 476; Per contra, Brewer Brick Co. v. Brewer, 62 Maine, 62.

123Loan Association v. Topeka, 20 Wallace, 655 (1874); Kingman v. City of Brockton, 153 Mass., 255 (1891); an admirable note citing decisions as to a good tax may be found in L.B. Evans, Leading Cases on American Constitutional Law (Ed. 1916), p. 211.

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

125Art. i., 8: 1. Kentucky Railroad Tax Cases, 115 U.S., 321 (1885); Kelly v. Pittsburgh, 104 U.S., 78 (1881); French v. Barber Asphalt Paving Co., 181 U.S., 324 (1901); Veazie Bank v. Fenne, 8 Wallace, 533 (1869); Corporation Tax Cases, 220 U.S., 611 (1911).

126South Carolina v. United States, 199 U.S., 437 (1905). The State conducted dispensatories and derived profit from them. It was held liable for internal revenue. The exercise by the State, as a dispenser, was held not to exempt it from the operation of the law.

127Art. i., viii., 3.

128Brig Wilson v. U.S., 1 Brockenbrough, 437 (1820).

129See decision of the Supreme Court sustaining the “Webb-Kenyon” Law decommercializing (interstate) intoxicating liquors, Clark Distilling Company v. W. Md. R.R. Co.; Id. v. Am. Ex. Co. and State of W. Va. (January 8, 1917).

The power of Congress to deal with the hours of work and wages of employees engaged in interstate commerce is examined in Wilson v. New and Ferris, Receivers, Mo. Ok., & G. Railway Co., March 19, 1917. (Constitutionality of the “Adamson” law.)

130Art. vi., 2.

131Marbury v. Madison, 1 Cranch, 177 (1803).

132McCulloch v. Maryland, 4 Wheaton, 430 (1819).

133Brown v. Maryland, 12 Wheaton, 419 (1827).

134Gibbons v. Ogden, 9 Wheaton, 1 (1824).

135Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S., 1 (1877).

136So in Gibbon v. Ogden, supra.

137Henderson v. Mayor of New York, 92 U.S., 259 (1875); L.S. & M.S. Railway Co. v. Ohio, 173 U.S. (1899); Railroad Co. v. Husen, 95 U.S., 465 (1877); Brimmer v. Rebman, 138 U.S., 78 (1891); Morgan’s S.S. Co. v. Louisiana Board of Health, 118 U.S., 455 (1886); Leisy v. Hardin, 135 U.S., 100 (1890); Schellenberger v. Pennsylvania, 171 U.S., 1 (1898).

138The trend of these respective lines is disclosed by the decisions in the cases cited in this Chapter.

139Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S., 1 (1877). The important word here is “jurisdiction.” “To bring the transportation within the control of the State, as part of its domestic commerce, the subject transported must be within the entire voyage under the exclusive jurisdiction of the State.” Hanley v. Kansas City Southern Railroad Co., 187 U.S., 617 (1903). The Immigration Law (February 20, 1897, amended March 26, 1910), contains the protective features the State would demand through exercise of its police power. So too the Federal Meat Inspection Act (March 4, 1907).

140The Daniel Ball, 10 Wallace, 557 (1870).

141Act of Congress, March 2, 1893.

142“The insurance business does not constitute interstate commerce.” Paul v. Virginia, 8 Wallace, 168 (1868). But the power to regulate commerce doubtless includes legislation placing common carriers engaged in interstate commerce under such federal control as to constitute federal ownership of railroads, telegraph and telephone lines, steamships, sailing vessels, etc., etc. Such ownership is illustrated in France, Germany, Italy, Russia, and in other countries.

143The Sherman Anti-Trust Law of July 2, 1890, and decisions of the Supreme Court concerning it, are illustrations.

144See the Hours of Service Act (March 4, 1907); the Adamson Act (1916), and other acts indicative of the trend in the congressional exercise of the power.

145United States v. E.C. Knight Co., 156 U.S., 1 (1895).

146Art. i., 8: 3.

147Coe v. Errol, 116 U.S., 525.

148Kidd v. Pearson, 128 U.S., 1.

149Cooley v. Board of Wardens of the Port of Philadelphia, 12 Howard, 299 (1851).

150Escanaba Company v. Chicago, 107 U.S., 678 (1882).

151Harman v. Chicago, 147 U.S., 396 (1893).

152Sands v. Manistee River Improvement Company, 123 U.S., 238.

153Brown v. Maryland, 12 Wheaton, 419 (1827).

154Brown v. Maryland, 12 Wheaton, 419 (1827).

155Walton v. Missouri, 91 U.S., 275 (1875).

156The evil effect of discriminating State legislation, and the like, during the Articles of Confederation, are dwelt on by the Court in Walton v. Missouri, supra.

157Walton v. Missouri, supra.

158Robbins v. Shelby County Taxing District, 120 U.S., 489 (1887).

159Idem.

160Crutcher v. Kentucky, 141 U.S., 47 (1891).

161As by the act forbidding the transportation of lottery tickets through the mails.

162Crutcher v. Kentucky, 141 U.S., 47 (1891).

163Idem. Cases decisive of the police powers of a State are numerous. The principle involved may be deduced from Railroad Company v. Huson, 95 U.S., 465 (1877); Brimmer v. Rebman, 138 U.S., 78 (1891); Morgan’s S.S. Company v. Louisiana Board of Health, 118 U.S., 455 (1886); Leisy v. Hardin, 135 U.S., 100 (1890); L.S. and M.S.R.R. v. Ohio, 173 U.S., 285 (1899).

164Crutcher v. Kentucky, supra.

165Brown v. Houston, 114 U.S., 622 (1885), in which the cases are cited.

166Telegraph Company v. Texas, 105 U.S., 460 (1881).

167Leisy v. Hardin, 135 U.S., 100 (1890). An act of the Legislature, or a constitutional provision prohibiting the manufacture or sale of intoxicating liquors within a State, is an example of exercise of the police power by a State. See also Rhodes v. Iowa, 170 U.S., 412 (1898). Schellenberger v. Pennsylvania, 171 U.S., 1 (1898); and cases cited supra touching State police power.

