OF THE RIGHTS, PRIVILEGES, AND IMMUNITIES OF THE CITIZEN.
The rights, privileges, and immunities now enjoyed by citizens of the States composing the United States, whether as citizens of the States or of the United States, originated in rights possessed or claimed by the inhabitants of the thirteen American colonies, while they were dependencies of Great Britain. The struggle of the American colonists for independence was based upon the claim that they were denied, by the parent government, rights, privileges, and immunities which were their common heritage as British freemen, or which had from time to time been granted specifically to the American colonies.
No written chart in existence, then or now, has ever attempted to enumerate, clarify, and define in one succinct expression, the rights, liberties, and franchises possessed by English subjects, nor is it the purpose of this volume to attempt to do that. It is sufficient to say that the liberties and right of self-government of the British people, beginning with the declarations of Magna Charta, have been ascertained and declared from time to time, during six centuries of conflict between the people of the British realm and their successive sovereigns, until they are now well established and quite thoroughly understood.
Notwithstanding the British people have retained in their government the form of a limited monarchy, they have established for themselves as against their constitutional monarch, a measure of popular sovereignty and personal liberty as great as that possessed by any other people in the world. Our boast is that ours is a free republic; that it is doubtful whether, although we have a president instead of a king, and a supreme court with certain power to control both executive and legislative action, the King of England, on the whole, possesses as much independent authority as the President of the United States.
Although the struggle of the American colonists was based upon the claim that the parent government denied the inhabitants of the colonies the guaranteed rights of British citizens, the American colonists, even under British dominion, were accorded and actually enjoyed many rights, privileges, and franchises, peculiar to themselves, not enjoyed by Englishmen at home, or even of British origin; some of which have not, to this day, been adopted in their entirety in England.
Source of American Plan of Government and Rights of Citizenship.
Many of the declarations of popular rights set forth in the American Declaration of Independence were of rights which were not of English origin. The American colonists had become familiar with the rights of citizenship possessed in other countries, both from the fact that some of tem resided in Holland for a time, before they came to America, and from the further fact that the New York colony was essentially Dutch in its original settlement and government. It is plain to see, by comparison with other historic documents, that the Declaration of Independence of 1776 was modeled, to a large extent, not upon English precedents, but upon the written constitution of the Netherlands Republic, called The Union of Utrecht, of 1579.
The manifesto issued by the rebels at the time of Bacon's Rebellion in Virginia in 1676 contains much from the same source. The Union of Utrecht and Bacon's Rebellion antedated, one by one hundred years and the other by three years, the Exclusion Act of 1679, by which James ][I of England was deposed, and which, by some writers, has been referred to as the source from which the claim set forth in the Declaration of Independence were derived.
Nor did the American ideas of a written constitution and a supreme court emanate altogether from Englishmen. They were the results of the co-operative labors of Puritans and Cavaliers, Dutchmen, Huguenots, and Scotch-Irishmen, assembled in convention in America, working for a common end, upon models derived from many countries with whose governments they were familiar. For example, the demand for the separation of Church and State, which is a leading tenet of American government, is not of British origin. Virginia was foremost in this contention. She abolished tithes and forfeited glebe lands. The change was brought about through the influence of Patrick Henry, a Scotch dissenter; and of Thomas Jefferson, a man of Welsh origin, with views derived from a study of Dutch precedents.
So, too, the abolition of privileged classes was distinctly anti-English.
The American system of land tenures, the abolition of entails and primogenitures, and our methods of transfer of real estate, are all anti-English in their origin. Entails and primogenitures were cherished institutions of England. Our system of transferring real estate by the registration of deeds came from Holland, and has not, even to the present day, been fully adopted in England. Our laws governing the transfer of personal property and our whole system of mercantile law are adaptations of Continental and Roman methods, modified so as to make them applicable to our modern conditions. We owe nothing to England for our system of elections or for our public prosecutors. The idea of a public prosecutor or commonwealth's attorney came from Holland.
Our system of charitable institutions, hospitals, and prisons is not modeled upon English precedents. The charitable institutions, hospitals, and prisons of the colonies antedated those in England. The first of these established in the American colonies were copied from Dutch models, and the admirable system now existing in England is derived largely from a study and adoption of those which were first established in the Dutch colony of New York and in the Quaker colony of Pennsylvania.
So, too, the American citizen derived his principles of religious toleration, not from England, but from the Dutch. As late as 1663, when the representatives of the Crown in the English colonies were, under orders from England, persecuting Quakers and Anabaptists and demanding that they take the oath of allegiance and conformity or suffer punishment; when Puritans were driving Pilgrims from Massachusetts into Rhode Island, and Virginians placing the King's broad arrow on the houses of dissenters in Maryland, the Dutch colony of New York was receiving orders from Amsterdam proclaiming that the conscience of men ought to remain free. The orders read: "Let every one remain free as long as he is modest, moderate, his political conduct irreproachable, and as long as he does not offend others or oppose the government"(1) This was twenty years before Penn came to America, and, even after he came, the Scotch-Irish and Germans were driven from Pennsylvania by Logan's oppressive administration of the Quaker laws, and sought asylum in the Shenandoah valley of Virginia.
The Pilgrims in Rhode Island proscribed Catholics and deprived them of suffrage, on account of their religion, from 1719 to 1783.
Mr. Madison is authority for the statement that the example of Holland led to the constitutional provision forbidding Congress from making any enactment
"respecting an establishment of religion" or abridging the freedom of the press.
Perhaps there is no other thing in which the citizen of the United States takes greater pride than in our system of public education. The privilege of public-school education for his children is possessed by every citizen of the United States in the State of which he is a citizen, no matter how humble or ignorant he may be or how limited his own rights. This privilege, like the others named, is distinctly not of English origin. At the time of the departure of the original colonists from England for America, no system of public education existed in Great Britain. None exists there to-day, comparable, in thoroughness, with our own. Long residence in Holland made some of the earliest American settlers familiar with the benefits of public education and the advantages of the free school system of the Dutch. But a thorough system of free education was installed in the Dutch colony of New York fully twenty years before any school system was adopted by the New England colony,. Sparseness of population in the southern colonies rendered free schools almost impracticable there. But they were established in the populous Dutch communities and among the Scotch-Irish of the Shenandoah valley in Virginia, from the time of the earliest settlements there.
Notwithstanding the southern colonies were backward, the greatest impetus to public education in the Northwest Territory, after the colonies were independent, came from the southern section; for when Virginia ceded her rights in the Northwest Territory to the Federal government, she demanded through her representatives in Congress, Richard Henry Lee and Paul Carrington, the condition in the Ohio ordinance of 1787, requiring that alternate sections of the public lands should be dedicated to purposes of public education.(2)
Having now traced the ideas of the American colonists concerning plans of government and rights of citizenship to the sources whence they sprung, let us next consider how far these rights have been incorporated in the governments which they established.(3)
Rights of Citizens of the States.
Let us first examine the rights of citizens as citizens of the States; for these clearly antedate whatever rights they possess as citizens of the United States, by a period equal to that which elapsed between the acknowledgment of the independence of the thirteen independent colonies by Great Britain, and the formation of the Union by the States themselves.
No State in the Union has ever sought to embody in one written chart a full expression of all the rights, privileges, and immunities of its citizens. Nor will the attempt now be made. On this subject we shall content ourselves with the language of Mr. Justice Washington, construing Section 2 of Article IV of the Constitution of the United States, which provides: "Citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." He said:
"The inquiry is, What are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental, which belong of right to the citizens of all free governments, and which have at all times been enjoyed by the 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 perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general beads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole."(4)
Mr. Justice Miller, in the Slaughter-House Cases,(5) said, with reference to this observation of Mr. Justice Washington:
"The description, when taken to include others not named, but which are of the same general character, embraces nearly every civil right for the establishment and protection of which organized government is instituted."
While it is undoubtedly true that the attempt to enumerate these rights of citizenship would be more tedious than difficult, and while it may be unnecessary to enumerate and classify them, especially as the order of their enumeration varies in the different States, it seems proper to advert to the earlier expressions in the first bill of rights framed by one of the original States, to ascertain what our Revolutionary forefathers conceived to be the most important of the rights for which they were contending.
State Bills of Rights.
The Bill of Rights of Virginia, drafted by George Mason, is perhaps the most famous of all these bills of rights, and may be taken as an example, as it was made the model of many States afterwards formed. It was unanimously adopted by the Virginia convention, June 12, 1776.(6) It recites the following as basic and foundational principles of government, and declares that they pertain to the good people of the commonwealth and their posterity:
1. That all men are by nature equally free, independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
2. That all power is vested in, und consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable.
3. That government is, or ought to be, utilized for the common benefit, protection, and security of the people, nation, or community; of all the various forms and modes of government, that is beat which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the, danger of maladministration; and that, when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish it in such manner as shall be judged most conducive to the public weal.
4. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which not being descendible, neither ought the offices of magistrate, legislator, or judge to be hereditary.
5. That the legislative and executive powers of the State should be separate and distinct from the judiciary; and, that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into the body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all or any part of the former members to be again eligible, or ineligible, as the laws shall direct.
6. That election of members to serve as representatives of the people, in assembly, ought to be free; and that all men having sufficient evidence of permanent common interest with and attachment to the community, have the right of suffrage, and cannot be taxed or deprived of their property for public uses, without their own consent, or that of their representatives so elected, nor bound by any law to which they have not in like manner assented for the public good.
7. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.
8. That, in all capital or criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial and impartial by of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land, or the judgment of his pears.
9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments indicted.
10. That general warrants, whereby an officer or messenger may be commanded to search suspected place without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.
11. That, in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.
12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.
13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided, us dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
14. That the people have a right to uniform government; and therefore, that no government separate from, or independent of, the government of Virginia ought to be erected or established within the limits thereof.
15. That no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.
16. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience, and that it is the mutual duty of all to practice Christian forbearance, love and charity, towards each other.
This immortal declaration of the principles of popular sovereignty has been set forth at length because it embodies in itself the substance of all similar declarations in the other colonial conventions, and was either incorporated into the Declaration of Independence itself, which was adopted twenty-two days later, or into the earliest amendments of the Constitution of the United States. Of the first ten amendments to the Constitution of the United States, which may be considered as adopted contemporaneously with the Constitution itself, six merely reaffirm the principles enunciated in George Mason's bill of rights.
National Declaration of Independence.
When we come to a study of the Declaration of Independence itself we find a reassertion of principles concerning the equality of men, their unalienable rights, that government is instituted to secure those rights, that it derives its just powers from the consent of the governed, and the right of the people, when it becomes destructive of those ends, to alter or abolish it and institute a new government.
After declaring that long established governments should not be changed for light and transient causes, it proceeds to arraign the British government for a long train of abuses and usurpations. We may gather, from the enumeration of those abuses, the following claims made by the revolutionists concerning the rights, privileges, and immunities of citizens:
1. The right of representation in the legislature, a right inestimable to them.
2. The right to have representative bodies assembled at usual and comfortable places convenient to the depository of their public records.
3. The right to have frequent sessions of the legislature.
4. The right to have a system of naturalization laws.
5. The right to have an independent judiciary.
6. The right to oppose a multitude of offices.
7. The right to oppose standing armies in time of peace.
8. The right to have the civil power superior to the military power.
9. The right to resist quartering of armed troops among them.
10. The right to trade with the outside world.
11. The right to as voice in taxation.
12. The right to trial by a jury of the vicinage.
13. The right of local self-government.
The Federal Constitution.
We have already seen that during the period in which the States co-operated under articles of confederation, the rights, privileges, and immunities of their citizens were derived exclusively from their respective States, and that the power of the United States did not extend to the control of the individual, save in a few limited and specified cases; and that as then constituted the United States did not attempt to grant or guarantee to the individual citizen any rights, privileges, or immunities, save to citizens of one State in another State.(7)
When, upon the adoption of the Federal Constitution, Federal power operated directly upon individual citizens of the limited States, the number of Federal guarantees of their rights was extended also. These guarantees were the necessary correlatives of the specific powers granted to the Federal government, and are the supreme law of the land on the subjects to which they refer.
But it by no means follows from this that the Federal government is supreme concerning all the rights, privileges, and immunities of the citizen. On the contrary, while it is supreme in its sphere and possesses ample authority to enforce the powers expressly delegated to it by the Constitution, it is only a government of delegated and limited powers, and the States, in forming it, expressly retained and reserved in themselves the absolute control, direction, and sovereignty over their citizens concerning a vast residuum of rights, privileges, and immunities which, prior to the adoption of the Constitution, they had regulated exclusively.(8) For instance, it has never been contended that the Constitution, as originally framed, created in the Federal government any power to establish any code of municipal law applicable to the States composing it, regulative of all private rights between man and man in society, or that Congress may usurp the powers of State legislatures concerning such legislation. The Supreme Court of the United States has repeatedly taken occasion to point out that no such power exists, either under the original Constitution or by virtue of any of the amendments.(9) As we shall see later, a vast amount of litigation which has arisen under the constitutional amendments has been based upon a confused notion that the XIII, XIV, and XV Amendments in some way altered and extended the general scope of Federal powers, even to the point of effecting this fundamental change. But an unbroken line of Federal decisions has denied that such a change in the organic structure of the Federal government was either contemplated or effected by the amendments, and point out that the legislation which Congress is authorized to enact under the amendments is not general legislation upon the rights of citizens, but only certain corrective legislation, if such be necessary, to counteract State legislation prohibited by the amendments upon special subjects named in the amendments.(10)
When we come to examine the multitudinous decisions of the Supreme Court on questions which have arisen under the amendments it will be seen that the cases have for the most part not originated in any alleged act of the Federal government invading the sphere of State action, but upon the contention made by citizens of the States that Federal powers, as enlarged by the amendments, are much more far-reaching and restrictive upon State powers than the Federal courts themselves have been willing to admit. The decisions rendered by the Supreme Court have in an overwhelming majority of cases been against the broad effect of the constitutional amendments as authorizing extended Federal powers, or as restricting State powers, contended for by the citizens; and they declare unanimously the continuing power of the States, notwithstanding the amendments, to regulate exclusively the rights, privileges, and immunities of citizens upon the matters in issue, subject only to the particular limitations named in the amendments.(10)
Seeing now that the rights, privileges, and immunities of the citizens are dependent, for acknowledgment and protection, upon dual governments, just as the allegiance of the citizen is due to dual governments, let us next consider the safeguards and protections of those rights offered to the citizen by the Federal and State governments. And, as the Federal government, although limited in its sphere, is supreme, and as all other rights, not derived from or guaranteed by it, depend for their recognition and protection upon the States, the orderly method of consideration would seem to be, to inquire first what rights of the citizen the Federal government grants or undertakes to protect, and what it has neither granted nor undertaken to guarantee. For all rights not so granted or guaranteed by the Federal government are dependent for their existence and their continuance upon the State of which the individual is a citizen.(11)
Rights, Privileges, and Immunities Granted or Guaranteed to the Citizen by the United States.
These may be classified as follows:
1. Rights granted or guaranteed by the Constitution of the United States as originally framed, or by the first twelve amendments thereto.
2. Rights granted or guaranteed by the XIII, XIV, and XV Amendments.
First, then, the rights, privileges, or immunities granted or guaranteed to the citizen by the Constitution of the United States as originally framed, or by the first twelve amendments thereto, are, in the order of their enumeration, or by necessary implication, as follows:
1. A right, That citizens of the States composing the Union, having the qualifications requisite for electors of the most numerous branch of the State legislature, shall possess the right and privilege of electors for members of the House of Representatives of the United States chosen every second year by the people of the United States. (Art. 1, Sec. 2, Cl. 1.)(12)
2. A privilege. That such citizens shall be eligible to membership of the House of Representatives, if they possess certain qualifications of age, length of citizenship, and are inhabitants of the State from which they are chosen. (Art 1, Sec. 2, Cl. 2.)
3. A right. That representatives and direct taxes shall be apportioned, among the several States, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. This clause is, however., amended, in respect to apportionment of representation, by the XIV Amendment, Sec. 2. (13)
4. A right. To have an enumeration or census, every ten years, according to law, to determine the basis of representation, but with a proviso that representatives shall not exceed one for every 30,00O, but that each State shall have at least one representative. (Art. I, Sec. 2, Cl.3, Par. 2) (14)
5. A privilege. That citizens possessing defined (qualifications of age, length of residence, and habitation, shall be eligible as United Staten senators. (Art. I, @. 3, 01. 3.)