168The Passenger Cases, 7 Howard, 283.

169R.R. Co. v. Huson, 95 U.S., 465 (1877).

170Turner v. Maryland, 107 U.S., 38 (1882).

171Inman S.S. Co. v. Tinker, 94 U.S., 238 (1876).

172Packet Co. v. Keokuk, 95 U.S., 80 (1877).

173Transportation Co. v. Wheeling, 99 U.S., 273 (1878).

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

175Id.

17626 Statutes at Large, 209.

177Northern Securities Company v. United States, 193 U.S., 197 (1904).

178Beef-Trust case, Swift and Co. v. U.S., 196 U.S., 375.

179Danbury Hatters’ Case, Loewe v. Lawler, 208 U.S., 274; see also Pullman Car Company, 64 Fed. Reporter, 724.

180In re Neagle, 135 U.S., 1 (1889).

181In re Debs, 158 U.S., 564 (1895).

182The Addystone Pipe & Steel Company v. United States, 175 U.S., 211 (1899).

183The Shreveport Case, (Houston, East and West Texas Railway Co. v. United States; Texas and Pacific Railway Co. v. United States) 234 U.S., 342 (1914).

Note.—Cases further illustrating prohibition of a business or activity by operation of laws passed under the commerce clause: United States v. Holliday, 3 Wallace, 407 (1866); Buttfield v. Stranahan, 192 U.S., 470 (1904); U.S. v. Del. & Hudson Ry., 213 U.S., 366 (1909); Hope v. U.S., 227 U.S., 308 (1913).

Cases illustrating exercise of the power over commerce given by the clause and exercising jurisdiction over commerce claimed to be intrastate but forming as it were a link in the chain of interstate commerce: Lord v. S.S. Co., 102 U.S., 541 (1880); Wilmington Transportation Co. v. California Railroad Commission, 236 U.S., 151 (1915); Hanley v. Kansas City Southern Ry., 187 U.S., 617 (1903).

It will be well to read the dissenting opinions in any of these cases as these usually emphasize the power of the State over commerce.

184Art. i., 10: 1.

185McCrackin v. Hayward, 2 Howard, 608 (1844).

186Woodruff v. Trapnall, 10 Howard, 190 (1850).

187Woodruff v. Trapnall, 10 Howard, 190 (1850).

188Murray v. Charleston, 96 U.S., 432 (1877).

189Idem.

190Salt Company v. East Saginaw, 13 Wallace, 373 (1871).

191Fisk v. Jefferson Police Jury, 116, U.S., 131 (1885).

192Trustees of Dartmouth College v. Woodward, 4 Wheaton, 518 (1819).

193Case of the conjunction of Washington and Jefferson Colleges, Pennsylvania College Cases, 13 Wallace, 190 (1871).

194Boyd v. Alabama, 94 U.S., 645.

195Beer Company v. Massachusetts, 97 U.S., 25 (1877).

196Douglas v. Kentucky, 168 U.S., 488 (1897).

197Douglas v. Kentucky, supra; New Orleans Gas Co. v. Louisiana Light Co., 115 U.S., 650 (1885).

198See the cases cited in New Orleans Gas Co. v. Louisiana, supra.

199Georgia R.R. and Banking Co. v. Smith, 128 U.S., 174 (1888); East Hartford v. Hartford Bridge Co., 10 Howard, 511 (1850). But a judgment (judicial decision) is not a contract in the meaning of the Constitution. Morley v. L.S. & M.S.R.R., 146 U.S., 162 (1892).

200McCrackin v. Hayward, 2 Howard, 608 (1844). All legal remedies for the enforcement of a contract belonging to it at the time and place when and where it is made are a part of its obligation. Any provision of a State law or constitution impairing such remedies are void. Gunn v. Barry, 15 Wallace, 610 (1872); Mitchell v. Clark, 110 U.S. (1884). But the prohibition, in the Constitution, of any State to make any law impairing the obligation of contracts “did not give to Congress power to provide laws for the general enforcement of contracts; nor power to invest the courts of the United States with jurisdiction over contracts, so as to enable parties to sue upon them in those courts. It did, however, give the power to provide remedies by which the impairment of contracts by State legislation might be counteracted and corrected: and this power was exercised.” Civil Rights Cases, 109 U.S., 3 (1883).

201Juilliard v. Greenman, 110 U.S., 421 (1884), and see note supra, p. 92.

202Consult Mitchell v. Clark, 110 U.S., 633 (1884) from which the quotation is taken.

203This raises the whole question of national sovereignty.

204Amendment V.; XIV.

205Missouri Pacific Ry. v. Nebraska, 164 U.S., 403 (1896).

206Pennoyer v. Neff, 95 U.S., 714 (1877); Arndt v. Griggs, 134 U.S., 316 (1890).

207Cunnius v. Reading School District, 198 U.S., 458 (1905), sustaining a Pennsylvania statute that provided for administration upon estates of persons presumed to be dead by reason of long absence from the State. Mattingly v. District of Columbia, 97 U.S., 687 (1878); that which a State Legislature may have dispensed with by a prior statute it may dispense with by a subsequent one; an irregularity or defect which might be made immaterial by prior law, the Legislature has power to make immaterial by a subsequent law. Cooley, Constitutional Limitations, 371.

208License Cases, 5 Howard, 588.

209Bartemeyer v. Iowa, 18 Wallace, 129.

210Foster v. Kansas, 112 U.S., 201.

211Mugler v. Kansas, 123 U.S., 623 (1887).

212Idem.

213Amendment V.

214Pumpelly v. Green Bay Co., 13 Wallace, 166 (1871).

215Idem.

216Preceding case and Central Bridge Corporation v. City of Lowell, Gray (Mass.), 474 (1855).