6. An immunity. Against the trial of impeachments by any other body than the Senate, or conviction without a concurrence of two-thirds of the members present; and against any judgment in such case extending further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. (Art. I, @. 3, Cl. 6.)(15)
7. An immunity. From arrest, except for treason, felony, or breach of the peace, while attending Congress as a member or going to or returning from the same; and from being questioned for any speech or debate in either House. (Art. I, Sec. 6, Cl. 1.)(16)
8. A right. That all bills for raising revenue shall originate in the House of Representatives. (Art. I, Sec. 7, Cl. 1.)(17)
9. A right. To have the executive sanction of all laws before they become effective, unless they be passed over the President's veto. (Art. I, Sec. 7, Cl. 2.) (18)
10. A right. That all duties, imposts, and excises imposed by Congress shall be uniform throughout the United States. (Art. 1, Sec. 8, Cl. 1.)(19)
11. An immunity. From any laws passed by any State, or other authority than Congress, regulating commerce with foreign nations and among the several States, and with the Indian tribes. (Art. I. Sec. 8, Cl. 3.)(20)
12. A right. To uniform Federal laws of naturalization and bankruptcy throughout the United States. (Art. 1, Sec. 8, Cl. 4.)(21)
13. A right. To a Federal coinage and standard of weights and measures. (Art. 1, See. 8. el. 5.)(22)
14. A right. To an established Federal postal system and post roads. (Art. I, See. 8, CL 6.)(23)
15. A right. To a Federal system of patent rights and copyrights. (Art. 1, Sec. 8, Cl. 8.)(24)
16. A right. To a supreme court and a system of federal courts inferior to the supreme court. (Art. HI, Bees. I and 2; Art. 1, Sec. 8, Cl. 9.)(25)
17. A right To Federal protection against piracies and felonies committed on the high seas and offenses against the law of nations. (Art. 1, Sec. 8, Cl. 10.)(26)
18. An immunity. Against any declaration of war or the granting of letters of marque and reprisal except by the United Staten. Art. 1, Sec. 8, Cl. 4.)(27)
19. An immunity. Against any appropriations for war purposes by Congress, under its power to raise and support armies, for a longer term than two years. (Art. I, See. 8, Cl. 12.)(28)
20. A right. To the creation and maintenance of a navy by the Federal government (Art. 1, Sec. 8, Cl. 13.)(29)
21. A right. To the use of the militia under the call of the Federal government, for executing the laws of the Union, suppressing insurrections, and repelling invasions. (Art. 1, See. 8, 01. 15.)(30)
22. A right. To exclusive Federal legislation by Congress over a territory not exceeding ten miles square as a seat of government, and like authority over all places purchased for forts, magazines, arsenals, and dockyards. (Art 1, See. 8, Cl. 17.)(31)
23. A right. To the privilege of the writ of habeas corpus, save when it may be suspended for public safety, in time of rebellion or invasion. (Art. 1, Sec. 9, Cl. 2.)(32)
24. An immunity. Against any bill of attainder or ex post facto law. (Art. 1, Sec. 9, Cl. 3.)(33)
25. An immunity. Against any capitation or other direct tax except in proportion to the census above provided for. (Art. 1, See. 9, Cl. 4.)(34)
26. An immunity. Against any tax or duty on articles exported from any State. (Art, I, See. 9, Cl. 5.)(35)
27. An immunity. Against any preference to the ports of one State over those of another; and against the entrance, clearance, or payment of duties by vessels bound to or from the ports of one State to or from the ports of another State. (Art. 1, Sec. 9, Cl. 6.)(36)
28. An immunity. Against the granting of any titles of nobility by the United States. (Art. 1, Sec. 9, Cl. 8.)(37)
29. Immunities. Against any treaty, alliance, or confederation entered into by any State, and the granting of letters of marque or reprisal by any State, and against the coinage of money or emission of bills of credit by any State and the making of anything but gold and silver coin a tender in payment of debts by any State; and the passage of any bill of attainder or ex post facto law, or law impairing the obligation of contracts, or grant of any title of nobility by any State. (Art. 1, Sec. 10, Cl. 1.)(38)
30. An immunity. From the laying of any impost or duties on imports or exports by any State, without the consent of Congress. (Art. I, See. 10, Cl. 2.)(39)
31. Immunities. From any duty of tonnage laid by any State without the consent of Congress, or the keeping of troops or ships of war in time of peace by any State, or the entering into an agreement or compact with another State or a foreign power, or engaging in war unless actually invaded or in such immediate danger as will not admit of delay. (Art. I, Sec. 10, Cl. 3.)(40)
32. A privilege. Of being presidential and vice presidential elector in the manner provided by the legislation of. the State. (Art. 11, Sec. 1, Cl.1 and 2.)(41)
33. A privilege. Of being President provided the citizen possesses the requisite qualifications of birth, age, and residence. (Art II, Sec. 1, Cl. 4.)(42)
34. A privilege. Of being Vice-President subject to the same qualifications as last named. (Art. 11, Sec. 1, Cl. 4.)
35. A privilege. Of suing in the federal courts, on the terms and subject to the conditions of jurisdiction set forth in the Constitution and laws. (Art. Ill, Secs. I und 2.)
36. A right. To trial by jury in the State where the crime is charged to have been committed in any trial for crime in a federal court, except in case of impeachment, and when the crime is not committed within any State the trial to be at such place or places as Congress directs. (Art. 111, Sec. 2.)(43)
37. An immunity. From the charge of treason against the United States, except for levying war against them, or for adhering to their enemies, giving them aid and comfort (Art III, Sec. 3, Cl. 1. See Of Treason, supra, pp. 74 et seq.)
38. A right. To demand, in cases of trial for treason, the testimony of two witnesses to the same overt act, or a confession in open court, as the only basis, of conviction. (Art. III, Sec. 3, Cl. 1.)(44)
39. An Immunity. Against any attainder of treason working corruption of blood or forfeiture, except during the life of the person attainted. (Art. III, Sec. 3, Cl. 2.)(45)
40. A right. To demand that each State shall give full faith and credit to the public acts, records, etc., and judicial proceedings of every other State. (Art. IV, Sec. 1.)(46)
41. A right. in the citizens of each State to enjoy all the Privileges and immunities of citizens in the several States. (Art. IV, Sec. 2, Cl. 1.)(47)
42. A right. To demand from any State the extradition and removal of any person who shall flee thereto, who is charged, in another State, with treason, felony, or other crane. (Art. IV, Sec. 21 Cl. 2)(48)
43. A right. To demand the delivery, on claim of the party entitled, of any person held to service or labor, in one State, who has escaped to another State. (Art. IV, Sec. 2, 01. 3.)(49)
44. A right. To the performance of the guarantee of the United States that every State in the Union shall have a republican form of government, and that the United States will protect each of them from invasion and against domestic violence. (Art. IV, Sec. 4.)(50)
45. A right. In each State to equal suffrage in the Senate. (Art.V.)
These being the only rights, privileges, and immunities guaranteed to citizens by the Constitution itself, the following additional appear in the first twelve amendments to the Constitution:(51)
46. An immunity. Against any law of Congress respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press. (Art. 1.)(52)
47. A right. Of the people peaceably to assemble, and to petition the government for a redress of grievances. (Art. I)(53)
48. A right. Of the people to keep and bear arms. A right not to be infringed. (Art. II.)(54)
49. An immunity. From the quartering of troops in any house in time of peace without the consent of the owner, or in time of war, except in a manner to be prescribed by law. (Art. III.)
50. An immunity. Against unreasonable searches or seizures. (Art. IV.)(55)
51. A right. To demand that search warrants shall not issue except upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the person or things to be seized. (Art. IV.)(56)
52. A right. That no citizen be held to answer to the Federal government 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. (Art. V.)(57)
53. An immunity. From being twice put in jeopardy of life or limb for the same offense. (Art. V.)(58)
54. An immunity. From being a witness against himself. (Art. V.)(59)
55. A right. To due process of law before being deprived of life,, liberty, or property. (Art. V.)(60)
56. A right. To just compensation for any property taken for public use. (Art. V.)(61)
57. A right. To speedy and public trial in all cases of criminal prosecutions by an impartial jury of the district wherein any crime is charged to have been committed, the district to have been previously ascertained by law; to be informed of the nature and ,cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense. (Art. VI.)(62)
58. A right. In suits at common law, involving a value exceeding twenty dollars, to a trial by jury. (Art. VII.)(63)
59. An immunity. From having any fact tried by a jury re-examined in any court of the United States, otherwise than according to the rules of common law. (Art. VII.)(64)
60. An immunity. Against the requirement of excessive bail, against the imposition of excessive fines, and against the infliction of cruel and unusual punishments. (Art. VIII.)(65)
61. A declaration. That the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. (Art. IX.)(66)
62. A guarantee. That the powers not delegated to the United States by the Constitution, nor prohibited to the States, are reserved to the States respectively, or to the people. (Art. X.)(67)
In Lloyd v. Dollinson, decided on May 16,1904, the Supreme Court said that the first eight amendments to the Constitution of the United States have reference to powers exercised by the government of the United States and not to those of the states.(68)
The Eleventh Amendment to the Constitution relates simply to a limitation of Federal judicial power, and the Twelfth Amendment to the manner in which presidential and vice-presidential electors shall meet and cast and certify the electoral vote, and to the manner of deciding the result; so that they have no direct significance or bearing on the rights of citizenship.
The first ten amendments to the Constitution were proposed to the legislatures of the several States by the First Congress, September 25, 1789. They were ratified by the States, beginning with New jersey, November 20, 1789, and ending with Virginia, December 15, 1791. There is no evidence on the journals of Congress that the legislatures of Connecticut, Georgia, or Massachusetts ratified them. The Eleventh Amendment was proposed to the legislatures of the several States by the Third Congress, September 5, 1794, and was declared to have been ratified by the legislatures of three-fourths of the States, in a message from the President to Congress dated January 8, 1798.
The Twelfth Amendment to the Constitution was proposed to the legislatures of the several States by the Eighth Congress, December 12, 1803;, in lieu of the original third paragraph of the first section of the second article, and was declared adopted in a proclamation of the Secretary of State, September 25, 1804.
From 1804 to 1865 the Constitution and twelve amendments remained unchanged.
It was not until February 1, 1865, that the Thirteenth Amendment or first of the great "war amendments" was proposed. It was declared adopted in a proclamation of the secretary of state, dated December 18, 1865. The Fourteenth Amendment was proposed June 16, 1866, and declared adopted July 21, 1868. The Fifteenth Amendment was proposed February 27,1869, and proclaimed as adopted March 30, 1870.
Let us now inquire into the rights, privileges, and immunities of citizens, as citizens of the United States and of their respective States, during the first seventy-six years of the Union, and afterwards examine how far these rights have been modified, or State and Federal control of them changed, by the amendments consequent upon the great Civil War.
The following reflections must result to every student of the subject, from the aforegoing recital.
First. That the correlative relations of government and citizenship were absolute and unqualified as between the States and their citizens after the States gained independence and prior to the formation of the Union.
Second. That the Federal government when formed was one of limited scope and powers, and after its formation, notwithstanding the creation and recognition of the sixty-odd Federal rights, privileges, and immunities as citizens of the Union, above set forth, a vast residuum of power and control over the rights, privileges, and immunities of their citizens remained in the States.
Third. That the Federal government, while supreme in its sphere, was not framed to reach, and its creation did not affect, the undelegated powers of the States, in municipal affairs, over their own citizens and that its power over such was expressly negatively by the instrument which brought it into being.
This is so manifest that the Constitution might well have begun with the language of the last of the ten first amendments, for the States existed before their representatives created the Union by the delegation of certain enumerated powers, and it goes without saying that "the powers not delegated to the United States by the Constitution are reserved to the States respectively or to the people."
The rights of citizens, both as citizens of the United States and of the States, under nearly every clause of the Constitution and the first twelve amendments, were fully considered and defined before the outbreak of our great Civil War, by the Supreme Court of the United States. To the great glory of that tribunal it may be truly said that its interpretations have been universally recognized as wise, conservative and just; that if it has erred at all it has been either towards the reserved powers of the States than towards an enlargement of Federal power by implication; that for the most part its judgments have remained unaffected by the excitements and changes of civil conflict; and that, even concerning such of its decisions as have been reversed by the logic of events, the wisdom and justice of its action upon the law and the facts then before it are now universally admitted, however bitterly they may have been aspersed at the time those decisions were rendered.
The footnotes on the foregoing pages have set forth every decision of the Supreme Court upon every clause of the Constitution and amendments, bearing on the rights, privileges, and immunities of citizens, and a careful study of those decisions, as they relate to each of the subjects above set forth, must be the only satisfactory road to a mastery of the subjects. What follows is a mere surface index of the substance of the decisions upon the most important of those questions, intended to stimulate to a thorough study of the cases.
The citation of authorities in connection with a statement of the minor topics is deemed a sufficient reference to them.
Proceeding to consider the more important topics in the order of their presentation above, we come first to the subject ----
Taxation of the Citizens (Right 3 above).
The power of taxation of the citizen by the States is unlimited by law save concerning taxes on exports or imports or tonnage duties. It is limited in the United States by only three conditions, the first being that it cannot tax exports, the second that direct taxes shall be apportioned among the several States according to their respective numbers, and the third that all duties, imposts, and excises shall be uniform throughout the United States. (69)
The grant of taxing power to the United States by the Constitution has been held to be an absolute grant subject only to the above limitations. Moreover, the power of taxation possessed by the United States over citizens of the District of Columbia has been held to be as unlimited as that possessed by the States over their citizens.
Many cases have arisen in which the question was whether the particular tax involved in the controversy was a direct tax; but in all such cases the decision turned on that, as a question of fact, and was not instructive beyond the understanding of the particular statute involved; for, with the nature of the tax settled, the legal principles applicable to it were those stated above.
A most thorough and exhaustive discussion of the nature and extent of Federal taxing power and of what does and does not constitute a direct tax will be found in the case of Pollock v. Farmers' L. & T. Co.(70)
Of the Immunity of the Citizen from Arrest, while Attending Congress, and in Going to and Returning from the Same, and from Being Questioned in Any Other Place for Any Speech or Debate (Immunity 7 above).
This is an old and salutary provision intended to secure to the representative the utmost degree of freedom in the discharge of his public duties. A similar provision will be found in the constitutions of most of the States concerning their State legislators, and the provision was adopted from the privileges accorded to members of the British Parliament. As to the nature and extent of the privilege, the case of Kilbourn v. Thompson(71) will be found instructive. Mr. Justice Story in his Commentaries on the Constitution (Sw. 866) refers to it as a "great and vital privilege."
Of the immunity of the Citizen from State Interference with the Regulation of Commerce with Foreign Nations, and among the Several States and with the Indian Tribes (Immunity 11 above).
This exclusive power of regulating commerce was conferred upon Congress for a reason. It was the offspring of many short-sighted, vexatious, and discriminating regulations imposed by the States upon vessels from other States entering their ports, while they retained the power to legislate on the subject under the Articles of Confederation. The transfer of the subject to exclusive Federal control was made deliberately after these embarrassing experiences. Nearly a hundred years ago the Supreme Court declared that it was doubtful whether any of the evils of weakness under the Articles of Confederation contributed more to the adoption of the Constitution than the conviction that commerce ought to be regulated by Congress."
No clause of the Federal Constitution has given rise to more litigation than this so-called commerce clause. It was first interpreted by Chief Justice Marshall in Gibbons v. Ogden,(72) and its scope and legal effect have been under consideration in about two hundred and fifty cases since then decided by the Supreme Court of the United States. Many volumes have been written concerning the rights of citizens under this clause, and it would be beyond the scope of this work to set forth even an epitome of the decisions interpreting it rendered by the Supreme Court.
We shall content ourselves with a statement of a few of the leading principles settled by the adjudicated cases, and the remark that the litigation has, for the most part, arisen out of acts of State legislatures, which have been challenged as invading the exclusive province of Congress to regulate interstate commerce, etc.
The first important case arising under this clause was, as above stated, Gibbons v. Ogden,(73) and the last case of importance decided by the Supreme Court is the celebrated so-called "merger decision," involving the right of Congress, in the exercise of its power to regulate commerce, to pass laws forbidding the merger of corporations owning parallel and competing lines and engaged in interstate commerce.(74)
The master mind of Marshall in the first case announced the following fundamental principles, which remain undisturbed:
1. That the grant of powers to Congress, in the particulars named, was not only absolute and embraced the power to regulate navigation, but was exclusive of any rights of States to legislate on the subject.
2. That it did not affect the right of the States to legislate on purely internal commerce or to enact inspection laws and health laws, or purely police regulations.
3. That the laws last named "form a portion of that immense mass of legislation which embraces everything within the territory of a State, not surrendered to the general government; 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 Congress, and consequently they remain subject to State legislation."
4. But where the States, in the exercise of the powers last mentioned, enact laws which come in conflict with Federal laws regulating commerce, the acts of the State must yield to the laws of Congress. That the nullity of all such acts is produced by the declaration that the Constitution is supreme.(75)
Throughout all the multitudinous litigation which has followed arising under this clause the soundness of these principles has never been questioned. If the case has arisen upon a State statute the question has been, does the State statute directly legislate on the forbidden subject? If so, it is void. Does it although within the general scope of State power, in its effect regulate interstate commerce, etc.? If so, it must yield to the exclusive power of Congress to control.(76)
If it be a mere regulation of inspection, or health, or exercise of the unquestioned police powers of the State, and its effect on commerce be utterly incidental and not determinative, then it is a law within the powers of the State.
If the question has arisen upon a Federal statute, the first inquiry has invariably been, Is the law, fairly construed, a regulation of that class of commerce committed absolutely and exclusively by the Constitution to the regulation of Congress? If so, it is a valid law, for the power to legislate is as broad as the grant of exclusive control.
These questions have arisen in infinite variety and complexity, presenting new aspects in each successive case, and it is impossible to generalize them in this discussion. The opposing views in each case are the result of two theories which have given rise to most of the controversies between Federal and State authority, viz., on the one hand, the theory of broad latitudinarian construction of Federal powers, and, on the other, the theory of strict construction. Pursuing the one or the other of these theories, men of the highest intellect and character have, from the foundation of the government, been arrayed in opposition to each other upon every important question of construction that has arisen, and perhaps no more striking illustration of this irreconcilable conflict of views may be found in our whole judicial literature than in the earnest, almost angry, discordance of our Supreme Court in the last important decision on this commerce clause.(77)
But the constitutional inhibition does not prevent the States from enacting laws which prevent non-residents from engaging in certain classes of employments within their limits. Such, for example, is the right of a State to limit the right to fish and hunt, within her borders to her own citizens. It has been held that the States did not invest the Federal government with any portion of their power and control over fishing and hunting within their borders; that the fish and shellfish and game in every State belong to, peculiarly and of right, and form part of the food supply of, the people in each State, and that it is within the police powers of the State, without any right of interference by Federal authority, to determine who shall and who shall not take the fish and game within her borders, and even to prohibit the shipping of the same beyond the limits of the State. Thus when a Virginia law punished a citizen of Maryland for taking oysters from Virginia oyster beds, and he claimed that he was engaged in commerce, the Supreme Court sustained the State law, and denied the claim of license to fish in Virginia waters as a matter of commercial right.(78) So, a law of Connecticut regulating the manner of taking game in that State and forbidding its exportation was held valid.(79) The duty of preserving the game was declared to be a trust for her own people. And State laws prohibiting exhaustive methods of fishing in waters within State jurisdiction, or the use of destructive instruments, are within the powers of the State.(80)
The Right of the Citizen to the Writ of Habeas Corpus (Right 23 above)
Blackstone calls the writ of habeas corpus "the most celebrated writ in the English law,"(81) and he refers to the ruinous Habeas Corpus Act of England, 31 Charles II, c. 2, as "frequently considered as another Magna Charta."