217Pierce v. Drew, 136 Mass., 75 (1883). The case grew out of plaintiff’s claim for damages because the town had granted a telegraph company the right to erect its poles, wires, etc., along the highway abutting plaintiff’s land. The highway being land in public use, plaintiff claimed indirect or consequential damages because of the erection of the poles, wires, etc., of the duly franchised telegraph company. Plaintiff’s complaint was (inter alia) that said poles, wires, etc., disfigured and depreciated his property. See also Bedford v. U.S., 192 U.S., 217 (1904); the principle therein further examined.

218Kohl v. United States, 91 U.S., 367 (1875).

219Kohl v. United States, 91 U.S., 367 (1875).

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

221Compare Art. i., 6: 1, 2; 9: 8; Art. ii., 1: 1; Art., 5, 8; “officer” in Art. ii., 2: 1,2; Art. ii., 4: 1; “offices” in Art. iii., 1: 1; vi., 3. There is every reason that the framers of the Constitution used words with profound discernment and discriminating care.

222Art. ii., 2: 1.

223Id. i., 8: 11.

224Id. i., 7: 2.

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

226Art. ii., 2: 2.

227Id. The Federalist, No. lxxv.

228Art. ii., 2: 2.

229Id., 2: 1.

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

231In re Neagle, 135 U.S., 1 (1889).

232Spaulding v. Vilas, 161 U.S., 483; U.S. v. Windom, 137 U.S., 636; U.S. v. Blaine, 139 U.S., 306. Marbury v. Madison, 1 Cranch, 137; Kendall v. U.S., 12 Peters, 524; U.S. v. Black, 128 U.S., 40; Mississippi v. Johnson, 4 Wallace, 475; Georgia v. Stanton, 6 Wallace, 57.

233Ex parte Garland, 4 Wallace, 333 (1886).

234Art. i., 3: 6.

235Id., 3: 4, 5.

236Notes of conversation, etc., C.E., Stevens, Sources of the Constitution of the United States, 169.

237Id., 168.

238Mississippi v. Johnson, 4 Wallace, 475 (1866).

239Idem.

240Mississippi v. Johnson, 4 Wallace, 475 (1866).

241Many cases; see State ex rel. v. Stone, 120 Missouri, 428 (1894), in which most of the cases are cited. But mandamus will issue to an appointee of the executive, a ministerial officer, to perform a ministerial act. U.S. ex rel. Daly, 28 App. D.C., 552; 35 Wash. Law Rep., 81; Garfield v. U.S. ex rel. Frost, 30 App. D.C., 165; 35 Wash. Law Rep., 771; Griffin v. U.S., ex rel. Le Cuyer, 30 App. D.C., 291; 36 Wash. Law Rep., 103; Drake v. U.S., ex rel. Bates, 30 App. D.C., 312; 36 Wash. Law Rep., 140; U.S. ex rel. Newcomb Motor Co., 30 App. D.C., 464; 36 Wash. Law Rep., 150; also 36 Wash. Law Rep., 681. Also U.S. ex rel. v. Black, 128 U.S., 40 (1888).

242United States ex rel. v. Black, 128 U.S., 40; and see the cases cited in preceding note.

243Art. iii., 1: 1.

244For the history of this amendment see the author’s Constitutional History of the United States, ii., 264–290.

245See Iredell’s dissenting opinion in Chisholm v. Georgia, 2 Dallas 419 (1793).

246The Federalist, No. xvi.

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

248No. lxxx.

249In re Neagle, 135 U.S., 1 (1889).

250The Federalist, No. lxxx.

251Id. For example, were the Vice-President to preside over the Senate sitting as a Court of Impeachment.

252The Federalist, id.

253The Federalist, id.

254Robertson v. Cease, 97 U.S., 646.

255Art. iii., 2: 2.

256Marbury v. Madison, 1 Cranch, 174.

257Cohens v. Virginia, 6 Wheaton, 414 (1821).

258Idem.

259So Congress has denied such jurisdiction to State courts,—Revised Statutes, U.S., Sec. 687.

260Davis v. Packard, 7 Peters, 276; BÖrs v. Preston, in U.S., 252 (1884).

261Cohens v. Virginia, supra.

262This power has been discussed in the preceding Chapters on Sovereignty, Legislation, Commerce, Taxation, Contracts, etc. See index.

263Bank of Commerce v. New York City, 2 Black, 620 (1862).

264Marbury v. Madison, 1 Cranch, 137 (1803).

265The relation of the United States to the State judiciary; the subject of concurrent (State and federal) judicial jurisdiction, is examined by Hamilton in The Federalist, Nos. lxxviii-lxxxiii. See also Martin v. Hunter’s Lessee, 1 Wheaton, 304 (1816).

266Hepburn v. Ellzey, 2 Cranch, 445 (1805).

267Art. iii.

268United States v. Freight Association, 166 U.S., 290, citing many cases.

269American Insurance Company v. Cantor, 1 Peters, 542.

270Luther v. Borden, 7 Howard, 1 (1848).

271The whole subject of the American judiciary is largely technical and can be known only through intimate knowledge of the Reports, of the Statutes at Large, and familiarity with practice. In the present chapter the essentials of the law of judicial procedure are the immediate subject.

272Marbury, v. Madison, 1 Cranch, 163.

273Marbury v. Madison, 1 Cranch, 176–180.

274All of Marshall’s decisions rest on the principle, thus set forth, and it remains fundamental in America, applying alike in the States and in the United States.

275The principle is examined in State ex rel. v. Stone, 120 Missouri, 428 (1894). Also in Luther v. Borden, 7 Howard, 1 (1848).

276See Constitution of Massachusetts, Judiciary, III.

277Political Science and Constitutional Law, J.W. Burgess, ii., 365; “I do not hesitate to call the governmental system of the United States the aristocracy of the robe; and I do not hesitate to pronounce this the truest aristocracy for the purposes of government which the world has yet produced.” Id.

278United States v. Lee, 106 U.S., 196 (1882).

279Case of Supervisors of Elections, 114 Mass., 247 (1873); the quotation (in the decision) is from the Constitution of Massachusetts, 1780, Part I, xxx. “The Government of the United States has been emphatically termed a government of laws, and not of men.” Marbury v. Madison, 1 Cranch, 163.