The Supreme Court of the United States has characterized it: "The great writ of habeus corpus has been for centuries esteemed the best and only sufficient defense of personal freedom. In England, after a long struggle, it was firmly guaranteed by the famous Habeati Corpus Act of May 27, 1679. - - It was brought to America by the colonists and claimed as among the immemorial rights descended to them from their ancestors.(82) Of this writ it may be said truly that it bas elicited more encomiums from bench and bar than any other in the book, and that discussion of it seems to arouse whatever of eloquence judges and advocates may possess.
In form it is a writ emanating from the judicial source entrusted with its keeping and issuance, directed to the custodian of any person detained on a criminal or a civil charge, directing him to produce the body of the person in custody at a time and place designated in the writ, together with the causes of his detention, and then and there to submit to and receive whatever judgment the judge or court awarding the writ shall consider in that behalf. The name of the writ originated in the fact that at the time it came into use all writs in England were written in Latin, and this particular writ directed the custodian of the prisoner "habeas corpus," "thou shalt have the body" of so and so, at such and such time and place.
It is not within the purpose of this work to elaborate the different kinds of writs of habeas corpus and the different purposes for which they are invoked. That may be seen by reference to the authorities quoted. There were writs of habeas corpus ad respondendum, or to enable the party applying for the writ to obtain an answer of some sort from the party in custody; and writs ad satisfaciendum, or to satisfy a judgment or other demand, which writ does not exist with us; or ad proseguendm, ad testificandum, ad deliberandum, to prosecute something, to testify about something, to deliberate about something. It is a common thing, for example, where a prisoner confined in jail or penitentiary is a necessary witness at a trial, to have him produced in court by a writ of habeas corpus ad testificandum issued by the trial judge or other authority.
But the common writ the one cherished as none other, is the writ of habeas corpus ad subjiciendum et recipiendum, comuaanding the custodian to produce the body of his prisoner and submit to and receive whatever judgment the judge or court awarding the writ shall see fit to render. The power of the judge or court issuing the writ is, upon the production of the accused together with the causes of his detention, and after hearing the matter fully, to discharge him, admit him to bail, or remand him to custody. Nearly all the States have guarantees of the privileges of the writ of habeus corpus in their constitutions, and all have statutes providing for the manner of its issuing.
But there is this distinction between writs of habeas corpus issued by Federal courts and judges and those issued by State courts and judges. A writ may issue from Federal authority to a person holding another in custody under State authority, in certain cases.(83) But a State court or judge cannot issue a writ of habeas corpus against a person having a prisoner in custody under the authority of the United States.(84)
The reason for the distinction is obvious from the frame of the government, for the Federal jurisdiction is, in its sphere, supreme, and where Federal and State laws conflict the latter must yield to the former, and the view of their jurisdiction taken by Federal tribunals must prevail. So that while an inquiry by a Federal tribunal into a detention under State authority would be determinative, a like inquiry by a State tribunal into a detention under Federal authority would not be determinative or obligatory on the Federal authority.(85)
The cases cited above in the note attached to the statement of the rights of the citizen to the writ of habeas corpus (note 4, p. 125) will furnish the Student with such further information as he may desire concerning the origin, nature and history of, and the manner of applying for, the writ, and the cases to which it does not extend, as well as those to which it does extend. We may leave the subject with the final remark that the suspension of the writ, no matter what may have been the exigency on which such action has been justified, has always been viewed with the utmost jealousy by the American people, and the opinion of Chief Justice Taney in the habeas corpus case of Ex p. Milligan (86) is one of the finest pieces of judicial eloquence in American jurisprudence.
Of the Immunity of the Citizen Against Bills of Attainder and Ex Post Facto Laws. (Immunity 24 above).
This immunity is guaranteed, both as against the Nation and the State (Art. 1, Sec. 9, Cl. 3, and Art. I, See. 10, el. 1.)(87)
A bill of attainder is a legislative act which inflicts punishments without a judicial trial.(88) Such bills were, in England, sometimes directed against individuals by name and sometimes against a class. They were contrary to the whole spirit of our institutions, and so were forbidden by general consent in the Constitution, both as against the Nation and the State.
No question of importance arose from any attempt to pass such measures until the period of our Civil War, when laws enacted by Missouri and West Virginia, and even the rules adopted by the Supreme Court of the United States itself, were challenged as in effect bills of attainder. The discussions in the arguments and opinions in the case of Cummings v. Missouri,(89) and Ex p. Garland,(90) are full of historical and legal information on this subject, and should be carefully read by the student.
"An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed." The State legislature can pass no ex post facto law.(91) This is the language of Chief Justice Marshall in the first case in which such legislation came under the eye of the Supreme Court. And of the reasons leading to the adoption of those clauses of the Constitution forbidding such legislation either by the Nation or the State, he said: "Whatever respect might have been felt for the State sovereignties, it is not to be disguised that the framers of the Constitution viewed with some apprehension the violent acts which might grow out of the feelings of the moment.... The restrictions on the legislative power of the States are obviously founded in this sentiment."
But an act imposing a succession tax on an estate after its devolution, during the period of administration, was held not to be an ex post facto law. (92)
Of the Immunity of the Citizen Against State Laws Impairing the Obligation of Contracts (Immunity 29 above).
The same reasons which prompted the Federal guarantee against the passage of bills of attainder or ex post facto laws by the States doubtless produced this guarantee also.(93) It has given rise to an immense amount of litigation. The principle is so plain that a statement of the law is sufficient, but the difficulty and doubt in the many cases that have discussion of the nature and extent of the rights off the arisen have been in determining whether the State law assailed in a Particular case did impair the vested right claimed.
As may be seen by reference to the long list of authorities cited in connection with the statement of this immunity, it would be impossible to consider, in this volume, the numerous phases which the discussion of the nature and extent of the rights of the citizen under this clause has assumed. That would make a volume in itself.
The case which sets forth with most learning and ability the nature and extent of this particular Federal guarantee, and the one most frequently cited, is Charles River Bridge v. Warren Bridge.(94) It was decided in 1837, and the opinion of the court was delivered by Chief Justice Taney in one of the strongest of his many able opinions. But there were three dissents. The dissenting opinions of Mr. Justice McLean and Mr. Justice Story, the latter concurred in by Mr. Justice Thompson, are such striking, powerful presentations of opposing views that in them is found the germ of many a subsequent effort made to unsettle the principles fixed by the great decision. This case was confined, however, to a discussion of how far public grants of franchises are revocable by State legislation without violating the clause of the Constitution above referred to. It did not involve consideration of many other classes of State legislation upon which the question of the impairment of contracts has arisen.
One leading distinction, however, running through the decisions, should be briefly referred to, to wit: The prohibition does not restrain the States from changing remedies, and a change in a remedy provided to enforce a right is not necessarily an impairment of the right itself.(95)
To a full comprehension by the practicing lawyer of the meaning of this clause and its bearing upon State legislation, a study of the authorities cited in the footnote is necessary, indeed indispensable. As there is no middle ground between this brief consideration, and one so elaborate that it would occupy unwarranted space in this general treatise, the subject is left to some other author who shall deal with it as a specialty.
Of the Right of the Citizens of Each State to All the Privileges and Immunities of Citizens in the Several States. (Right 41 above).
This provision was in the Articles of Confederation. Indeed, it was the only direct guarantee from the United States to the individual citizen contained in that instrument.
In the first case decided by the Supreme Court, involving the construction of this clause, Chief Justice Marshall said that a corporation was "Certainly not a citizen" in the sense that the word is used in the clause referred to.(96) And in the next case the same illustrious authority held that a citizen of the United States, residing in any State of the Union, is a citizen of that State.(97) In later cases it has been repeatedly decided that corporations are not citizens of the State of their creation within the meaning of the clause now under consideration; that they are creatures of the local law of the place of their creation, without any absolute right to recognition in other States.(98)
A State statute denying jurisdiction to the State courts over a suit by a foreign corporation against a foreign corporation has been held not to violate this clause of the Constitution.(99) But when a State law made it a condition for the admission of a foreign corporation to do business in the State that the corporations admitted would abstain from removing any suits brought against it or otherwise resorting to the federal courts, the condition was held to be void as in conflict with the Constitution of the United States. This was decided, however, rather as an abridgement of the rights of the corporation under Amendment XIV than as against its right as the citizen of another State.(100)
A State law admitting a foreign corporation to do business in the State on the condition that creditors who were residents of the State granting the permit should have priority in the distribution of its assets over nonresident creditorti was likewise held to violate the constitutional guarantee against discrimination.(101) It was said, in one of the cases, that the only limit of the State's right to exclude foreign corporations is where they are employed by the Federal government or are strictly engaged in interstate or foreign commerce.(102)
A State law which imposes a tax upon resident merchants at one rate, and another tax upon non-residents, for the privilege of transacting the same character of business, at a higher or discriminating rate, is a violation of the provision we are discussing.(103)
In some of the cases which have been decided the State law has been assailed on the double ground that it discriminated against citizens of other States and was regulative of interstate commerce. The decisions rendered have in some instances held the law to be unconstitutional on the latter ground and have ignored the former, although it was apparently equally tenable.(104)
Under the decision in the famous Dred Scott case a free negro whose ancestors were brought to this country and sold as slaves was held not to be a "Citizen" in the sense that the word was used in the Constitution. Bitterly as this decision was assailed at the time it was rendered, its logic was unanswerable as the law then stood. This has been changed by the XIII, XIV, and XV Amendments, and it has been frequently said in the decisions upon those amendments that they were passed in order to reverse this ruling.
There are, however, sundry things concerning which States may legislate discriminating between residents and nonresidents, One of the earliest of these decisions was that marital rights of a special nature, bestowed by a State upon its own citizens residing within its borders, do not acrue to the nonresident widow of a deceased nonresident husband who owned property in that State. It was held that such rights were attached to the contract of marriage in cases in which the State controlled it and were not of the class of personal rights of a citizen intended by this clause of the Constitution.(105)
A State tax on shares of nonresidents in a corporation of Connecticut, on a basis different from that on which residents were taxed, was, under the peculiar tax laws of Connecticut, held not to be a discrimination.(106)
And a State law saving the statute of limitations to a resident plaintiff against an absent defendant, but allowing it to run against a nonresident plaintiff, has been held not to discriminate against the citizen of another State within the meaning of this clause. It was held to be a change of remedy and not the deprivation of a right.(107)
An act of a State legislature granting exclusive privileges for twenty-five years to maintain within a designated area a slaughter-house, landings for cattle, and yards for enclosing cattle intended for sale or slaughter, and prohibiting all others, was held to be within the police power of the State, unaffected by the Federal Constitution or its amendments, and to be a regulation for the health and comfort of the people.(108) A law of the State of Iowa making persons liable for any damages accruing from their allowing cattle from Texas to run at large and spread a disease known as Texas fever was held to work no discrimination, and to be within the police powers of the States.(109) A similar law against introducing diseased live stock into Colorado was upheld.(110) In the case of Rasmussen v. Idaho,(111) the proclamation of the governor of Idaho forbidding the introduction from other States of sheep with scab was held to be no discrimination against other States and a legitimate exercise of the police powers of the State.
State laws forbidding non-residents from fishing or hunting within the limits of the State, or prescribing terms upon which they way do so, have been upheld as constitutional, ou the ground that the States never surrendered to the Federal government any of their rights touching fishing or hinting; that the fish or game of the State is a part of the food supply of the citizens, in which the citizens of other States have no interest or personal rights or privileges; and that a State may control the subject in the exercise of its police power,(112) and as a thing held in trust for its own people.
The question of the right of the State to inspect meat and provision and other food supplies, and her right to regulate the liquor traffic, is the subject of a number of the decisions hereinafter considered, but in those cases decided adversely to the State the decision bas been placed either upon the interstate commerce clause or upon the rights asserted under the XIV Amendment, and they will be found under the discussion of the latter subject.
Of the Federal Guarantee of Extradition of Fugitives from Justice (Right 42 above).
Pursuant to this obligation the Congress has enacted statutes providing for the extradition from one State to another of fugitives from justice. These Federal statutes control the demand, and statutes have been passed in all the States providing measures in accordance with the Federal laws. In the first case of extradition presented to the Supreme Court, the prisoner was indicted in Canada and requisition was made by the Canadian government on the governor of Vermont, who undertook to deliver him. He applied for a habeas corpus on the ground that such a delivery could only be made to a foreign government on a requisition upon the United States, and that the United States would not, as had been shown by its action in another case, honor the requisition because there was no treaty. The Vermont court dismissed the writ, and the Supreme Court, by a divided court, sustained the action of the State court.(113) In another case it was held to be the duty of the governor of one State, on the demand of the governor of another State, and the production of the indictment, duly certified, to deliver up a fugitive from justice; that the function of the former is merely ministerial, and that he has no right to exercise any discretionary power; that he is under moral obligation to perform the compact of the Constitution, Congress having regulated the manner of performance; but that no law of Congress could coerce a State officer to perform his duty, and a motion for a mandamus against the governor was denied.(114) And again it was held that the Federal statute demanding surrender of a fugitive from justice found in one of the States or Territories, to the State in which he stands accused, applies to Territories as well as States and embraces every offense known to the law, including misdemeanors.(115)
In one case a man charged with crime in Kentucky fled to West Virginia. A requisition issued for him. While the governor of West Virginia was considering his extradition the man was seized in West Virginia, forcibly abducted to Kentucky, and there held for trial. He instituted proceedings seeking to have himself returned to West Virginia. The Supreme Court held that there was no mode provided by the Constitution or laws of the United States, by which Federal authority could restore him to West Virginia.(116)
And a fugitive returned to a demanding State has no immunity from other indictments against him by the State from which he fled, after he is returned.(117) But the Supreme Court has said that to extradite a man on one charge and try him on another is dishonorable.(118) The governor of a State, upon whom demand is made for the surrender to another State of a citizen who is charged with being a fugitive from justice, may refuse the requisition if it be satisfactorily shown to him that the accused was not in the State at the time the alleged offense was committed, or since, for in that case the fact that he fled from justice is negative.(119)
From the foundation of the government and notwithstanding the absolute power of Congress to regulate the terms of surrender of fugitives, the governors of States have been disposed to show independence on this subject of honoring requisitions. In the days of slavery it was difficult to secure the surrender of fugitive slaves, and impossible to secure the surrender of persons charged in a slave State with having aided slaves to escape and having then themselves fled. The case of Kentucky v. Dennison(120) is an illustration in point. In some States the executive, before honoring the requisition of the governor of the demanding State, claims the right to examine the indictment upon which the demand is based, and to determine whether it is in due form, or to decide whether it charges an offense punishable under the laws of the demanding State, which is equivalent to deciding a demurrer to the indictment; and even to hear testimony to determine the question of probable guilt or innocence. A notable instance of this is the case of a recent governor, indicted for complicity in the murder of his political rival, who, having fled first to one and then to another State, was demanded by the authorities of the State from which he fled, of the authorities of both States in which he sought asylum, but has been protected from delivery. Perhaps, in the instance cited, it was best so, but the better opinion is that if a crime is charged and demand is made, in due form, accompanied by an exemplified copy of the indictment, the duty of the executive upon whom the demand is made is to surrender the accused to the demanding State, whether he may think him properly or improperly indicted, innocent or guilty, leaving the questions of the sufficiency of the indictment and his guilt or innocence to be determined by the lawfully constituted authorities of the demanding State upon his trial there.(121)
The Guarantee to the Citizen that Persons Held to Service or Labor in One State and Escaping to Another Shall Not be Discharged Thereby from Such Service or Labor but Shall be Delivered Up. (Right 43 above).
This once exciting clause has, since the abolition of slavery, ceased to possess much practical importance. It may be left, with the authorities cited in connection with it, to the study of those interested in the controversies to which slavery gave rise.
Of the Federal Guarantee to the Citizen that His State Shall Have a Republican Form of Government. (Right 44 above).
In the first case in which the Supreme Court was called upon to enforce this guarantee it decided that the question which of two rival governments existing in a State was the lawful government of the State was not a judicial but a political question; that is, that it was to be decided by tbe legislative and executive departments and not by the judiciary. The case arose out of conditions bordering upon civil war in the State of Rhode Island in 1842, resulting from an attempt of certain citizens of that State to change the organic law of Rhode Island from government under a charter granted by Charles II, which it had continued as its form of government after the Revolution, to government under a new constitution framed by the people. The trouble originated in the fact that while it was alleged that a majority of the people desired a new constitution, there was no provision in the existing law for the calling of any convention. The charter government continued, notwithstanding certain people assembled and framed and attempted to put into operation a new government. One Dorr was chosen governor by the adherents of the new government, and at once came in conflict with the old regime. The dispute was popularly known as "Dorr's Rebellion," and the situation soon led to military conflict, the arrest, trial, and conviction of Dorr, and his sentence to imprisonment for life (although he was subsequently pardoned). In the excitement the Federal judiciary was appealed to, and to the appeal it gave the above reply.