280State ex rel. v. Simons, 32 Minn., 540 (1884). Ex parte Griffiths, 118 Indiana, 83 (1889).

281Idem.

282Harwood v. Wentforth, 162 U.S., 547 (1896).

283Osborn v. Bank of the United States, 9 Wheaton, 738 (1824).

284Osborn v. Bank of the United States, 9 Wheaton, 738 (1824).

285Many cases; see Southern Pacific Railroad Co. v. California, 118 U.S., 109 (1866); Beck v. Perkins, 139 U.S., 628 (1891).

286BÖrs v. Preston, 111 U.S., 252. (1884).

287The steamboat Magnolia, 20 Howard, 296 (1857).

288Ex parte Siebold, 100 U.S., 37 (1879). Thus canals are highways of commerce and subject to “regulation” by Congress. The Robert W. Parsons, 191 U.S., 17 (1903); Ex parte Boyer, 109 U.S., 629 (1884).

289Stanley v. Schwalby, 162 U.S., 255 (1896), where the cases are cited.

290Cohens v. Virginia, 6 Wheaton, 414 (1821).

291United States v. Texas, 143 U.S., 621 (1892). The doctrine also in South Dakota v. North Dakota, 192 U.S., 286 (1904).

292Ames v. Kansas, 111 U.S., 449 (1884); the “party” may be a State (including its corporate subdivisions), or a natural person (or persons), or an artificial person (a corporation).

293Wisconsin v. Pelican Insurance Co., 127 U.S., 265 (1888).

294Hans v. Louisiana, 134 U.S., 1 (1890). The history of the Eleventh Amendment includes the entire record as to suits against States. The principles involved may be found as discussed by Hamilton in The Federalist, No. lxxxi; by Marshall, Madison, Mason, and Henry, in the Virginia Ratifying Convention, 3 Elliott’s Debates; in Mr. Justice Iredell’s dissenting opinion in Chisholm v. Georgia, 2 Dallas, 419; and a special history of the Amendment in the author’s Constitutional History of the United States, ii., 264–293. The Eleventh Amendment overruled the decision in the Chisholm case. As to suits against a State by its own citizens see Railroad Co. v. Tennessee, 101 U.S., 337 (1879). The principle here is that the sovereign may assent to being sued by its own citizens,—an assent declared by the State constitution, but available by the citizen only according to acts of the Legislature. The privilege (if it exists) is statutory. But suit against an officer, or agent of the State,—or of the United States, is not barred if that officer exercises a ministerial function; such suit is not a suit against the sovereign (United States, or State). See U.S. v. Lee, 106 U.S., 196 (1882); Cunningham v. Macon & Brunswick R.R. Co., 109 U.S., 446 (1883).

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

296The Ohio and Mississippi R.R. Co. v. Wheeler, 1 Black, 286 (1861). Hooe v. Jamieson, 166 U.S., 395 (1897).

297Martin v. Hunter’s Lessee, 1 Wheaton, 304 (1816); opinion by Mr. Justice Story; this case remains the leading case on the appellate jurisdiction of federal courts. The appellate jurisdiction of the courts is discussed by Marshall in Marbury v. Madison: “The essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted, and does not create that cause,” Ex parte, Watkins, 7 Peters, 568 (1833).

298Gaines v. Fuentes, 92 U.S., 10 (1875). Security Mutual Life Insurance Company v. Prewitt, 202 U.S., 246 (1906).

299Whitten v. Tomlinson, 160 U.S., 231 (1895). But as to conflicting jurisdiction of State and federal courts see Riggs v. Johnson County, 6 Wallace, 166 (1867).

300Green v. Neal’s Lessee, 6 Peters, 291 (1832).

301Idem. The question is examined in Pana v. Bowler, 107 U.S., 529 (1882). Gelpoke v. City of Dubuque, 1 Wallace, 175 (1863).

302Burgess v. Seligman, 107 U.S., 20 (1883). Bucher v. Cheshire R.R. Co., 125 U.S., 555 (1888).

303Smith v. Alabama, 124 U.S., 465 (1888). Western Union Telegraph Company v. Call Publishing Company, 181 U.S., 92 (1901).

304Art. i., 8: 17; 9: 6, 8; 10: 1, 2, 3; Art. iii.,2: 1, 2, 3; Art. iv., 1: 1; 2: 1, 2, 3; 3: 1, 2; 4: 1; Art. v., Art. vi., 2, 3; Art. vii., 1; Amendments VI., X., XI., XIII., XIV., XV., XVI., XVII.

305Thompson v. Whitman, 18 Wallace, 457 (1873).

306McElmayle v. Cohen, 13 Peters, 312. Story, Commentaries on the Constitution, 1313.

307Williamson v. Berry, 8 Howard, 540.

308Thompson v. Whitman, 18 Wallace, 457.

309Hanley v. Donaghue, 116 U.S., 1 (1885).

310Hanley v. Donaghue, 116 U.S., 1 (1885).

311Idem.

312Talbot v. Seeman, 1 Cranch, 38 (1801). The principle here declared is not to be applied strictly in extradition cases, whether between the several States or between the United States and another nation.

313Buckner v. Finley, 2 Peters, 590 (1829).

314Buckner v. Finley, 2 Peters, 590 (1829).

315Art. iii., 2: 1.

316Paul v. Virginia, 8 Wallace, 168 (1868).

317Idem.

318Ward v. Maryland, 12 Wallace, 418.

319Slaughter House Cases, 16 Wallace, 77 (1872). Blake v. McClung, 172 U.S., 239 (1898).

320Blake v. McClung, supra.

321Ex parte Reggel, 114 U.S., 642 (1885). Pennoyer v. Neff, 95 U.S., 714 (1877).

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

323Ex parte Reggel, supra.

324Lascelles v. Georgia, 148 U.S., 537 (1893).

325Art. i., 10: 1.

326Lascelles v. Georgia, supra. In international law the right of extradition does not include fugitives for political offenses. This exemption is an incident of sovereignty.

327Consult United States v. Rauscher, 119 U.S., 407.

328Lascelles v. Georgia, supra.

329Luther v. Borden, 7 Howard, 1 (1848).

330Idem.

331Luther v. Borden, 7 Howard, 1 (1848).

332Art. iv., 4: 1.

333Minor v. Happersett, 21 Wallace, 162 (1874).

334Idem.

335Texas v. White, 7 Wallace, 700 (1868).

336There are many cases expository of this principle: McCulloch v. Maryland, 4 Wheaton, 316; Barron v. Baltimore, 7 Peters, 243; Slaughter House Cases, 16 Wallace, 36; United States v. Cruikshank, 92 U.S., 542; Ex parte Siebold, 100 U.S., 371; Fong Yue Ting v. U.S., 149 U.S., 698; Legal Tender Cases, 12 Wallace, 457.

337Art. iv., 3: 1.

338Art. iii.; Art. iv. § 10; Amendments VI., X., XI., XIII., XIV., XV., XVII., and doubtless also in the matter of federal elections (election of members of the House of Representatives, and of United States Senators) as by Wiley v. Sinkler, 179 U.S., 58; Ex parte Yarbrough, 110 U.S., 651, and in all other Federal relations.

339Sands v. Manistee Improvement Company, 123 U.S., 288 (1887).

340If admitted by Proclamation of the President (and so Congress may provide) conformity to conditions imposed is duly announced by him. The enabling acts since 1789 vary in content. They are reprinted in The Federal and State Constitutions, Colonial Charters, and other Organic Laws of the States, Territories and Colonies Forming the United States of America. 7 vols. Washington, Government Printing Office 1909.

341The provision of the Ohio constitution of 1912 limiting the right to vote to “white male citizens of the United States” (Ohio, Art. v., § 1) citizens with the Fifteenth Amendment of the national Constitution. The power of the Judiciary of the United States to declare constitutions and laws that are repugnant to the Constitution of the United States unconstitutional, null, and void is discussed in the preceding chapter.

342Art. iv., 3: 2.

343American Insurance Company v. Canter, 1 Peters, 551 (1828). National Bank v. County of Yankton, 101 U.S., 129 (1879).

344National Bank v. County of Yankton, supra. But all rights commonly known as fundamental do not work as limitations of the power of Congress to govern Territories or “outlying possessions”; see Downes v. Bidwell, 182 U.S., 244 (1901). Until this decision these fundamental rights were construed as limitations of the power of Congress in its government of Territories; see Callan v. Wilson, 127 U.S., 540 (1888). Thompson v. Utah, 170 U.S., 343 (1898).

345Downes v. Bidwell, supra, and supporting cases.

346Barron v. Baltimore, 7 Peters, 243 (1833).

347Downes v. Bidwell, supra.

348Idem. In Brown v. Walker, 161 U.S., 591 (1896), (i.e., five years before the decision in Downes v. Bidwell), the Court declared: “The object of the first eight amendments to the Constitution was to incorporate into the fundamental law of the land certain principles of natural justice which had become permanently fixed in the jurisprudence of the mother country, etc.”

349The dissenting opinions in Downes v. Bidwell should be read; powerful as they are, they are not the opinion of the Court and do not declare what the law is.

350Cohens v. Virginia, 6 Wheaton, 414 (1821).

351The power of Congress over territory incorporated into the United States,—that is, over territory over which the Constitution has been extended by Congress is limited by the Constitution: Thompson v. Utah, 170 U.S., 343 (1898). Rasmussen v. United States, 197 U.S., 516 (1905); but over territory not so incorporated, see Hawaii v. Mankichi, 190 U.S., 197 (1903); Dorr v. U.S., 195 U. S., 138 (1904). The decisions support the doctrine that once the Constitution has been extended over territory, it cannot be withdrawn (Downes v. Bidwell) and consequently, all the limitations which by the Constitution affect Congress operate as limitations of its power over the territory, and therefore operate as fundamental rights and privileges of the inhabitants of such territory.

352So throughout The Federalist, and notably in Nos. xliv., xlv., li.

353But note the Sixteenth Amendment.

354First Inaugural. Works (Century Ed.), ii., 7.

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

356In 1787 distrust of the people, among the framers of the Constitution, explains the constitutional provision. James Wilson urged election of the President by popular vote. South Carolina in 1860 was the last State to appoint presidential electors by its Legislature. There is widespread belief in America now that the President should be elected by direct popular vote, as are Congressmen and United States Senators. At present the “electoral vote” is 531; the person receiving the majority of these 531 votes is President of the United States. By American laws there are upwards of 20,000,000 voters; by American constitutional law, the person receiving 266 “electoral” votes is President.

357Art. ii., 2: 1.

358Id. 3.

359Cincinnati, Wilmington, etc., R.R. Co. v. Commissioners, 1 Ohio St., 88; and see a full discussion of the issue in Field v. Clark, 143 U.S., 649 (1892).

Thus technically, the veto power is not a legislative but an executive power, though it is common to speak of the participation of the executive in legislation.

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

361Art. i., 8: 1.

362Id., 8: 12. In practice appropriations are for one year; if the purpose for which the appropriation was made is not effected within the year, the appropriation ceases to be available, unless to the contrary as declared in the law; but an unexpended appropriation may be made available (sometimes) by resolution of Congress, or even of the branch of Congress specially concerned.

363Art. i., 8: 16.

364Id., 9: 3. The limitation as to prohibition of the slave trade was temporary. Id., 9: 1.

365Id., 9: 5.

366Id., 9: 6.

367Art. i., 9: 8.

368Id., 5: 4.

369Id., 7: 1.

370Id., 6: 2. This is a limitation of the freedom of choice of certain individuals rather than a limitation of Congress as a legislative body; but what is forbidden to a member of Congress cannot be made lawful for him by act of Congress; thus the limitation may be one of legislation. The provision (Art. i., 9: 2) concerning the suspension of the writ of habeas corpus is not a limitation of the power of Congress, for Congress is the judge whether public safety requires the suspension of the writ.