The Federal executive and other departments had held intercourse with the old government and so continued to recognize it, and, although neither of the State governments could, as they were administered then, be said to be a republican government, under the decision that it was a political question, to be disposed of by Congress, the factions in Rhode Island were allowed to flounder on, and finally untangle their troubles for themselves without Federal interference. So in that instance this Federal guarantee of a republican government proved to be not a very practical thing.(122)
The next occasion upon which the Supreme Court considered this Federal guarantee was after the great Civil War. The State of Texas attempted, in 1861, to secede. Her government and her people waged war on the United States for four years. In 1865 she was overcome by force of arms, and her territory was occupied by the military forces of the United States, and her government was temporarily administered by provisional appointees of the President of the United States and afterwards by governors appointed under an act of Congress, by a military commander, Texas being a part of Military District No. 5, composed of Texas and Louisiana, pursuant to an Act of Congress of March, 1867. A State convention, assembled under the authority of the United States in 1866, passed an ordinance looking to the recovery of certain bonds alleged to belong to the State, and one J. W. Throckmorton, a governor whom that convention had elected, authorized the bringing of the suit. Two subsequent military governors, Hamilton and Pease, further ratified this action. The bill was an original bill filed by Texas as a State in the Supreme Court, and while this condition of her statehood continued it prayed an injunction concerning certain bonds and their delivery to the State. The defense, among other things, questioned:
1. The authority of the parties named to prosecute a suit in the name of Texas.
2. The right of Texas, after her course in the Civil War, to sue as a State of the Union.
It fell to the lot of Chief Justice Chase to decide the status of the States which had attempted to secede, after they were conquered by the United States and before they were fully restored to their relations as States of the Union. In a great opinion the following points were decided:
1. That the term State, as used in the Constitution, most frequently expresses the combined idea of people, territory, and government; 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 consent of the governed.
2. That the Union of these States under a common Constitution, forming a distinct and greater political unit, is that which was designated by the Constitution as the United States, and made, of the people and States composing it, one people and one country.
3. That the guarantee to every State of a republican form of government was a guarantee to the people of that State.
4. That the Union was indissoluble.
5. That the States nevertheless possessed a right of self-government, sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly or by fair implication delegated to the Union; that without the States in union there could be no such political body as the United States.
6. That the preservation and the maintenance of their governments was as much within the care of the Federal authority as was the preservation of the national government itself.
7. That the United States was an indestructible government of indestructible States.
8. That the guarantee of republican government in the Union, to the State, was as binding on the United States as the guarantee of perpetual union, and that Texas was entitled to the performance of that guarantee by the final act whereby she became a new member of the Union.
9. That her attempt at secession and all acts intended to give it effect were null.
10. That the State continued to exist as a member of the Union, notwithstanding its temporary government had been destroyed to preserve the Union.
11. That the United States, having preserved its own existence, was engaged in performing its equally sacred obligation to provide a republican form of government to the State.
12. That this was a political guarantee to be performed by the Congress.
13. That Congress was empowered to judge of the ways and means of accomplishing, that result, and the provisional and temporary military governments then existing were lawful means to that end in a case in which the hostile State government had been destroyed, and until new and loyal republican State governments could be organized.
14. That it behooved the judiciary to recognize the continual existence of the seceding States as members of the Union, notwithstanding the temporary suspension of their relations to the Union by the force of the events above referred to.
No epitome of this great decision can do it justice. It is among the most luminous expositions extant of the vital questions of which it treats, and was followed thenceforth in every department of the government.(123)
In a later case the point was made that the form of government of a State was not republican in the sense guaranteed by the Constitution; that is to say, that certain State statutes in the frame and execution were not. The Supreme Court reiterated that the question was a political question, and that if the "form of government" existing in a State was recognized by the legislative and executive departments, the judiciary ought not to question it, and must follow the interpretations of the State laws placed on them by the highest State court.(124)
In a very recent case the Supreme Court, called upon to decide upon the case of rival contestants for the office of governor of a State, declined to do so, declaring that it was pre-eminently a case for decision by the court of last resort in the State. When the Federal guarantee off a republican form of government, and the XIV Amendment were invoked, it dismissed the contention by declaring that the enforcement of that guarantee was intrusted to the political department of the government, and that the powers of the judiciary concerning it were not so enlarged by anything in the XIV Amendment as to give the court power to review the judgment of a State court of last resort on a question of State elections.(125)
From the foregoing, which embrace all the utterances of the Supreme Court concerning its powers under the guarantee clause, it will be seen that the citizen has little or nothing to hope for, in the way of its enforcement, from the Federal judiciary. Indeed, judging by the recent utterances of that court, not only in this regard, but on the subject of extradition,(126) and in numerous cases where attempts have been made to secure its aid against gross frauds the suffrage,(127) it would seem to be willing to surrender its existence and power as a coordinate department of the Federal government, and gladly abandon to Congress and the executive all efforts to enforce the law, except in matters not political.
We come now to consider those rights, privileges, and immunities of the citizen guaranteed by the early amendments to the Constitution.
The Immunity of the Citizen Against Any Law of Congress Respecting an Establishment of Religion or Prohibiting the Free Exercise Thereof. (Amendment I.)
Either by the bill of rights, the constitution, or the law, of every State of the Union, a similar guarantee is given to its citizens, concerning State laws. This does not mean that the people either of the Nation or of the State hold religion in contempt or desire to belittle it. On the contrary, the oldest of the bills of rights contains reverential references to religion or the duty which we own to our Maker. The Christian religion was judicially declared to be a part of the common law of Pennsylvania.(128) But the English Established Church had become exceedingly obnoxious to the colonists, and their ideas of religious liberty had been imbibed from Dutch and Lutheran examples, and stimulated by what they regarded as oppressions of the regularly established Church. Hence the prohibition above set forth.(129)
The first case arising under this clause involved the effect of the constitutions, national and State, and laws enacted thereunder, upon property of the Episcopal Church in Virginia. The case arose touching certain church property in Alexandria, which city was at that time in the District of Columbia. The court held that the religious establishment of England was adopted, so far as applicable, in the colony of Virginia, and that the freehold of church lands was in the parson; that legislative grants were irrevocable; that the Act of Virginia of 1776, confirming to the Episcopal Church, as successor of the Established Church, its rights to lands, was not contrary to the State constitution and did not infringe any rights, civil, political, or religious, under the State constitution; that later acts seeking to divest the Episcopal Church of Virginia of property acquired previous to the Revolution were null, etc.(130) By this decision, and others similar in other States, the Episcopal Church retained much property in the older colonies.
The Supreme Court has held that the prohibition above does not make good the plea of a person accused of an offense against morality and decency, that he has acted pursuant to the tenets of his religious belief, which were those of a Mormon.(131) It was said, "Religious freedom is guaranteed everywhere throughout the United States so far as congressional interference is concerned." Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were violative of social duties or subversive of good order. "Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.' ' The law punishing polygamy was upheld as intended to prevent a pernicious practice, no matter what was the belief of the party engaging in it The opinion delivered by Chief Justice Waite is both interesting and instructive and equally applicable to other religious immoralities than polygamy.
In a later case the Supreme Court declared that bigamy and polygamy are crimes by the laws of the United States, by the laws of Idaho, and by the laws of all civilized and Christian countries; and to call their advocacy a tenet of religion is to offend the common sense of mankind; that a crime is none the less such, nor less odious, because sanctioned by what any particular sect may designate as religion; and that the first amendment to the Constitution was never intended as a protection from punishment for acts inimical to the peace, good order, and morals of society.(132)
ln a case recently decided, it was held that placing an isolated hospital building built by the government in charge of another hospital, which was under the control of Sisters of the Roman Catholic Church, was not obnoxious to the constitutional prohibition against laws respecting an establishment of religion.(133)
Of the Right of the Citizen to Free Speech. (Amendment I.)
This right is also guaranteed to their citizens by all the States. Of it, it is sufficient to say that it is a right to be confined within the bounds of decency and morality, and gives mo immunity from arrest and punishment for treasonable, seditious, and inflammatory appeals. In time of war numerous arrests have been made by 'the authority of military commissions, and citizens have been actually deported by presidential orders without trial by jury, and after vainly seeking redress under habeas corpus proceedings.(134) And in time of peace, under Federal statutes authorizing the deportation of anarchists, persons have, from time to time, been indicted, arrested, and punished or deported, for seditious, anarchistic, and nihilistic utterances and publications.
The justification for such action is that while the constitutions, Federal and State, guarantee freedom of speech and of the press, the persons so speaking or publishing are answerable to the public authorities for their acts in the interests of good citizenship, morality, and decency.(135)
Of the Freedom of the Press. (Amendment I.)
The freedom of the press has been described as one of the great bulwarks of liberty. Unquestionably the suppression of fair discussion of public measures in the press was, under the system against which the colonists rebelled, one of the most odious forms of tyranny. On the other hand, those who, in that day, were so ardent for the absolute liberty of the press could not have foreseen the immense increase in public and private printed matter which was to occur; the almost unlimited power for good or evil which the press was to possess; the irreparable nature of the injuries which it is often able to inflict; or the irresponsible hands into which so large a portion of the press of our day was, in time, to pass.(136)
The State constitutions and statutes which guarantee the freedom of the press, for the most part, couple with that guarantee the condition that the persons so printing shall be answerable in damages for any abuse of the privilege. But the privilege itself is regarded as of such dignity and sanctity that the courts of sundry States have held that an injunction will not lie to restrain the publication of an alleged libel, and the only redress of a party libeled is to bring an action for damages after the fact or prosecute the offender criminally.(137)
Rights Guaranteed by Amendments II - VIII, XI, and XII.
Of the other rights guaranteed by the amendments from II to VIII we shall not speak in detail, because their nature, extent, and full interpretation will be found sufficiently considered in the authorities cited in connection with their statement.(138) Nor do the amendments numbered XI and XII bear directly on our subject.
Having now come to the war amendments, let us proceed to consider them in their order.
(1) Broadhead's History of New York, 1770.
(2) "The practice of setting apart section No. 16 of every township of public lands, for the maintenance of public schools is traceable to the ordinances of 1785, being the first enactment for the disposal by sale of the public lands in the western territory. The appropriation of public lands for that object became a fundamental principle by the ordinance of 1787, which settled terms of compact between the people and States of the northwestern territory, and the original States, unalterable except by consent. One of the articles affirmed that `religion, morality, and knowledge, being necessary for good government and the happiness of mankind.' and ordained that 'schools. and the means ot education, should be forever encouraged.' This principle was extended, first by congressional enactment (1 Stat. at large, 550, para. 6), and afterward, in 1802, by compact between the United States and Georgia, to the southwestern territory. The earliest development of this article in practical legislation, is to be found in the organization of the state of Ohio, and the adjustment of its civil polity, according to the ordinance. preparatory to its admission to the Union." Cooper v. Roberts, (1855) 18 How. U.S. 177.
(3) So persuasive of all our early acts were the examples ol the Dutch that even our national emblem is singularly like the flag of the United Netherlands.
(4) Corfield V. Coryell. (1823) 4 Wash. U.S. 371. See also Ward v. Maryland, (1870) 12 Wall. U.S. 430.
(5) 16 Wall U.S. 76.
"The Constitution does not define the privileges and immunities of citizens. For that definition we must look elsewhere." Minor v. Happersett, (1874) 21 Wall. U.S. 170.
(6) Revised Code of Virginia, 1819, Vol. 1. page 31.
(7) "The Confederation was a league of friendship of the States with each other, so declared in the articles and entered into `for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to or attacks made upon them, or any of them, on account of religion. sovereignty, trade. or any other pretense whatever.' But its articles did not form a constitution or ordinance of government, with power to enforce its provisions upon each other, or even a compact having any coherence or binding force other than that of a league of friendship, which its members only claimed them to constitute." Wharton v. Wise. (1894) 153 U.S. 167.
(8) "A reasonable interpretation of that instrument [the Federal Constitution] necessarily leads to the conclusion that the powers so granted are never exclusive of similar powers existing in the States, unless where the Constitution has expressly. in terms, given an exclusive power to Congress, or the exercise of a like power is prohibited to the States, or there is a direct repugnancy or incompatibility in the exercise of it by the States. The example of the first claim is to be found In the exclusive legislation delegated to Congress over places purchased by the consent of the legislature of the State in which the same shall be, for forts, arsenals, dock-yards, etc.; of the second claim, the prohibition of a State to coin money or emit bills of credit; of the third class, as this court have already held, the power to establish an uniform rule of naturalization, and the delegation of admiralty and maritime jurisdiction. In all other cases not falling within the classes already mentioned, it seems unquestionable that the States retain concurrent authority with Congress, not only upon the latter and spirit of the Eleventh Amendment of the Constitution, but, upon the soundest principles of general reasoning.
There is this reserve, however, that in cases of concurrent authority, where the laws of the States and of the Union are in direct and manifest collision on the same subject, those of the Union, being 'the supreme law of the land,' are of paramount authority, and the State laws, so far, and so far only, as such incompatibility exists, must necessarily yield." Houston v. Moore, (1820) 5 Wheat. U.S. 49. See also M'Culloch v. Maryland, (1819) 4 Wheat. U.S. 406; Cohen v. Virginia, (1821) 6 Wheat U.S. 414; Ableman w. Booth, (1858) 21 How. U.S. 516;
Legal Tender Cases, (1870) 12 Wall. U.S. 543; Tarble's Case, (1871) 13 Wall. U.S. 406; Ex p. Siebold. (1879) 100 U. S. 398; Chinese Exclusion Case, (1889) 130 U.S. 604; Is re Quarles, (1895) 158 U.S. 535.
(9) Civil Rights Cases, (1883 109 U.S. 3.
(10) "A State has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or retained by the Constitution of the United States. By virtue of this, it is not only the right, but the boundless and solemn duty of a State, to advance the safety. happiness, and prosperity of its people, and to provide for its general welfare, by any and every act of legislation which it may deem to be conducive to these ends, where the power over the particular subject, or the manner of its exercise is not surrendered or restrained in the manner just stated. All those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called `internal police,' are not thus surrendered or restrained; and consequently, in relation to these, the authority of the State is complete, unqualified, and exclusive." New York v. Mila, (1837) 11Pet. U.S. 139.
"Both the States and the United States existed before the Constitution. The people, through that instrument, established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the confederate government, which acted, with powers greatly restricted, only upon the States. But in many articles of the Constitution the necessary existence of the States, and, within their proper spheres, the independent authority of the States, is distinctly recognized. To them nearly the whole charge of interior regulation is committed or left; to them and to the people all powers not expressly delegated to the national government are reserved. The general condition was well stated by Mr. Madison in The Federalist, thus: `The Federal and State governments are in fact but different agents and trustees of the people, constituted with different powers and designated for different purposes'" Lane County v. Oregon, (1868) 7Wall. U.S. 76.
(11) Under the very peculiar constitution of this government, although the citizens owe supreme allegiance to the Federal government, they owe also a qualified allegiance to the State in which they are domiciled. Their persons and property are subject to its laws. The Brig Army Warwick, (1862) 2 Black U.S. 673.
(12) Ex p. Yarbrough. (1884) 110 U.S. 651; in re Green, (1890) 134 U.S. 377; McPherson v. Blacker, (1892) 146 U.S. 1; Wiley v. Sinkler, (1900) 179 U.S. 58; Swaford v. Templeton,. (1902) 185 U.S. 487.
"The right to vote for members of the Congress of the United States is not derived merely from the constitution and laws of the State in which they are chosen, but has its foundation in the Constitution of the United States." Wiley v. Sinkler (1900) 179 U.S. 58, approving Ex p.Yarbrough, (1884) 110 U.S. 651.
(13) Dred Scott v. Sandford, (1856) 19 How. U.S. 393; Veazie Bank v. Fenno, (1869) 8 Wall. U.S. 533; Scholey V. Rew, (1874) 23 Wall. U.S. 331; De Treville v. Smalls, (1878) 98 U.S. 517; Gibbons v. District of Columbia, (1886) 116 U.S. 404; Pollock v. Farmers' L & T. Co., (1895) 157 U.S. 429; Pollock v. Farmers' L. & T. Co., 158 U.S. 601; Thomas v. U.S, (1904) 192 U. S. 363.
See infra note 9, P. 114.
"The men who framed and adopted that instrument [the Constitution] had just emerged from the struggle for independence, whose rallying cry had been that `taxation and representation go together'....The States were about, for all national purposes embraced in the Constitution, to become one, united under the same laws. But as they still retained their jurisdiction over all persons and things within their territorial limits, except where surrendered to the general government or restrained by the Constitution, they were careful to see to it that taxation and representation should go together, so that the sovereignty reserved should not be impaired, and that when Congress, and especially the House of Representatives, where it was specifically provided that all revenue bills must originate, voted a tax upon property, it should be with the consciousness, and under the responsibility, that in so doing the tax so voted would proportionately upon the immediate constituents of those who imposed it." Pollock v. Farmers' L.& T.Co., (1895) 157 U.S. 429.
(14) "The direct and declared object of this census is, to furnish a standard by which `representatives, and direct taxes, may be apportioned among the several States which may be included within this Union.'" Loughborough v. Blake, (1820) 5 Wheat. U.S. 317.
(15) "The House of Representatives has the sole right to impeach officers of the government. and the Senate to try him." Kilbourn v. Thompson, (1880) 103 U.S.190.
(16) Anderson v.Dunn, (1821) 6 Wheat. U.S. 204; Coxe v. MClenachan, (1798) 3 Dall. U.S. 478; Kilbourn v. Thompson, (1880) 103 U.S. 168.
(17) Field v.Clark, (1802) 143 U.S. 649; Twin City Bank v. Nebeker (1897) 167 U.S. 196.
"The construction of this limitation is practically well settled by the uniform action of Congress. According to that construction, it has been confined to bills to levy taxes in the strict sense of the words, and has not been understood to extend to bills for other purposes which incidentally create revenue.'" U.S. v. Norton, (1875) 1 U.S. 569; Twin City Bank v. Nebeker, (1897) 167 U.S. 202.
(18) Field v. Clark (1892) 143 U.S. 649; U.S. v. Ballin (1892) 144 U.S. 1; Twin City Bank v. Nebeker (1897) 167 U. S. 196; La Abra Silver Min. Co. v. U. S., (1899) 176 U. S. 423; Wilkes County v. Coler, (1901) 180 U.S. 506; Fourteen Diamond Rings v. U.S. (1901) 183 U. S. 176.