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

372Art. iii., 3: 2; Id. i., 9: 3.

373Id. iv., 3: 1.

374Id., 3: 2.

375The first ten Amendments were demanded in 1787–8 as specific limitations of legislative power of the United States, and as a protection of fundamental, original rights of the people.

376The history of these Amendments in the author’s Constitutional History of the United States, ii., 199–263.

377First Amendment.

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

379See the Ninth Amendment.

380It will be noticed that this Amendment is not a limitation of the States; it applies to the United States.

381This is brought out by Marshall in Marbury v. Madison, 1 Cranch, 137,—the corner-stone of many later decisions.

382The limitations of the States by the Constitution of the United States have already been discussed in earlier chapters. Examination of present State constitutions will disclose existing limitations prescribed by the sovereignty, the people of the State.

383Art. i., 4: 1. The right to vote for members of Congress has its foundation in the Constitution of the United States, not in that of any State: Wiley v. Sinkler, 179 U.S., 58; Ex parte Yarbrough, 110 U.S., 651. This means a limitation of State powers,—as some might say; in strictness, it means a definition of federal powers; the jurisdiction of a State cannot exclude the jurisdiction of the United States.

384Id., 8: 17.

385No. lxii. (The authorship, strictly speaking, is uncertain, being assigned “to Hamilton or Madison.”)

386Art. i., 10: 1.

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

388Id. ii., 2: 1.

389Id. iii., 2: 2.

390Amendment XI.

391Amendment XIII.

392Amendment XIV.

393Id.

394Art. i., 2: 3.

395Id. v.

396Id. i., 2: 4. Amendment XVII., 2.

397Art. iv., 1: 2.

398Amendment XII.

399Art. ii., 2: 2.

400Id. iv., 2: 1.

401Id., 4. But the Governor cannot so apply if the Legislature is in session. The reason here is that the people of the State have fully empowered their representatives in the Legislature “to see that the Commonwealth suffers no harm.”

402Art. v.

403The Sixteenth Amendment (income tax) bears most heavily on States having large cities and a manufacturing population. It is possible that States which would be but slightly affected by a proposed amendment, might favor and ratify it; to avoid this possible discrimination, the suggestion has been made that in such a case the power of a State to ratify or to oppose ratification should be in proportion to its interests as affected by the proposed amendment. To this suggestion answer has been made that the Constitution is national, not local, in purpose and operation.

404Art. vi., 2, 3.

405Tenth Amendment.

406Ninth Amendment.

407The first quotation is from Downes v. Bidwell, 182 U.S., 244 (1901); the second, from Gibbons v. Ogden, 9 Wheaton, 235 (1824), decision by Marshall. The application of the principle laid down by Chief Justice Marshall in 1824 and elaborated, at times, by the Supreme Court,—as in 1901,—was discussed by the eminent jurist, Thomas M. Cooley, in a brief address to the North Dakota Constitutional Convention, July 17, 1889. At that time he was Chairman of the Interstate Commerce Commission. “Don’t, in your constitution-making, legislate too much. In your constitution you are tying the hands of the people. Don’t do that to any such extent as to prevent the Legislature, hereafter, from meeting all evils that may be within the reach of proper legislation. Leave something for them. Take care to put proper restrictions upon them, but at the same time leave what properly belongs to the field of legislation to the Legislature of the future. You have got to trust somebody in the future and it is right and proper that each department of government should be trusted to perform its legitimate functions.” Proceedings and Debates of the First Constitutional Convention of North Dakota, Assembled in the City of Bismarck, July 4 to August 17, 1889, p. 67. (Italization in text, not in original.)

408Thirty-three States have an elective judiciary. In Maine, New Hampshire, Massachusetts, Connecticut, Delaware, Mississippi, and New Jersey, the Governor nominates and the Senate confirms judges; in Rhode Island, Vermont, South Carolina, and Virginia, the Legislature elects the judges; in Florida, the Governor appoints judges of the Superior Courts and judges of the Supreme Court are elected by the people.

409Strictly executive functions are not within the jurisdiction of courts of law. See the discussion in Chapter VII.

410Marbury v. Madison, 1 Cranch, 137 (1803).

411Art. vi., 2, 3.

412Chicago, etc., Ry. Co. v. Wellman, 143 U.S., 339 (1892); Frees v. Ford, 6 New York, 176 (1852); Commonwealth v. McCloskey, 2 Rawle (Pa.) 374; Wellington, Petitioner, 16 Pickering (Mass.), 96.

413McCulloch v. Maryland, 4 Wheaton, 421 (1819).

414Idem., 423.

415No. lxxxiv.

416Pennsylvania and the Federal Constitution, McMaster and Stone, 254. Both Hamilton and Wilson were overruled by the public demand for a Bill of Rights, and the first ten Amendments were speedily added to the Constitution.

417Ogden v. Saunders, 12 Wheaton, 332 (1827); Martin v. Hunter’s Lessee, 1 Wheaton, 304 (1816); United States v. Aaron Burr, Cotton’s Constitutional Opinions of John Marshall, 1.100; Sturgis v. Crowningshield, 4 Wheaton, 122 (1819); Cohens v. Virginia, 6 Wheaton, 264 (1821); Cooley, Constitutional Limitations, 6th Edition, 204.

418Norton v. Shelby County, 118 U.S., 425.

419The relation of the judiciary to ministerial officers has already been examined; see Chapters VII and VIII. But see in this connection, the Secretary v. McGarrahan, 9 Wallace, 298; United States v. Black, 128 U.S., 40; United States v. Windom, 137 U.S., 636; United States v. Blaine, 139 U.S., 306; State ex rel. v. Stone, 120 Missouri, 428.

420Pennsylvania, 1873, Art. iv. §16. This provision does not empower the Governor to cut down an item, but in practice, it is so construed.