"The purpose of the Constitution is to secure to the people of this country the best legislation by the simpleat means. Its framers being mindful of the errors and oversights which are bred in the heat and strife and divided responsibility of legislative assemblies, and which they had repeatedly beheld in State legislatures, determined to secure to the people the benefits of revision. and to unite with the power of revision the check of undivided responsibility, and to place the power in the hands of the person in whom the nation reposed, for the time being. the most confidence" U.S. v. Well, (1894) 29 Ct. Cl. 540.
(19) Hylton v. U.S. (1796) 3 Dall. U.S. 171; M'Culloch v. Maryland, (1819) 4 Wbeat. U.S. 316; Loughborough v. Blake, (1820) 5 Wheat. U.S. 317; Obborn v. U. S. Bank (1824) 9 Wheat. U.S. 738; Weston w. Charleston, (1829) 2 Pet. U.S. 449; Dobbins v. Erie County, (1842) 16 Pet. U.S. 435; Thurlow v. Massachusetts, (1947) 5 How. U.S. 504; Cooley v. Board of Wardens, (1851) 12 How. U.S. 299; McGuire v. Massachusetts, (1865) 3 Wall. U.S. 387; Van Allen v. Assessors, (1865) 3 Wall. U.S. 573; Bradley v. People, (1866) 4 Wall. U.S. 459; License Tax Cases (1866) 5 Wall. U.S. 462; Pervear w. Massachusetts. (1866) 5 Wall. U.S. 475; Woodruff v. Patham, (1868) 8 Wall. U.S. 123; Hinson v. Lott, (1868) 8 Wall. U.S. 148; Veazie Bank v. Fenno, (1869) 8 Wall. U.S. 633; Collector v. Day, (1870) 11 Wall. U.S. 113; U.S. v. Singer, (1872) 15 Wall. U.S. 111; State Tax on Foreign-held Bonds, (1872) 15 Wall. U.S. 300; U.S. v. Baltimore, etc., R. Co., (1872) 17 Wall U.S. 322; Union Pac. R. Co. v. Peniston, (1873) 18 Wall. U.S. 5; Scholey v. Row, (1874) 23 Wall. U.S. 331; Merchants Nat. Bank v. U.S. (1879) 101 U. S. 1; Springer v. U.S. (1881) 102 U.S. 592; Legal Tender Cases, (1884) 110 U.S. 421; Head Money Cases (1884) 112 U.S. 680; Van Brocklin v. Tennessee 117 U.S. 151; Field w. Clark, (1892) 143 U. S. 649. New York, etc., R. Co. v. Pennsylvania, (1894) 153 U.S. 628; Pollack v. Farmers' L. & T. Co., (1895) 157 U.S. 429; U.S. v. Realty Co., (1896) 163 U.S. 427; In re Kollock, (1807) 165 U.S. 526; Nicol v. Ames, (1899)
173 U.S. 509; Knowlton v. Moore, (1900) 178 U.S. 41; Delima v. Bidwell, (1901) 182 U.S. 1; Dooley v. U.S. (1901) 182 U.S. 222; Fourteen Diamond Rings v. U.S. (1901) 183 U.S. 176; Felsenbeld v. U.S., (1902) 186 U.S. 126; Thomas v. U.S. (1904) 192 U.S. 363. See supra, note 3, p. 112.
(20) Gibbons v. Ogden, (1824) 9 Wheat. U.S. 1; Brown v. Maryland (1827) 12 Wheat U.S. 419; Willson w. Black Bird Creek Marsh Co., (1829) 2 Pet. U.S. 245; Worcester v. Georgia, (1832) 6 Pet. U.S. 515; New York v. Miln, (1837) 11 Pet. U.S. 102; U. S. v. Coombs, (1838) 12 Pet. U.S. 72; Holmes v. Jennison, (1840) 14 Pet. U.S. 640; Thurlow v. Massachusetta, (1847) 5 How. U.S. 604; Smith v. Turner, (1849) 7 How. U.S. 283; Nathan v. Louisiana (1850) 8 How. U.S. 73; Mager v. Grima (1850) 8 How. U.S. 490; U. S. v. Marigold. (1850) 9 How. U.S. 560; Cooley v. Board of Wardens, (1851) 12 How. U.S. 299; The Propeller Genesee Chief v. Fitzhugh, (1851) 12 How. U.S. 443; Pennsylvania v. Wheeling, etc., Bridge Co., (1851) 13 How. U.S. 518; Veazie v. Moore, (1862) 14 How. U.S. 568; Smith v. Maryland, (1855) 18 How. U.S. 71; Pennsylvania v. Wheeling. etc., Bridge Co., (1853) 18 How. U.S. 421; Sinnot v. Davenport (1859) 22 How. U.S. 227; Foster v. Davenport. (1859) 22 How. U.S. 244; Conway v. Taylor(1861) 1 Black U.S. 603; U.S. v. Holliday, (1865) 3 Wall. U.S. 407; Gilman v. Philadelphia (1865) 3 Wall. U.S. 713; The Passaic Bridges, 3 Wall. U.S. 782; Southern Steamship Co. v. Port Wardens (1867) 6 Wall. U.S. 31; Crandall v. Nevada, (1867) 6 Wall. U.S. 35; White's Bank v. Smith (1868) 7 Wall. U.S. 646; Waring v. Mobile (1868) 8 Wall. U.S. 110; Paul v. Virginia (1868) 8 Wall. U.S. 168; Thomson v. Pacific R. Co. (1869) 9 Wall.U.S. 579; Downham v. Alexandria (1869) 10 Wall. U.S. 173; Clinton Bridge (1870) 10 Wall. U.S. 454; The Daniel Ball (1870) 10 Wall U.S.557; Liverpool Ins. Co. v. Massachusetts (1870) 10 Wall U.S. 566; The Montello (1870) 11 Wall. U.S. 411; Ex p. McNiel (1871) 13 Wall U.S. 236; State Freight Tax Case (1872) 15 Wall. U.S. 232; State Tax on Railway Gross Receipts (1872) 15Wall. U.S. 284; Osborne v. Mobile (1872) 16 Wall. U.S. 479; Chicago, etc., R. Co. v. Fuller (1873) 17Wall. U.S.560; Bartemeyer v. Iowa (1873) 18 Wall. U.S. 129; Delaware Railroad Tax (1873) 18 Wall. U.S. 206; Peete v. Morgan (1873) 19 Wall. U.S. 581; Dubuque, etc., R. Co. v. Richmond (1873) 19 Wall. U.S. 584; Baltimore, etc., R. Co. v. Maryland (1874) Wall. U.S. 456; The Lottawanna, (1874) 21 Wall. U.S. 558; Waltan v. Missouri, (1875) 91 U.S. 275; Henderson v. New York. (1876) 92 U. & 259; Chy Long v. Freedman. (1875) 92 U.S. 275; South Carolina v. Georgia, (1876) 93 U.S. 4; Sherlock v. Alling, (1876) 93 U.S. 99; U.S. v. 43 Gallons of Whisky, (1876) 93 U.S. 188; Foster v. New Orleans (1876) 94 U.S. 246; MaCready v. Virginia, (1876) 94 U.S. 391; @niW, Hannibal Etc., R. Co. v. Husen, (1877) 95 U.S. 465; Pound v. Turck, (1877) 95 U.S. 459; Hall v. De Cuir, (1877) 95 U.S. 485; Pensacola Tel. Co. v. Western Union Tel. Co., (1877) 96 U.S. 1; Boston Beer co. v. Massachusetts (1877) 97 U.S. 25; Cook v. Pennsylvania (1878) 97 U.S. 566; Wheeling, etc., Transp. Co. v. Wheeling (1878) 99 U.S. 273; Northwestern Union Packet Co. v. St. Louis (1879) 100 U.S. 423; Guy v. Baltimore (1879) 100 U.S. 434; Kirtland v. Hotchkiss (1879) 100 U. S. 491; Howe Mach. Co. v. Gage, (1879) 100 U. S. 676; Trade-mark Cases (1879) 100 U.S. 82; Wilson v. McNamee, (1881) 102 U.S. 572; Tiernan v. Rinker, (1880) 102 U. S. 123; Lord v. Goodall, etc., Steamship Co., (1881) 102 U. S. 641; Mobile County v. Kimball, (1881) 102 U.S. 691; Western Union Tel. Co. v. Texas, (1881) 105 U.S. 460; Newport, etc., Bridge Co. v. U.S., (1881) 105 U. S. 470; Wiggins Ferry Co. v. East St. Louis, (1882) 107 U.S. 365; Turuer v. Maryland, (1882) 107 U.S. 38; Escanaba etc., Transp. Co. v. Chicago, (1892) 107 U. S. 678; Miller v. New York, (1883) 169 U.S. 383; Moran v. New Orleans. (1884) 112 U.S. 69; Foster v. Kansas, (1884) 112 U.S. 201; Head Money Cases. (l884) 112 U.S. 680; Cardwell v. American Bridge Co., (1885) 113 U. S. 205; Cooper Mfg. Co. v. Ferguson, (1885) 113 U.S. 727; Gloucester Ferry Co. v. Pennsylvania. (1885) 114 U.S. 196; Brown v. Houston. (1895) 114 U.S. 622; Railroad Commission Cases (1886) 116 U.S. 307, 347, 352; Walling v. Michigan, (1886) 116 U.S. 446; Coe v. Errol, (1886) 116 U.S. 517; Pickard v. Pullman Southern Car. Co., (1886) 117 U.S. 34; Tennessee v.Pullman Southern Car Co. (1886) 117 U.S. 51; Morgan's Steamship Co. v. Louisiana Board of Health (1886) 118 U.S. 455; Wabash, etc., R. Co. v. Illinois (1886) 118 U.S. 557; U.S. v. Kagama (1886) 118 U.S. 375; Philadelphia Fire Assoc v. New York (1886) 119 U.S. 110; Johson v. Chicago, etc., Elevator Co. (1886) 119 U.S. 388; Robbins v. Shelby County Taxing Dist. (1887) 120 U.S. 489; Corson v. Maryland, (1887) 120 U. S. 502; Fargo v. Michigan, (1887) 121 U.S. 230; Philadelphia.. etc., Steamship Co., v. Pennsylvania. (1887) 122 U.S. 322; Western Union Tel. Co. v. Pendleton (1887) 122 U.S. 347; Sands v. Manitee River Imp. Co.. (1887) 123 U.S. 288; Smith v. Alabama (1888) 124 U.S. 465; Willamette Iron Bridge Co. v. Hatch (1888) 125 U.S. 1; Pembina Consol. Silver Min., etc., Co. v. Pennsylvania (1888) 126 U.S. 181; Bowman v. Chicago, etc., R. co. (1888) 125 U.S. 406; Western Union Tel. Co. v. Atty.-Gen. (1888) 125. U.S. 630; California v. Central Pac. R. Co., (1889) 127 U. S. 1; Ratterman v. Western Union Tel. Co. (1888) 127 U.S. 411; Leloup v. Mobile, (1888) 127 U.S. 640; Kidd v. Pearsaon, (1888) 128 U. S. 1; Asher v. Texas (1888) 128 U.S. 129; Nashville, etc., R. co. v. Alabama, (1888) 128 U.S. 96, Stoutenburgh v. Hennick, (1889) 129 U.S. 141; Kimmish v. Ball, (1889) 129 U.S. 217; Western Union Tel. Co. v. Alabama State Board of Assessment, (1889) 132 U.S. 472; Fritts v. Palmer, (1889) 132 U.S. 282; Louisville, etc. R. Co. v. Mississippi, (1890) 133 U.S. 587; Leisy v. Hardin (1890) 135 U.S. 100; Cherokee Nation v. Southern Kansas R. Co. (1890) 135 U.S. 641; McCall v. California, (1890) 136 U.S. 104; Norfolk, etc., R. Co. v. Pennsylvania, (1890) 136 U.S. 114; Minnesota v. Barber, (1890) 136 U.S. 318, Texas, etc., R. Co. v. Southern Pac. Co., (1890) 137 U.S. 48; Brimmer v. Rebman, (1891) 138 U.S. 78; Manchester v. Massachusetts (1891) 139 U. S. 240; In re Rahrer, (1891) 140 U.S. 646; Pullman's Palace Car Co. v. Pennsylvania, (1891) 141 U.S. 18; Massachusetts v. Western Union Tel. Co.. (1891) 141 U.S. 40; Crutcher v. Kentucky, (1891) 141 U.S. 47; Voight v. Wright (1891) 141 U.S. 62; Henderson Bridge Co. v. Henderson (1891) 141 U.S. 679; In re Garnett (1891) 141 U.S. 1; Maine v. Grand Trunk R. Co., (1881) 142 U.S. 217; Nishimura Ekiu v. U.S. (1892) 142 U.S. 651; Pacific Express Co. v. Seibert, (1802) 142 U.S. 339; Horn Silver Min. Co. v. New York, (1892) 143 U.S. 305; Field v. Clark. (1892) 143 U.S. 849; O'Neil v. Vermont. (l892) 144 U.S. 323; Ficklen v. Shelby County Taxing Dist. (1892) 145 U.S. 1; Lehigh Valley R. Co. v. Pennsylvania. (1892) 145 U.S. 102; Harman v. Chicago, (1893) 147 U.S. 396; Monongahela Nav. Co. v. U.S. (1893) 148 U.S. 312; Brennan v. Titusville, (1894) 153 U.S. 289; Brass v. North Dakota. (1894) 163 U.S. 391; Ashley v. Ryan. (1894) 153 U.S. 436; Luxton v. North River Bridge Co. (1894) 153 U.S. 525; Postal Tel.-Cable Co. v. Charleston (1894) 153 U.S. 692; Covington, etc.. Bridge Co. v. Kentucky (1894) 154 U.S. 204; Interstate Commerce Commission v. Brimson (1894) 154 U.S. 447; Plumley v. Massachusetts(1894) 155 U.S. 461; Texas, etc. R. Co. v. Interstate Transp. Co., (1895) 155U.S. 585; Hooper v. California (1895) 155 U.S. 648; Postal Tel.-Cable Co. v. Adams (1895) 155 U.S. 688; U.S. v. E.C. Knight Co., (1895) 156 U.S. 1; Emert v. Missouri (1895) 156 U.S. 296; Pittsburg, etc., Coal Co. v. Louisiana (1895) 156 U.S. 590; Gulf, etc., R. Co. v. Hefley (1895) 158 U.S. 98; New York, etc., R. Co. V. Pennsylvania (1895) 158 U.S. 431; In re Debs (1895) 158 U.S. 564; Greer v. Connecticut (1896) 161 U.S. 519; Western Union Tel. Co. v. James, (1896) 162 U.S. 650; Western Union Tel. Co. v. Taggart, (1896) 163 U. S. 1; Illinois Cent. R. Co. v. Illinois, (1896) 163 U. S. 142; Hennington v. Georgia (1896) 163 U.S. 299; Osborne v. Florida, (1897) 164 U.S. 650; Scott v. Donald, (1897) 165 U.S. 58; Adams Express Co. v. Ohio State Auditor (1897) 165 U.S. 194; Lake Shore, etc., R. Co. v. Ohio (1897) 165 U.S.365; New York, etc., R.Co.v.New York (1897) 165 U.S. 628; Gladson v. Minnesota (1897) 166 U.S. 427; Henderson Bridge Co.v. Kentucky (1897) 166 U.S. 150; St. Anthony Falls Water Power Co. v. St. Paul Water Com'rs (1897) 168 U.S. 349; Chicago, etc., R. Co. v. Solan (1898) 169 U.S. 133; Missourti, Etc., R. Co. v. haber (1898) 169 U.S. 613; Richmond, etc., R. Co. v. R. A. Patterson Tobacco Co., (1898) 169 U.S. 311; Rhodes v. Iowa (1898) 170 U.S. 412; Vance v. W.A. Vandercook Co., (1898) 170U.S. 438; Schollenberger v. Pennsylvania (1898) 171 U.S. 1; Collins v. New hampshire (1898) 171 U.S. 30; Patapaco Guano Co. v. North Carolina Board of Agriculture (1898) 171 U.S. 345; New York v. Roberts (1898) 171 U.S. 658; Hopkins v. U.S. (1898) 171 U.S. 578; Anderson v. U.S. (1898) 171 U.S. 604; Green Bay, etc., Canal Co. v. Patten Paper Col, (1898) 172 U.S. 58; lake Shore, etc., R. Co. v. Ohio (1899) 173U.S. 285; Henderson Bridge Co. v. Henderson (1899) 173U.S. 592; Missouri, etc., R. Co. v. McCann (1899) 174 U.S. 580; Addyston Pipe, etc., Co. v. U.S. (1899) 175 U.S. 211;Louisiana v. Texas (1900) 176 U.S. 1; U.S. v. Bellingham Bay Boom Co. (1900) 176 U.S. 211; Lindsay, etc., Co. v. Mullen (1900) 176 U.S. 126; Water-Pierce Oil Co. v. Texas (1900) 177 U.S. 28 New York L. Ins.Co. v. Cravens (1900) 178 U.S. 389; Scranton v. Wheeler (1900) 179 U.S. 141; Williams v. Fears (1900) 179 U.S. 270; Wisconsin etc., R. Co. v. Jacobson (1900) 179 U.S. 287; Chesapeake, etc., R. Co. v. Kentucky (1900) 179 U.S. 388; Reymann Brewing Co. v. Brister (1900) 179 U.S. 445; W. W. Cargill Co. v. Minnesota (1900) 180 U.S. 452; Rasmussen v. Idaho (1901) 181 U.S. 198; Smith v. St. Louis, etc., R. Co. (1901) 181 U.S. 248; Capital City Dairy Co. v. Ohio (1902) 183 U.S. 238; Louisville,etc., R. Co. V Kentucky (1902) 183 U.S.503; Nutting v. Massachusetts (1902) 183 U.S. 553; McChord v. Louisville, etc., R. Co.(1902) 183 U.S. 483; Louisville, Etc., R. Co. v. Eubank (1902) 184 U.S. 27; Stockard v. Morgan (1902) 185 U.S. 27; Minneapolis, etc., R. Co. v. Minnesota (1902) 186 U.S. 257; Reid v. Colorado (1902) 187 U.S. 137; Western Union Tel. Co. v. New Hope (1903) 187 U.S. 419; Diamond Glue Co. v. U.S. Glue Co. (1903) 187 U.S. 611; Lousiville, etc., Ferry Co. v. Kentucky (1902) 188 U.S. 385; U.S. v. Lynah (1903) 188U.S. 445; Cummings v. Chicago (1903) 188 U.S. 410; The Roanoke (1903) 189 U.S. 185; Montgomery v. Portland (1903) 190 U.S. 89; Petterson v. Bark Eudora (1903) 190 U.S. 169; Allen v. Pullman's Palace Car Co., (1903) 191 U.S. 171; New York v. Knight (1904) 192 U.S. 21; Postal Tel.-Cable Co. v. Taylor (1904) 192 U.S. 64; Crossman v. Lurman (1904) 192 U.S. 189; St. Clair County v. Interstate Sand Co., etc., (1904) 192 U.S. 189; Buttfield v. Stranahan (1904) 192U.S. 470; American Steel, etc., Co. v. Speed (1904) 192 U.S. 500; Northern Securities Co. V. U.S. (1904) 193 U.S. 197.
(21) Sturges v. Crowninshield (1819) 4 Wheat. U.S. 122; M'Millan v. M'Neill (1819) 4Wheat. U.S. 131; Ogden v. Saunders (1827) 12 Wheat. U.S. 213; Boylev. Zacharie (1832) 6 Pet. U.S. 348; Gassies v. Ballon (1832) 6 Pet. U.S. 761; Beers v. Haughton (1835) 9Pet. U.S. 329; Suydam v. Broadmax (1840) 14 Pet. U.S. 67; Cook v. Moffat (1847) 5 How. U.S. 295; Dred Scott v. Sandford (1856) 19 How. U.S. 393; Nishimura Ekiu v. U.S. (1892) 142 U.S. 651; Hanover Nat. Bank v. Moyses(1902) 186 U.S. 181.
The power of Congress to pass bankrupt laws is not exclusive, but that power may be exercised by the States except when it is actually exercised by Congress and the State laws conflict with the Federal law. It is not the mere existence of the power to enact such laws, but its exercise by Congress, which is incompatible with the exercise of the same power by the State. Otherwise with the power to pass uniform Federal laws of naturalization. "The citizens of any one state being entitled by the Constitution to enjoy the rights of citizenship in every other state, that fact creates an interest in this particular in each other's acts, which does not exist with regard to their bankrupt laws; since State acts of naturalization would thus be extra-territorial in their operation, and have an influence on the most vital interest of other States. On these grounds, State laws of naturalization may be brought under one of the four heads or classes of powers precluded to the States, to wit, that of incompatibility." Ogden v. Saunders (1827) 12 Wheat U.S. 277. See also Peirce v. New Hampshire (1847) 5 How. U.S. 585; Dred Scott v. Sandford (18560 19 How. U.S. 405; Gilman v. Lockwood (1866) 4 Wall. U.S. 410; Brown v. Smart (1892) 145 U.S. 457.
(22) Briscoe v. Kentucky Com. Bank (1837)11 Pet. U.S. 267; Fox v. Ohio (1847)5 How. U.S. 410; U.S. v. Marigold (1850) 9 How. U.S. 560; Legal Tender Cases (1870) 12 Wall. U.S. 545; The Miantinomi (1855) 3 Wall. Jr. (C.C.) 46,17 Fed. Cases No. 9,521.
"The Constitution was intended to frame a government as distinguished from a league or compact, a government supreme in some particulars over States and people. It was designed to provide the same currency, having a uniform legal value in all the States. It was for this reason the power to coin money and regulate its value was conferred upon the Federal Government, while the same power as well as the power to emit bills of credit was withdrawn from the States. The States can no longer declare what shall be money, or regulate its value. Whatever power there is over the currency is vested in Congress." Legal Tender Cases (1870) 12 Wall. U.S. 545.
(23) Pennsylvania v. Wheeling, etc., Bridge Co., (1855) 18 How. U.S. 421; Pensacola Tel. Co. v. Western Union Tel. Co., (1877) 94 U.S. 1; Ex p. Jackson (1877) 96 U.S. 727; In re Rapier, (1892) 143 U.S. 110; Horner v. U.S. (1892) 143 U. S. 207; In re Debs (1895) 158 U. S. 564; Illinois Cent. R. R. Co. v. Illinois (1896) 163 U. S. 142; Gladson v. Minnesota, (1897) 166 U. S. 427.
"Post-offices and post-roads are established to facilitate the transmission of intelligence. Both commerce and the postal service are place with in the power of Congress, because, being national in their operation, they should be under the protecting care of the national government...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 regulation." Pensacoal Tel. Co. v. Western Union Tel. Co. (1877) 96 U.S. 1.
"The States before the Union was formed could establish post offices and post-roads, and in doing so could bring into play the police power in the protection of their citizens from the use of the means so provided for purposes supposed to exert a demoralizing influence on the people. When the power to establish post offices and post-roads was surrendered to the Congress it was as a complete power, and the grant carried with it the right to exercise all the powers which made that power effective." In re Rapier (1892) 143 U.S. 134.
(24) Grant v. Raymond, (1832) 6 Pet. U.S. 218; Wheaton v. Peters (1834) 8 Pet. U.S. 501; Trade-Mark Cases (1879) 100 U.S. 82; Burrow-Giles Lith.Co. v. Sarony (1884) 111 U.S. 53; U.S. v. Duell (1899) 172 U.S. 576;
"No State can limit, control, or even exercise the power. Woolen v. Banker (1877) 2 Flipp. U.S. 33,30 Fed. Cases No. 18,030.
(25) Chisholm v. Georgia (1793) 2 Dall. U.S. 419; Stuart v. Laird (1803) 1Cranch. U.S. 299; U.S. v. Peters (1809) 5 Cranch U.S. 115; Cohen v. Virginia (1821) 6 Wheat. U.S. 264; Martin v. Hunter (1816) 1 Wheat. U.S. 304; Osborn v. U.S. Bank (1824) 9 Wheat. U.S. 738; Benner v. Porter (1850) 9 How. U.S. 235; U.S. v. Ritchie (1854) 17 How. U.S. 525; Murray v. HobokenLand, etc., Co. (1855) 18 How. U.S. 272; Ex p. Vallandigham (1863) 1 Wall. U.S. 243; Pennoyer v. Neff (1877) 95 U.S. 714; U.S. v. Union Pac. R. Co. (1878) 98 U.S. 560; Mitchell v. Clark (1884) 110 U.S. 633; Ames v. Kansas (1884) 111 U.S. 449; In re Loney (1890) 134 U.S. 373; In re Green (1890) 134 U.S. 377; McAllister v. U.S. (1891) 141 U.S. 174; Robertson v. Baldwin (1897) 165 U.S. 275; Hanover Nat.Bank v. Moyses (1902) 186 U.S. 181.
It is manifest that the Constitution requires a supreme court to be established. But Congress is also bound "to create some inferior courts, in which to vest all that jurisdiction which, under the Constitution, is exclusively vested in the United States, and of which the Supreme Court cannot take original cognizance. They might establish one ore more inferior courts; they might parcel out the jurisdiction among such courts, from time to time, at their own pleasure. But the whole judicial power of the United States should be, at all time, vested either in an original or appellate form, in some courts created under its authority." Per Story, J., in Martin v. Hunter (1816) 1 Wheat. U.S. 331.
(26) U.S. v. Palmer (1818) 3 Wheat U.S. 610; U.S. v. Wiltberger(1820) 5 Wheat U.S. 76; U.S. v. Smith (1820) 5Wheat U.S. 153; U.S. v. Furlong (1820) 5 Wheat. U.S. 184; U.S. v. Arjona (1887) 120 U.S. 479.
The power of the United States to punish an act constituting an offense against the law of nations does not prevent a State from providing for the punishment of the same thing, where the act is an offense against the authority of the State as well as that of the United States. U.S. v. Arjona (1887) 120 U.S. 479.
(27)Brown v. U.S. (1814) 8 Cranch U.S. 110; American Ins. Co. v. 356 Bales Cotton (1828) 1 Pet. U.S. 511; Mrs. Alexander's Cotton (1864) 2 Wall U.S. 404; Miller v. U.S. (1870) 11 Wall. U.S. 268; Tyler v. Defrees (1870) 11 Wall. U.S. 331; Stewart v. Kahn (1870) 11 Wall U.S. 493; Hamilton v. Dillin (1874) 21 Wall U.S. 73; Lamar v. Browne (1875) 92 U.S. 187; Mayfield v. Richards (1885) 115 U.S. 137; Chinese Exclusion Case (1889) 130 U.S. 581; Church of Jesus Christ v. U.S. (1890) 136 U.S. 1; Nishimura Ekiu v. U.S. 142 U.S. 651.
"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 the State, the government itself may be overthrown by an obstruction to its exercise." Crandall v. Nevada (1807) 6 Wall. U.S. 44.
(28) Crandall v. Nevada (1867) 6 Wall. U.S. 35; Nishimura Ekiu v. U.S. (1892) 142 U.S. 651.
"The legislation of the United States will be obliged, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on this point; and to declare their sense of the matter by a formal vote in the face of their constituents. They are not at liberty to vest in the executive department permanent funds for the support of an army, if they were even uncautious enough to be willing to repose in it so improper a confidence. "Hamilton, in The Federalist, No. XXVI.
"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 exclusive....No interference with 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 of, if it did not utterly destroy, this branch of the public service." Tarble's Case (1871) 13 Wall. U.S. 408.
(29) U.S. v. Bevans (1818) 3 Wheat. U.S. 336; Dynes v. Hoover (1857) 20 How. U.S. 85.
"The authority to build and equip vessels of war is, doubtless, implied in the power to declare war, but the same authority is more directly conferred by the power to `provide and maintain a navy.'" U.S. v. Burlington, etc., Ferry Co. (1884) 1 Abb.U.S. 28, 27 Fed. Cases No. 16,151.
(30) Houston v. Moore (1820) 5 Wheat. U.S. 1; Martin v. Mott (1827) 12 Wheat. U.S. 19; Luther v. Borden (1849) 7 How. U.S. 1; Crandall v. Nevada (1867)6Wall U.S. 35; Texas v. White (1868)7 Wall U.S. 700; Presser v. Illinois (1886) 116 U.S. 252.
"So long as the militia are acting under the military jurisdiction of the State to which they belong, the powers of legislation over them are concurrent in the general and State government. Congress has power to provide for organizing, arming, and disciplining them; and this power being unlimited, except in the two particulars of officering and training them, according to the discipline to be prescribed by Congress, it may be exercised to any extent that may be deemed necessary by Congress. But as State militia, the power of the State governments to legislate on the same subjects, having existed prior to the formation of the Constitution, and not having been prohibited by that instrument, it remains with the States, subordinate nevertheless to the paramount law of the general government, operating upon the same subject." Houston v. Moore (1820) 5 Wheat. U.S. 16.
(31) Hepburn v. Ellzey (1804) 2 Cranch U.S. 445; Loughborough v. Blake (1820) 5 Wheat. U.S. 317; Cohen v. Virginia (1821) 6 Wheat. U.S. 264; American Ins. Co. v. 356 Bales of Cotton(1828) 1 Pet. U.S. 511; Kendall v. U.S. (1838) 12 Pet. U.S. 524; U.S. v. Dewitt (1869) 9 Wall. U.S. 41; Dunphy v. Kleinsmith (1870) 11 Wall. U.S. 610; Willard v. Presbury (1871) 14 Wall U.S. 676; Kohl v. U.S. (1875) 91 U.S. 367; Phillips v. Payne (1875) 92 U.S. 130; U.S. v. Fox (1876) 94 U.S. 315; Ft. Leavenworth R. Co. v. Lowe (1885) 114 U.S. 525; Gibbons v. District of Columbia (1886) 116 U.S. 404; Van Brocklin v. Tennessee (1886) 117 U.S. 151; Stoutenburgh v. Hennick (1889) 129U.S. 141; Geofroy v. Riggs(1890) 133 U.S. 258; Benson v. U.S. (1892) 146 U.S. 325; Shoemaker v. U.S. (1893) 147 U.S. 282; Chappell v. U.S. (1896) 160 U.S. 499; Ohio v. Thomas (1899) 173 U.S. 276; Wight v. Davidson (1901) 181 U.S. 371.
"When the title is acquired by purchase by consent of the legislatures of the States, the Federal jurisdiction is exclusive of all State authority. This follows from the declaration of the Constitution that Congress shall have `like authority' over such places as it has over the district which is the seat of government; that is, the power of `exclusive legislation in all cases whatsoever.' Broader or clearer language could not be used to exclude all other authority than that of Congress." Ft. Leavenworth R. Co. v. Lowe (1885) 114 U.S. 532.
(32) U.S. v. Hamilton, (1795) 3 Dall. U.S. 17; Hepburn v. Eltzey, (1804) 2 Cranch U.S. 446; Ex p. Bollman, (1807) 4 Cranch U.S. 76; Ex p. Kearney, (1822) 7 Wheat. U.S. 38; Ex p. Watkins, (1830) 3 Pet. U.S. 193; Ex p. Milburn, (1636) 9 Pet. U.S. 704; Holmes v. Jennison, (1840) 14 Pet. U.S. 640; Ex p. Dorr (1845) 3 How. U.S. 103; Luther v. Borden, (1849) 7 How. U.S. 1; Ableman v. Booth, (1858) 21 How. U.S. 506; Ex p. Vallandigham, (1863) 1 Wall. U.S. 243; Ex p. Milligan, (1868) 4 Wall. U.S. 2; Ex p. McCardle, (1868) 7 Wall. U.S. 508; Ex p. Yerger, (1868) 8 Wall. U.S. 85; Tarble's Case, (1871) 13 Wall. U.S. 307; Ex p. Lange, (1873) 18 Wall. U.S. 163; Ex p. Parks, (1876) 93 U.S. 18; Ex p. Karstendick, (1876) 93 U. S. 396; Ex p. Virginia, (1879) 100 U.S. 339; In re Neagle (1890) 135 U. S. 1; in re Frederich (1893) 149 U.S. 70.
"The Constitution also declares that the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. No express power is given to Congream to secure this invaluable right in the non-enumerated cases, or to suspend the writ in cases of rebellion or invasion. And yet it would be difficult to say, since this great writ of liberty is usually provided for by the ordinary functions of legislation, and can be effectually provided for only in this way, that it ought not to be deemed by necessary implication within the scope of the legislative power of Congress." Prigg v. Pennsylvania (1842) 16Pet. U.S. 619.
(33) Fletcher v. Peck (1810) 6 Cranch U.S. 87; Ogden v. Saunders (1827) 12 Wheat.U.S. 213; Watson v. Mercer (1834) 9 Pet. U.S. 88; Carpenter v. Pennsylvania (1854) 17 How. U.S. 456; Locke v. New Orleans (1866) 4 Wall U.S. 172; Cummings v. Missouri (1866) 4 Wall. U.S. 277; Ex p. Garland (1866) 4 Wall. (C.S.) 333; Drehman v. Tittle (1869) 8 Wall. U.S. 595; Klinger v. Missouri (1871) 13 Wall. U.S. 257; Pierce v. Carskadon (1872) 16 Wall.U.S. 234; Hopt v. Utah (1884) 110 U.S. 574; Cook v. U.S. (1891) 138 U.S. 157; Neely v. Henkel (1901) 180 U.S. 109; Southwestern coal Co. v. McBride (1902) 185 U.S. 499.
(34) License Tax Cases (1866) 5 Wall. U.S. 462; Springer v. U.S. (1881) 102 U.S. 586; Nicol v. Ames (1899) 173 U.S. 509.
"If Congress sees fit to impose a capitation, or other direct tax, it must be laid in proportion to the census; if Congress determines to impose duties, imposts, and excises, they must be uniform throughout the United States. These are not strictly limitations of power. They are rules prescribing the mode in which it shall be exercised." Veazie Bank v. Fenno (1869) 8 Wall. U.S. 541.
(35) Cooley v. Board of Wardens (1851) 12 How. U.S. 299; Pace v. Burgess (1875) 92 U.S. 372; Turpin v. Burgess (1886) 117 U.S. 504; Pittsburg, Etc., Coal Co. v. Bates (1895) 156 U.S. 577; Nicol v. Ames (1899) 173 U.S. 509; Williams v. Fears (1900) 179 U.S. 270; De Lima v. Bidwell (1901) 182 U.S. 151; Fourteen Diamond Rings v. U.S. (1901) 183 U.S. 176; Cornell v. Coyne (1904) 192 U.S. 418.
"The purpose of the restriction is that exportation, all exportation, shall be free from national burden." Fairbank v. U.S. (1901) 181 U.S. 292.
(36) Cooley v. Board of Wardens (1851) 12 How. U.S. 299; Pennsylvania v. Wheeling, Etc., Bridge Co. (1855) 18 How. U.S. 421; Munn v. Illinois (1876) 94 U.S. 113; Northwestern Union Packet Co. v. St. Louis (1879) 100 U.S. 423; Cincinnati, etc., Packet Co. v. Catlettsburg (1881) 105 U.S. 559; Spraigue v. Thompson (1886) 118 U.S. 90; Morgan's Steamship co. v. Louisiana Board of Health (1886) 118 U.S. 455; Johnson v. Chicago, etc., Elevator Co. (1886) 119 U.S. 388.
This clause "is a limitation upon the power of Congress to regulate commerce, for the purpose of producing entire commercial equality within the United States, and also a prohibition upon the State to destroy such equality by any legislation prescribing a condition upon which vessels bound from one State shall enter the ports of another State." Per Mr. Justice Wayne, in Norris v. Boston (1849) 7 How. U.S. 414. See also Pennsylvania v. Wheeling, etc., Bridge Co. (1855) 18 How. U.S. 433; Williams v. The Lizzie Henderson (1880) 20 Fed. Cases No. 17,726a.