421As sovereignty is a unit, any examination of particular aspects of it must be but a partial examination of its operations. The Constitution of the United States is a unit, in so far as the sovereignty,—the people of the United States,—have made it the expression of their plan of government. It follows that close examination of any department or feature of the Constitution as a plan of government discloses that feature in relation with other features; the Constitution is an expression of a mass of relations. Thus it is that a decision of the Supreme Court may relate to several matters, seemingly without relation, but necessarily co-related. The present chapter on The Law of Limitations discusses executive, legislative, and judiciary and the principles of government by which it acts. The entire subject of American constitutional law must be viewed as a whole. See Pollock v. Farmers’ Loan and Trust Co., 158 U.S., 601 (1895); Field v. Clark, 143 U.S., 649 (1892). Also The Federalist, Nos. xliv.-lvi.

422Art. ii., 2: 2.

423American Insurance Company v. Canter, 1 Peters, 511.

424Amendments IX., X.

425Art. vi., 3. The ratifying conventions, 1788–9, formulated in the aggregate some two hundred amendments in the nature of provisions in a Bill of Rights. These, reduced to twelve, were presented by Madison (May 25, 1789) in the House of Representatives and were duly submitted to the States for ratification. Ten were ratified (1790).

426Reynolds v. United States, 98 U.S., 145 (1878).

427Davis v. Beason, 133 U.S., 333.

428Cooley, Principles of Constitutional Law, 3d Edition, 226. As to “Readings from the Bible” in public schools, see Pfeiffer v. Board of Education, 77 N.W. Reporter, 250 (1898); State ex rel. Weiss v. District Board, 76 Wisconsin, 177 (1890).

429People v. Ruggles, 8 Johns (N.Y.), 290. The exemption from taxation of property belonging to religious bodies (corporations) is not because of any fundamental right of such bodies to exemption, but because of the will of the legislature. It is a matter of policy.

430The winning of these and other fundamental rights is largely the subject of English constitutional history.

431So expressed in many State constitutions, as Pennsylvania, 1873, i., 7.

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

433United States v. Cruikshank, 92 U.S., 542 (1875).

434West v. Cabell, 153 U.S., 78; Weeks v. U.S., 232 U.S., 383; Ex parte Milligan, 4 Wallace, 2; U.S. v. Louisville & Nashville R.R. Co., 236 U.S., 318; U.S. v. Boyd, 116 U.S., 616 (the leading case), and Cotting v. Kansas City Stock Yards Co., 183 U.S., 79 (1901).

435Paul v. Virginia, 8 Wallace, 168 (1808); Blake v. McClung, 172 U.S., 239 (1898); Lockner v. New York, 198 U.S., 45 (1905).

436The rights of the person, and his or her rights of property are the essential subject of the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments. Similar provisions are included in the Bills of Rights in the State constitutions.

437Corfield v. Coryell, 4 Washington C.C., 371; Slaughter House Cases 16 Wallace, 36.

438This act of sovereignty is so rare as almost to be unknown. In America the act takes the form of an amendment to the Constitution.

439The forty-eight States have had, in the aggregate, some one hundred and twenty-five constitutions, and to these have been added some three hundred amendments (1776–1917). The federal Constitution has been amended seventeen times (1787–1913).

440Downes v. Bidwell, 182 U.S., 244 (1901).

441Pfeiffer v. Board of Education of the City of Detroit, 77 N.W. Rep., 250 (1898).

442Reynolds v. United States, 89 U.S., 145 (1878).

443Boyd v. United States, 116 U.S., 616 (1886). (Important historical data given in this case.)

444Robertson v. Baldwin, 165 U.S., 275 (1897).

445Cooley, Constitutional Limitations, 353; Ex parte Wall, 107 U.S., 265 (1883). Murray’s Lessee v. The Hoboken Land and Improvement Company, 18 Howard, 272 (1855), considered the leading case.

446Hurtado v. California, 110 U.S., 516 (1884).

447Yick Wo v. Hopkins (San Francisco Laundry Cases), 118 U.S., 356 (1886).

448Pembina Mining Company v. Pennsylvania, 125 U.S., 181 (1888). Barbier v. Connolly, 113 U.S., 27 (1885). Holden v. Hardy, 169 U.S., 366 (1898). But an act making it a criminal offense to employ a female in any clothing factory more than forty-eight hours in any one week violates the Fourteenth Amendment as violating the right of contract and being class legislation: Ritchie v. State, 155 Illinois, 98 (1895).

449Dent v. West Virginia, 129 U.S., 114 (1889). And cases cited.

450Barbier v. Connolly, supra. Mugler v. Kansas, 123 U.S., 623 (1887). The power to regulate, that is, the jurisdiction of the police power of the State, as decided in Munn v. Illinois, 94 U.S., 113 (1876), includes the power “to provide a maximum charge for the storage and handling of grain” in a warehouse privately owned. This is settled law, but careful reading should be made of the dissenting opinions in this case: Budd v. New York, 143 U.S., 517 (1892), sustaining Munn v. Illinois, with strong dissenting opinions; Spring Valley Water Works v. Schottler, 110 U.S., 347 (1884) sustaining Munn v. Illinois, with strong dissenting opinions. The economic question here is whether the State can fix prices, wages, compensation, hours of labor, etc. In this connection examine Lockner v. New York, 198 U.S., 45 (1905), sustaining a law of New York State making it a penal offense for any employer to require and permit any employee to work for him more than sixty hours in any one week. The law was sustained as a constitutional exercise by the State of its police power; but see dissenting opinions. The per contra was “the right of the individual to liberty of person and freedom of contract.”

451Capital Traction Company v. Hof, 174 U.S., 1 (1899). Many cases cited and the history of trial by jury given.

452Mr. Justice Matthews in Yick Wo v. Hopkins, 118 U.S., 356 (1886).

453Amendment XIV., July 28, 1868. It will be noticed here that the word “territory” is not used.

454Slaughter House Cases, 16 Wallace, 36 (1872).

455Amendment XIV.

456Art. iv., 2: 1.

457See p. 150.

458Canfield v. Coryell, 4 Washington, C.C., 371, 380; Paul v. Virginia, 8 Wallace, 180, and see pp. 191–211 of the present volume.

459Slaughter House Cases, supra.

460Crandall v. Nevada, 6 Wallace, 36 (1867).

461Slaughter House Cases, supra. (Some additional rights are secured citizens of the United States by Amendment XIV., §2; and by Amendments XIII. and XV.)

462Minor v. Happersett, 21 Wallace, 162 (1874).

463Art. iv., 4.

464Minor v. Happersett, supra. (But see Ex parte Yarbrough, 110 U.S., 651.)

465These qualifications, in the aggregate, have been of age, sex, residence, religion, property, race, and tax-paying. See the provisions in the State constitutions in Charters and Constitutions, 7 vols., U.S. Government Printing Office, 1909; and a detailed account of these early qualifications (1776–1850) in the author’s Constitutional History of the American People, i., ch. iii.

466Art. i., 2: 1; Amendment XVII.

467Ex parte Yarbrough, 110 U.S., 651, 653; Wiley v. Sinkler, 179 U.S., 58 (1900).

468United States v. Cruikshank, 92 U.S., 542 (1875).

469Idem.

470Civil Rights Cases, 109 U.S., 3 (1883).

471Idem.

472Ex parte, Siebold, 100 U.S., 371 (1879).

473Strauder v. West Virginia, 100 U.S., 303 (1879).

474Civil Rights Cases, 109 U.S., 3 (1883).

47514 Statutes at Large, 27, Ch. 31; Enforcement Act, May 31, 1870, 16 Statutes at Large, 140, Ch. 114.

476Civil Rights Cases, supra.

477That is, violating Amendments VI. and XIV.

478Hurtado v. California, 110 U.S., 516 (1884).

479“The trial by jury in civil cases guaranteed by the Seventh Amendment (Walker v. Sauvinet, 92 U.S., 90) and the right to bear arms guaranteed by the Second Amendment (Presser v. Illinois, 116 U.S., 252) have been distinctly held not to be privileges and immunities of citizens of the United States against abridgment by the States, and in effect the same decision was made in respect of the guarantee against prosecution, except by indictment of a grand jury in the Fifth Amendment (Hurtado v. California, 110 U.S., 516) and with respect to the right to be confronted with witnesses, contained in the Sixth Amendment (West v. Louisiana, 194 U.S., 258). In Maxwell v. Dow, 176 U.S., 606, when the plaintiff in error had been convicted in a State court of a felony upon an information, and by a jury of eight persons, it was held that the indictment made indispensable by the Fifth Amendment, and the trial by jury guaranteed by the Sixth Amendment, were not privileges and immunities of citizens of the United States, as those words were used in the Fourteenth Amendment.... We conclude, therefore, that the exemption from compulsory self-incrimination (‘see Amendment V.’) is not a privilege or immunity of national citizenship guaranteed by this clause (‘the first clause’) of the Fourteenth Amendment against abridgment by the States.” Twining v. State of New Jersey, 211 U.S., 78 (1908).

480United States v. Wong Kim Ark, 169 U.S., 649 (1898).

481Art. i., 8: 4.

482United States v. Villato, 2 Dallas, 373; Nishimura Ekin v. U.S., 142 U.S., 651; Luria v. U.S., 231 U.S., 9.

483Ex parte Griffiths, 118 Indiana, 83 (1889), citing many cases, (inter alia) Hayburn’s Case, 2 Dallas, 409, n.; United States v. Ferrera, 13 Howard, 40, n.; United States ex rel. v. Duell, 172 U.S., 576 (1898), also to be consulted.

484United States v. Rodgers, 150 U.S., 249 (1893).

485Guinn and Beal v. United States, 238 U.S., 347 (1915).

486Idem.

487Idem. and citing Ex parte Yarbrough 110 U.S., 651 (already considered in the present Chapter) and Neal v. Delaware, 103 U.S., 370. The decisions of the Supreme Court do not conflict with a State constitution that requires, as a qualification for voting, a literacy test, or a religious test, or a property test, or indeed any test which is not a discrimination on account of race color or previous condition of servitude.

488Calder v. Bull, 3 Dallas, 386 (1798); Kring v. Missouri, 107 U.S., 221 (1882); Thompson v. Utah, 170 U.S., 343 (1898). All the State constitutions forbid ex post facto laws.

The right secured to the citizen by the constitutional inhibition of ex post facto legislation forms part of his, or her, privileges and immunities; for though the inhibition cannot be said to be derived from the common law,—and may be said to be essentially statutory, it has become recognized as a fundamental right and of rank with any other fundamental right.

489Hollinger v. Davis, 146 U.S., 314 (1892).

490Idem.

491Boyd v. United States, 116 U.S., 616 (1886). The right covers “persons, houses, papers, and effects.” Art. iv.

492Harris v. People, 128 Illinois, 585 (1889).

493Art. v., Act of February 11, 1893, Statutes at Large, 443; Brown v. Walker, 161 U.S., 591 (1896).

494Amendment VI. Mattox v. United States, 156 U.S., 237 (1895).

495Idem.

496In the original the clauses are not numbered, nor is there any title to the document. It begins, “We the People.”

497See Amendments XIII., XIV., XV., XVI.

498See Amendment XVII.

499See Amendment XII.

500See Amendment XI.

501See Amendments XIII., XIV., XV.

502The word, “the,” being interlined between the seventh and eighth Lines of the first Page, The Word “Thirty” being partly written on an Erazure in the fifteenth Line of the first Page, The Words “is tried” being interlined between the thirty-second and thirty-third Lines of the first Page and the Word “the” being interlined between the forty-third and forty-fourth Lines of the second Page.

503New Jersey withdrew her consent to the ratification on March 27, 1868.

504Oregon withdrew her consent to the ratification October 15, 1868.

505Ohio withdrew her consent to the ratification in January, 1868.

506North Carolina, South Carolina, Georgia, and Virginia had previously rejected the amendment.

507New York withdrew her consent to the ratification January 5, 1870.

508Ohio had previously rejected the amendment May 4, 1869.

509New Jersey had previously rejected the amendment.

                                                                                                                                                                                                                                                                                                           

Clyx.com


Top of Page
Top of Page