"This provision operates only as a limitation of the powers of Congress, and in no respect affects the States in the regulation of their domestic affairs." Munn v. Illinois (1876) 94 U.S. 135.
(37) "A State is forbidden to enter into any treaty, alliance, or confederation. If these compacts are with foreign nations, they interfere with the treaty-making power which is conferred entirely on the general government; if with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the Constitution. To grant letters of marque and reprisal, would lead directly to war; the power of declaring which is expressly given to Congress." Per Mr. Chief Justice Marshall, in Barron v. Baltimore (1833) 7 Pet. U.S. 249.
(38) Decisions relating to making anything but gold and silver coin a tender in payment of debts. Craig v. Missourt (1830) 4 Pet. U.S. 410;Byrne v. Missouri (1834) 8 Pet. U.S. 40; Briscoe v. Kentucky Com. Bank (1837) 11 Pet. U.S. 257; Darrington v. Branch Bank (1851) 13 How. U.S. 12.
Decisions relating to ex post facto law. Calder v. Bull (1798) 3 Dall. U.S. 386; Watson v. Mercer (1834) 8 Pet. U.S. 88; Carpenter v. Pennsylvania, (1854) 17 How. U.S. 466; Locke v. New Orleans, (1866) 4 Wall. U.S. 172; Ex p. Garland (1866) 4 Wall U.S. 333; Gut v. Minnesota, (1869) 9 Wall. U.S. 35; Kring v. Missouri, (1882) 107 U.S. 221; Jaehne v. New York (1888) 128 U.S. 189; Medley, Petitioner, (1890) 134 U.S. 160; Holden v. Minnesota (1890) 137 U.S. 483; Hawker v. New York (1898) 170 U.S. 189; Thompson v. Missouri, (1898) 171 U.S. 380; McDonald v. Massachusetts, (1901) 180 U.S. 311; Mallett v. North Carolina (1901) 181 U.S. 589; Reetz v. Michigan, (1903) 188 U. S. 505.
Decisions relating to laws impairing the obligation of contracts. Fletcher v. Peck, (1810) 6 Cranch U.S. 87; New Jersey v. Wilson, (1812) 7 Cranch U.S. 164; Sturges v. Crowninshield. (1819) 4 Wheat. U.S. 122; M'Millan v. M'Neill, (1819) 4 Wheat. U.S. 209; Dartmouth College v. Woodward, (1819) 4 Wheat. U.S. 518; Owings v. Speed, (1820) 5 Wheat. U.S. 420; Farment etc., Bank v. Smith, (1821) 6 Wheat. U.S. 131; Green v. Biddle. (1823) 8 Wheat. U.S. 1, Ogden v. Saunders (1827) 12 Wheat. U.S. 213; Mason v. Raile, (1827) 12 Wheat. U.S. 370; Sauterlee v. Matthewson. (1829) 2 Pet. U.S. 380; Jackson v. Lamphire (1830) 3 Pet. U.S. 280; Providence Bank v. Billings (183O) 4 Pet. U.S. 514; Mumma v. Potomac Co., (1834) 8 Pet. U.S. 281; Beers v. Houghton. (1835) 9 Pet. U.S. 329; Charles River Bridge v. Warren Bridge, (1837) 11 Pet. U.S. 420; Armstrong V. Treasurer, (1842) 16 Pet. U.S. 281; Bronson v. Kinzie. (1843) 1 How. U.S. 311; McCracken v. Hayward (1844) 2 How. U.S. 608; Gordon v. Appeal Tax Ct., (1845) 3 How. U.S. 133; Maryland v. Baltimore, etc., R. Co., (1845) 3 How. U.S. 534; Neil v. Ohio, (1845) 3 How. U.S. 720; Cook v. Moffat, (1847) 5 How. U.S. 295; Planters' Bank v. Sharp (1848) 6 How. U.S. 301; West River Bridge Co. v. Dix (1848) 6 How. U.S. 507; Crawford v. Branch Bank, (1849) 7 How. U.S. 279; Woodruff v. Trapnall, (1850) 10 How. U.S. 190; Paup v. Drew (1850) 10 How. U.S. 218; Baltimore. etc., R. Co. V. Nesbit, (1650) 10 How. U.S. 395; Butler v. Pennsylvania, (1850) 10 How. U.S. 402;
Richmond, etc., R. Co. v. Louisa R. Co., (1851) 13 How. U.S. 71; Vincennes University v. Indiana, (1852) 14 How. U.S. 268; Curran v. Arkanue. (1853) 15 How. U.S. 304; Piqua Branch of State Bank v. Knoop, (1853) 16 How. U.S. 369; Dodge v. Woolsey, (1855) 18 How. U.S. 331; Beers v. Arkansas, (1857) 20 How. U.S. 527; Aspinwall v. Daviess County, (1859) 22 How. U.S. 364; Christ Church v. Philadelphia County, (1860) 24 How. U.S. 300; Howard v. Bugbee (1860) 24 How. U.S. 461; Jefferson Branch Bank v. Skelly, (1861) 1 Black U.S. 436; Franklin Branch Bank v. Ohio. (1861) 1 Black U.S. 474; Wabash, etc., Canal Co. v. Beers, (1862) 2 Black U.S. 448; Gilman v. Sheboygan, (1862) 2 Black U.S. 510; Passaic River, etc.. Bridge v. Hoboken Land etc. Co., (1863) 1 Wall. U.S. 116; Hawthorne v. Calef, (1864) 2 Wall. U.S. 10; Binghampton Bridge, (1865) 3 Wall. U.S. 51; Washington, etc., Turnpike Co. v. Maryland, (1865) 3 Wall. U.S. 210; Missouri, etc., R. Co. v. Rock, (1866) 4 Wall. U.S. 177; Cummings v. Missouri, (1866) 4 Wall. U.S. 177; Von Hoffman v. Quincy, (1866) 4 Wall. U.S. 536; Mulligan v. Corbins, (1868) 7 Wall. U.S. 487; Furman v. Nichol, (1868) 8 Wall. U.S. 44; Home of Friendless v. Rouse, (1869) 8 Wall. U.S. 430; Washingion University v. Rouse. (1869) 8 Wall. U.S. 439; Butz v. Muscatine (1869) 6 Wall. U.S. 675; Drehman v. Stille, (1869) 8 Wall. U.S. 605; Hepburn v. Griswold, (1869) 8 Wall. U.S. 603; Ohio, etc., R. Co. v. McClure, (1870) 10 Wall. U.S. 511; Legal Tender Cases, (1870) 12 Wall. U.S. 457;
Curtis v. Whitney, (1871) 13 Wall. U.S. 68; Pennsylvania College Cases (1871) 13 Wall. U.S. 190; Wilmington etc., R. Co. v. Reid (1871) 13 Wall. U.S. 264, East Saginaw Salt Mfg. Co. v. East Saginaw, (1871) 13 Wall. U.S. 373; Whits v. Hart, (1871) 13 Wall. U.S. 646; Osborn v. Nicholson, (1871) 13 Wall. U.S. 854; Norwich, etc., R. Co. v. Johnson. (1872) 15 Wall. U.S. 195; State Tax on Foreign-held Bunds; (1872) 16 Wall. U.S. 300; Tomlinson v. Jessup, (1872) 15 Wall. U.S. 464; Tomlinson v. Branch. (1872) 15 Wall. U.S. 460; Miller v. New York (1872) 15 Wall. U.S. 478; Holyoke Water-Power Co. v. Lyman (1872) 16 Wall. U.S. 500; Gunn v. Barry (1872) 16 Wall. U.S. 610; Humphrey v. Pegues (1872) 16 Wall. U.S. 244; Walker v. Whitehead, (1872) 16 Wall. U.S. 314; Sohn v. Waterson (1873) 17 Wall. U.S. 596; Barings v. Dabney. (1873) 19 Wall. U.S. 1; Head v. Missouri University (1873) 19 Wall. U.S. 526; Pacific R. Co. v. Maguire (1873) 20 Wall. U.S. 36; Garrison v. New York, (1874) 21 Wall. U.S. 196; Ochiltree v. Iowa R. Contracting Co., (1874) 21 Wall. (U. S.) 249; Wilmington, etc., R. Co. v. King. (1875) 91 U.S. 3; Moultire County v. Rockingham Ten-Cent Sav.-Bank (1875) 92 U.S. 631; Home Ins. Co. v. Augusta (1876) 93 U.S. 118; West Wisconsin R. Co. v. Trempealeau County, (1876) 93 U.S. 596; New Jersey v. Yard (1877) 95 U.S. 104; Cairo, etc., R. Co. v. Hecht (1877) 95 U.S. 168; Terry v. Anderson (1877) 95 U.S. 628; Farrington v. Tennessee (1877) 95 U.S. 679; Blount v. Windley, (1877) 95 U.S. 173;
Murray v. Charleston, (1877) 96 U.S. 432; Edwards v. Kearzey. (1877) 96 U.S. 595; Tennessee v. Sneed (1877) 96 U.S. 69; Williams v. Bruffy (1877) 96 U.S. 176; Richmond, etc., R Co. v. Richmond (1877) 96 U.S. 521; Boston Beer Co. v. Massachusetts (1877) 97 U.S. 25; Northwestern Fertilizer Co. v. Hyde Park (1878) 97 U.S. 659; Memphis, etc., R. Co. v. Gaines. (1878) 97 U.S. 697; U.S. v. Memphis (1877) 97 U.S. 284; Keith v. Clark (1878) 107 U.S. 454; Atlantic, etc., R. Co. v. Georgia, (1878) 98 U.S. 359; Northwestern University v. People, (1878) 99 U.S. 309; Newton v. Mahoning County, (1879) 100 U.S. 548; Memphis, etc., R. Co. v. Tennessee (1879) 101 U.S. 337; Wright v. Nagle, (1879) 101 U.S. 791; Stone v. Mississippi (1879) 101 U.S.814; South, etc., Alabama R. Co. v. Alabama, (1879) 101 U.S. 832; Louisiana v. New Orleans (1880) 102 U.S. 203; Hall v. Wisconsin (1880) 103 U.S. 5; Penniman's Case. (1880) 103 U.S. 714; Wolff v. New Orleans (1860) 103 U.S. 358; Koshkonong v. Burton, (1882) 104 U.S. 668; New Haven, etc., R. Co. v. Hamersley (1881) 104 U.S. 1; Clay County v. Savings Soc. (1882) 104 U.S. 579; New York Guaranty, etc., Co. v. Board of Liquidation, (1881) 105 U.S. 622; Greenwood v. Union Freight R. Co. (1881) 103 U.S. 13; St. Anna's Asylum v. New Orleans, (1881) 105 U.S. 362; Louisiana v. Pilsbury (1881) 105 U.S. 278; New Orleans v. Morris (1881) 105 U.S. 278; Close v. Glenwood Cemetery, (1882) 107 U.S. 466; Antoni v. Greenhow, (1882) 107 U.S. 769; Vance v. Vance, (1883) 108 U.S. 514;
Memphis Gas Light Co. v. Shelby County Taxing Dist., (Itib3) 109 U.S. 398; Canada Southern R. Co. v. Gebhard (1883) 109 U.S. 527; Louisiana v. New Orleans, (1883) 109 U.S. 285; Gilfillan v. Union Canal Co., (1883) 109 U.S. 401; Spring Valley Water Works v. Schottler, (1884) 110 U.S. 347; Butchers' Uulon Slaughter-House, etc., Co. v. Crescent City Live Stock Landing, etc, Co., (1884) 111 U.S. 746; Nelson v. Police Jury. (1884) 111 U.S. 716; Marye v. Parsons, (1884) 114 U.S. 325; Poindexter v. Greenhow, (1884) 114 U.S. 270; Amy v. Shelby County Taxing Dist., (1885) 114 U.S. 387; Allen v. Baltimore, etc., R. Co., (1884) 114 U.S. 311; Effinger v. Kenney, (1885) 115 U.S. 566; New Orleans Gas Co. v. Lousiana Light Co., (1885) 115 U.S. 650; Louisville Gas Co. v. Citizens Gas Co., (1885) 115 U.S. 693. New Orleans Water-Works Co. v. Rivers, (1885) 115 U.S. 674; Fisk v. Jefferson Police Jury, (1885) 166 U.S. 131; Mobile v. Watson (1886) 116 U.S. 289; New Orleans v. Houston, (1896) 119 U.S. 265, St. Tammany Water-Works v. New Orleans Water-Works, (1887) 120 U.S. 64; Church v. Kelsey (1887) 121 U.S. 282; Lehigh Water Co. v. Easton, (1897) 121 U.S. 388; Seibert v. Lewis, (1887) 122 U.S. 284; New Orleans Water-Works Co. v. Louisiana Sugar Refining Co. (1888) 125 U.S. 18; Maynard v. Hill, (1888) 125 U.S. 190; Denny v. Bennett (1888) 128 U.S. 489; Williamson v. New Jersey (1889) 130 U.S. 189; Freeland v. Williams, (1889) 131 U.S. 405; Campbell v. Wade. (1889) 132 U.S. 34; Pennsylvania R. Co. v. Miller, (1889) 132 U.S. 75;
Pennie v. Reis, (1889) 132 U.S. 464; Hans v. Louisiana, (1890) 134 U.S. 1; Crenshaw v. U.S., (1890) 134 U.S. 99; Chicago, etc., R. Co. v. Minnesota, (1890) 134 U.S. 418; Minneapolis Eastern R. Co. v. Minnesota, (1890) 134 U.S. 467; Hill v. Merchants' Mut. Ins. Co., (1890) 134 U.S. 515; McGahey v. Virginia. (1890) 135 U.S. 662; U.S. v. North Carolina (189O) 136 U.S. 211; Wheeler v. Jackson, (1890) 137 U.S. 245; Sioux City St. R. Co. v. Sioux City, (1891) 138 U.S. 98; Wheeling, etc., Bridge Co. v. Wheeling bridge Co., (1891) 138 U.S. 287; Pennoyer v. McConnaughy (1891) 140 U.S. 1; Scotland County Ct. v. U. S., (Idol) 140 U.S. 41; Essex Public Road Board v. Skinkle, (1891) 140 U.S. 334; Stein v. Bienville Water Supply Co., (1891) 141 U.S. 67; New Orleans v. New Orleans Water Works Co., (1891) 142 U.S. 79; New Orleans City, etc., R. Co. v. New Orleans (1892) 143 U.S. 199; Louisville Water Co. v. Clark (1892) 143 U.S. 1; New York v. Squire, (1892) 145 U.S. 175; Baker v. Kilgore, (1892) 145 U.S. 487; Morley v. Lake Shore R. Co. (1892) 146 U.S. 102; Hamilton Gas Light, etc. Co. v. Hamilton, (1892) 146 U.S. 258; Wilmington, etc.. R. Co. v. Alsbrook, (18021 146 U.S. 279; Illinois Central R. Co. v. Illinois (1892) 146 U.S. 387; Bier v. McGehee, (1893) 148 U.S. 137; People v. Cook, (1893) 148 U.S. 397; New York, etc., R. Co. v. Bristol, (1894) 151 U.S. 656; Bryan v. Board of Education (1894) 151 U.S. 639; Duncan v. Missouri (1894) 152, U.S. 377; New Orleans v. Benjamin, (1894) 153 U.S. 411;
Eagle Ins. Co. v. Ohio, (1804) 163 U.S. 440; New York, etc., R. Co. v. Pennsylvania (1894) 153 U.S. 828; Mobile, etc., R. Co. v. Tennessee, (1894) 153 U.S. 486; U.S. v. Thoman, (1895) 156 U.S. 353; St. Louis, etc., R. Co. v. Gill, (1895) 156 U.S. 649; New Orleans City, etc., R. Co. v. Louisiana (1895) 157 U.S. 210; Bank of Commerce v. Tennessee (1895) 161 U.S. 134; Baltzer v. North Carolina (1896) 161 U.S. 240; Pearsall v. Great Northern R. Co., (1896) 161 U.S. 646; Louisville, etc., R. Co. v. Kentucky, (1896) 101 U.S. 677; Woodruff v. Mississippi, (1896) 162 U.S. 201; Gibson v. Mississippi (1896) 162 U.S. 605; Barnitz v. Beverly, (1896) 163 U.S. 119; Hanford v. Davies, (1896) 163 U.S. 273; Covington, etc., Turnpike Road Co. v. Sandford, (1896) 164 U.S. 578; St. Louis, etc., R. Co. v. Mathews, (1897) 165 U.S. 1; Grand Lodge, etc. v. New Orleans (1897) 166 U.S. 143; Baltimore v. Baltimore Trust, etc., Co., (1897) 168 U.S. 673; City R. Co. v. Citizens St. R. Co., (1897) 166 U.S. 657; Wabash R. Co. v. Defiance, (1897) 167 U.S. 88; Shapleigh v. San Angelo, (1897) 167 U.S. 646; St. Anthony Falls Water Power Co. v. St. Paul Water Com'rs (1897) 168 U.S. 340; Douglas v. Kentucky, (1897) 168 U.S. 488; Galveston, etc., R. Co. v. Texas (1898) 170 U.S. 226; Houston, etc., R. Co. v. Texas (1898) 170 U.S. 243; Williams v. Eggleston (1898) 170 U.S. 304; Chicago, etc., R. Co. v. Nebraska, (1898) 170 U.S. 57; Missouri v. Murphy (1898) 170 U.S. 78; Louisville Water Co. v. Kentucky, (1898) 170 U.S. 127; Walla Walla v. Walla Walla Water Co, (1898) 172 U.S. 1; McCullough v. Virginia (1898) 172 U.S. 102; Connecticut Mut L. Co. v. Spratley, (1899) 172 U.S. 602; Citizens Sav. Bank v. Owensboro (1899) 173 U.S. 636; Lake Shore, etc., R. Co. v. Smith, (1899) 173 U.S. 684; Covington v. Kentucky, (1899) 173 U.S. 231; Henderson Bridge Co. v. Henderson (1899) 173 U.S. 592; Walsh v. Columbus, etc., R. Co., (1900) 176 U.S. 469; Adirondack R. Co. v. New York, (1900) 176 U.S. 335; New York L. Ins. Co. v. Cravens (1900) 178 U.S. 389; Looker v. Maynard, (1900) 179 U.S. 46; Stearns v. Minnesota. (1900) 179 U.S. 223; Illinois Cent. R. Co. v. Adams, (1901) 180 U.S. 28; St. Paul Gas Light Co. v. St. Paul, (1901) 181 U.S. 142; Red River Valley Nat. Bank v. Craig, (1901) 181 U.S. 548;
Bedford v. Eastern Bldg. etc., Assoc. (1901) 161 U.S. 227; Knoxville Iron Co. v. Harbison, (1901) 183 U.S. 13; Orr v. Gilman, (1902) 183 U.S. 278; Wilson v. Iseminger, (1902) 185 U.S. 55; Vicksburg Water-Works Co. v. Vicksburg, (1902) 185 U.S. 65; Hanover Nat. Bank v. Moyses (1902) 188 U.S. 181; Northern Cent. R. Co. v. Maryland, (1902) 187 U.S. 256; Oshkosh Waterworks Co. v. Oshkosh (1903) 187 U.S. 437; Diamond Glue Co. v. U.S. Glue Co. (1903) 187 U.S. 611; Weber v. Rogan, (1903) 188 U.S. 10; Blackstone v. Miller, (1903) 188 U.S. 189; Waggoner v. Flack, (1903) 188 U.S. 595; Owensboro v. Owensboro Waterworks Co., (1903) 191 U.S. 358; Wisconsin, etc., R. Co. v. Powers, (1903) 191 U.S. 319; Deposit Bank v. Frankfort, (1903) 191 U.S. 499; Citizens' Bank v. Parker, (1904) 192 U.S. 73; Stanislaus County v. San Joaquin, etc., Canal, etc., Co., (1904) 192 U.S. 201.
(39) McCulloch v. Maryland, (1819) 4 Wheat. U.S. 316; Gibbons v. Ogden (1824) 9 Wheat. U.S. 1; Brown v. Maryland, (1827) 12 Wheat. U.S. 419; Mager v. Grima (1850) 8 How. U. S. 490; Cooley v. Board of Wardens, (1851) 12 How. U.S. 209; Almy v. California. (1860) 24 How. U.S. 169; License Tax Cases (1866) 5 Wall. U.S. 462; Crandall v. Nevada. (1867) 6 Wall. U.S. 35; Waring v. Mobile, (1868) 8 Wall. U.S. 110, Woodruff v. Parham, (1868) 8 Wall. U.S. 123; Hinson v. Lott (1868) 8 Wall. U.S. 148; State Tonnage Tax Cases (1870) 12 Wall.U.S. 204; State Tax on Railway Gross Receipts (1872) 15 Wall. U.S. 284; Inman Steamship Co. v. Tinker (1876) 94 U.S. 238 Cook v. Pennsylvania (1878) 97 U.S. 566; Keokuk Northern Line Packet Co. v. Keokuk, (1877) 95 U.S. 80; People v. Compagnie Generale Transatlantique, (1882) 107 U.S. 69; Turner v. Maryland, (1882) 107 U.S. 38; Brown V. Houston, (1885) 114 U.S. 622; Coe. v. Errol (1886) 116 U.S. 517; Turpin v. Burgess, (1886) 117 U.S. 504; Pittsburg, etc., Coal Co. v. Bates (1895) 156 U.S. 677; Pittsburg, etc., Coal Co. v. Louisiana, (1895) 156 U.S. 500; Scott v. Donald, (1897) 165 U.S. 58; Patapsco Guano Co. v. North Carolina Board of Agriculture, (1898) 171 U.S. 345; May v. New Orleans (1900) 178 U.S. 406; Dooley v. U.S., (1901) 193 U.S. 161; Cornell v. Coyne, (1904) 192 U.S. 418; American Steel etc., Co. v. Speed, (1904) 192 U.S. 600.
"Prior to the adoption of the Constitution the States attempted to regulate commerce, and they also levied duties on imports and exports and duties of tonnage, and it was the embarrassments growing out of such regulations and conflicting obligations which mainly led to the abandonment of the confederation and to the more perfect union under the present Constitution." State Tonnage Tax Cases (1870) 12 Wall. U.S. 214. See also Brown v. Maryland (1827) 12 Wheat. U.S. 439.
(40) Green v. Biddle, (1823) 8 Wheat. U.S. 1; Poole v. Fleeger (1837) 11 Pet. U.S. 185; Cooley v. Board of Wardens (1851) 12 How. U.S. 299; Peete v. Morgan, (1873) 19 Wall. U.S. 591; Cannon v. New Orleans, (1874) 20 Wall. U.S. 577; lnman Steamship Co. v. Tinker, (1876) 94 U.S. 238; Wheeling. etc., Transp. Co. v. Wheeling. (1878) 99 U.S. 273; Northwestern Union Packet Co. v. St. Louis (1870) 100 U.S. 423; Keokuk Northern Line Packet Co. v. Keokuk, (1877) 95 U.S. 80; Vicksburg v. Tobin, (1870) 100 U.S. 410; Cincinnati, etc., Packet Co. v. Catlettsburg (1881) 105 U.S. 659; Wiggins Ferry Co. v. East St. Louis (1882) 107 U.S. 365; Parkersburg. etc., Transp. Co. v. Parkersburg. (1882) 107 U.S. 691; Presser V. Illinois, (1886) 110 U.S. 252; U.S. 465; Huse v.. Glover. (1886) 119 U.S. 543; Quachita Packet Co. v. Aiken. (1887) 121 U.S. 444; Indiana v. Kentucky. (1890) 130 U.S. 479; Virginia v. Tennessee (1893) 148 U. S. 503; Wharton v. Wise (1894) 153 U.S. 155; St. Louis etc., R. Co. v. James (1896) 161 U.S. 545.
"Looking at the clause [in the Federal Constitution] in which the terms `compact' or `agreement' appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States." Virginia v. Tennessee (1893) 148 U.S. 519.
(41) Field v. Clark (1892) 143 U.S. 649; Chisholm v. Georgia
(1793) 2 Dall. U.S. 419; Leitensdorfer v. Webb (1857) 20 How. U.S. 176; Ex p. Siebold, (1879) 100 U.S. 371; In re Green, (1890) 134 U.S. 377; McPherson v. Blacker, (1892) 146 U.S. 1.
"Congress is empowered to determine the time of choosing the electors and the day on which they are to give their votes, which is required to be the same day throughout the United States, but otherwise the power and jurisdiction of the State is exclusive, with the exception of the provisions as to the number of electors and the ineligibility of certain persons, so framed that congressional and federal influence might be excluded." McPherson v. Blacker,, (1892) 146 U.S. 35.
(42) Inglis v. Sailor's Snug Harbour, (1830) 3 Pet. U.S. 99.
(43) Hayburns Case (1792) 2 Dall. U.S. 410; Chisholm v. Georgia (1793) 12 Dall. U.S. 410; Glass v. The Sloop Betsey (1794) 3 Dall. U.S. 6; U.S. v. La Vengeance (1796) 3 Dall. U.S. 297; Hollingsworth v. Virginia. (1798) 3 Dall. U.S. 379; Moisman v. Higginson, (1800) 4 Dall. U.S. 12; Marbury v. Madison, (1803) 1 Cranch U.S. 137; Hepburn v. Ellzey, (1894) 2 Cranch U.S. 445; U.S. v. More, (1806) 3 Cranch U.S. 159; Strawbridge v. Curtis (1806) 3 Cranch U.S. 267; Ex p. Bollman (1807) 4 Cranch U.S. 75; Rose v. Himely, (1808) 4 Cranch U.S. 241; Chappedelaine w. Dechenaux, (1806) 4 Cranch U.S. 306; Hope Ins. Co. v. Boardman, (1800) 5 Cranch U.S. 57; U.S. Bank v. Deveaux, (1809) 5 Cranch U.S. 61; Hodgson v. Bowerbank, (1809) 5 Cranch U.S. 303; Owings v. Norwood, (1809) 5 Cranch U.S. 344; Dorousseau w. U.S.p (1810) 6 Cranch U.S. 307; U.S. v. Hudson, (1812) 7 Cranch U.S. 32; Martin v. Hunter, (1816) 1 Wheat. U.S. 304; Colson v. Lewis, (1817) 2 Wheat. U.S. 377; U.S. v. Bevans, (1818) 3 Wheat. U.S. 336; Cohen v. Virginia, (1821) 6 Wheat. U.S. 264; Ex p. v. Kearney, (1822) 7 Wheat. U.S. 38; Matthews v. Zane, (1822) 7 Wheat. U.S. 164, Osnorn v. U.S. Bank, (1824) 9 Wheat. U.S. 738; U.S. v. Ortega (1826) 11 Wheat. U.S. 467; American Ins. Co. v. 358 Bales Cotton, (1828) 1 Pet. U.S. 511; Jackson v. Twentyman, (1820) 2 Pet. U.S. 136; Cherokee Nation v. Georgia, (1831) 5 Pet. U.S. 1; New Jersey v. New York, (1831) 5 Pet. U.S. 284; Davis v. Packard, (1832) 6 Pet. U.S. 41, (1833) 7 Pet. U.S. 270;
U.S. v. Arredondo, (1832) 6 Pet. (U.iS.) 601; Breedlove v. Nicolet, (1833) 7 Pet. U.S. 413; Brown v. Keene. (1834) 8 Pet. U.S. 112; Davis v. Packard (1834) 8 Pet. U.S. 312; New Orleans v. De Armas (1835) 9. Pet. U.S. 224; Rhode Island v. Massachusetts (1838) 12 Pet. U.S. 657; Augusta Bank v. Earle, (1830) 13 Pet. U.S. 510; Commercial, etc., Bank v. Slocomb, (1840) 14 Pet. U.S. 60; Suydam v. Broadnax (1840) 14 Pet. U.S. 07; Prigg v. Pennsylvania, (1842) 16 Pet. U.S. 539; Louisville, etc., R. Co. v. Letson, (1844) 2 How. U.S. 497; Cary v. Curtis, (1845) 3 How. U.S. 236; Waring v. Clarke, (1847) 5 How. U.S. 441; Luther v. Borden, (1849) 7 How. U.S. 1; Sheldon v. Sill, (1850) 8 How. U.S. 441; The Propeller Genesee Chief v. Fitzhugh (1851) 12 How. U.S. 443; Fretz v. Bull, (1851) 12 How. U.S. 466; Neves v. Scott, (1851) 13 How. U.S. 208; Pennsylvania v. Wheeling, etc., Bridge Co., (1851) 13 How. U.S. 518; Marshall v. Baltimore etc., R. Co., (1853) 16 How. U.S. 314; U.S. v. Guthrie, (1854) 17 How. U.S. 284; Smith v. Maryland, (1856) 18 How. U.S. 71; Jones v. League, (1853) 18 How. U.S. 76; Murray v. Hoboken Land etc, Co., (1855) 18 How. U.S. 272; Hyde v. Stone, (1857) 20 How. U.S. 170; Irving v. Marshall. (1857) 20 How. U.S. 558; Fenn v. Holms, (1858) 21 How. U.S. 481; Morewood v. Enequist (1859) 23 How. U.S. 491; Kentucky v. Dennison (1860) 24 How. U.S. 66; Ohio etc., R. Co. v. Wheeler (1861) 1 Black U.S. 286; The Steamer St. Lawrence (1861) 1 Black U.S. 522;
The Propeller Commerce, (1861) 1 Black U.S. 574; Ex p. Vallandigham, (1883) 1 Wall. U.S. 243; Ex p. Milligan, (1868) 4 Wall. U.S. 2; The Moses Taylor (1866) 4 Wall. U.S. 411; Mississippi v. Johnson (1866) 4 Wall. U.S. 475; The Hine v. Trevor, (1868) 4 Wall. U.S. 553,- Philadelphia v. Collector (1866) 5 Wall. U.S. 720; Georgia v. Stanton, (1867) 6 Wall. U.S. 50; Payne v. Hook, (1868) 7 Wall. U.S. 425; The Alicia, (1868) 7 Wall. U.S. 571; Ex p. Yerger, (1868) 8 Wall. U.S. 85; New England Mut. Marine Ins. Co. v. Dunham, (1870) 11 Wall. U.S. 1; Virginia v. West Virginia (1870) 11 Wall. U.S. 39; Susquehanna, etc., Valley R., etc., Co. v. Blatchford, (1870) 11 Wall. U.S. 172; Chicago, etc., R. Co. v. Whitton, (1871) 13 Wall. U.S. 270; Tarble's Case, (187l) 13 Wall. U.S. 397; Blyew v. U.S., (187l) 13 Wall. U.S. 581; Davis v. Gray, (1872) 16 Wall. U.S. 203; Sewing Mach. Co.'s Case, (1873) 18 Wall. U.S. 553; Home Ins. Co. v. Morse, (1874) 20 Wall. U.S. 445; Vannevar v. Bryant, (1874) 21 Wall. U.S. 41; The Lottawanna, (1874) 21 Wall. U.S. 558; Gaines v. Fuentes (1875) 92 U.S. 10; Claffin W. Houseman, (1876) 93 U.S. 130; Muller v. Dows, (1876) 94 U.S. 444; Doyle v. Continental Ins. Co., (1876) 94 U.S. 535; U.S. v. Union Pac. R. Co., (1878) 98 U.S. 589; Tennessee v. Davis, (1879) 100 U.S. 257; Ex p. Boyd, (1881) 105 U.S. 647; Bush v. Kentucky, (1882) 107 U.S. 110; Parkersburg, etc., Transp. Co. v. Parkersburg, (1882) 107 U.S. 691;
Grads v. U.S. Mortgage Co., (1883) 108 U.S. 477; Chicago, etc., R. Co. v. Wiggins Ferry Co, (1893) 108 U.S. 18; Louisiana v. New Orleans, (1883) 108 U.S. 568; Ellis v. Davis, (1883) 109 U.S. 485; Carroll County v. Smith, (1884) 111 U.S. 556; Southern Pac. R. Co. v. California, (1888) 118 U.S. 109; Barron v. Burnside, (1887) 121 U.S. 186; Lincoln County v. Luning. (1890) 133 U.S. 529; Hans v. Louisiana (1890) 134 U.S. 1; North Carolina v. Temple, (1890) 134 U.S. 22; In re Neagle, (1890) 135 U.S. 1; Nashua, etc., R. Corp. v. Boston, etc., R. Corp., (1890) 136 U.S. 356; Jones v. U.S., (1890) 137 U.S. 202; Cook County v. Calumet, etc., Canal, etc, Co., (1891) 138 U.S. 635; Manchester v. Massachusetts, (1891) 139 U.S. 240; In re Garnett, (1891) 141 U.S. 1; U.S. v. Texas (1892) 143 U.S. 821; Southern Pac. R. Co. v. Denton, (1892) 146 U.S. 202; Cooke v. Avery, (1893) 147 U.S. 375; Cates v. Allen, (1893) 149 U.S. 451; McNulty v. California. (1893) 149 U.S. 645; In re Tyler. (1893) 149 U.S. 104; Newport Light Co. v. Newport, (1894) 151 U.S. 527; New York, etc., R. Co. v. Bristol, (1894) 151 U.S. 650; Isreal v. Arthur, (1894) 152 U.S. 355; Michigan v. Flint, etc., R Co., (1894) 152 U.S. 363; New Orleans v. Benjamin, (1894) 153 U.S. 411; Mobile, etc., R. Co. v. Tennessee, (1894) 153 U.S. 486; Reagan v. Farmers' L. & T. Co., (1894) 154 U.S. 362; Interstate Commerce Commission v. Brimson. (1894) 154 U.S. 447; Plumley v. Massachusetts (1894) 166 U.S. 461;
Andrews v. Swartz (1895) 156 U.S. 272; St. Louis etc., R. Co. v. Gill, (1895) 156 U.S. 649; Stevens v. Nichol (1895) 157 U.S. 370; In re Debs (1895) 158 U.S. 564; Central Land Co. v. Laidley, (1895) 159 U.S. 103; Folsom v. Township Ninety-Six, (l895) 159 U.S. 611; Laing v. Rigney, (1896) 160 U.S. 531; St. Louis, etc., R. Co. v. James, (1896) 161 U.S. 545; Woodruff v. Mississippi (1896) 162 U.S. 291; Fallbrook Irrigation Dist. v. Bradley, (1896) 164 U.S. 112; Scott v. Donald (1897) 165 U.S. 107; Robertson v. Baldwin, (1897) 105 U.S. 275; Chicago etc., R. Co. v. Chicago, (1897) 168 U.S. 226; Forsyth v. Hammond (1897) 166 U.S. 506; Oxley Stave Co. v. Butler County, (1897) 166 U.S. 648; In re Lennon, (1897) 166 U.S. 548; City R. Co. v. Citizens' St. R. Co., (1897) 166 U.S. 557; Douglas v. Kentucky, (1897) 168 U.S. 488; Miller v. Cornwall R. Co., (1897) 168 U.S. 131; Baker v. Grice, (1898) 169 U.S. 284; Smyth v. Ames (1898) 169 U.S. 466; Backus v. Fort St. Union Depot Co.. (1898) 169 U.S. 557; Tinsley v. Anderson, (1898) 171 U.S. 101; Walla Walla v. Walla Walla Water Co., (1898) 172 U.S. 1; Green Bay, etc., Canal Co. v. Patten Paper Co., (1898) 172 U.S. 58; Meyer v. Richmond (1898) 172 U.S. 82; McCullough v. Virginia, (1898) 172 U.S. 102; Fitts u. McGhee (1899) 172 U.S. 516; Dewey v. Des Moines (1899) 173 U.S. 193; Nicol v. Ames, (1899) 173 U.S. 500; Covington v. Kentucky, (1899) 173 U.S. 231, La Abra Silver Min. Co. v. U.S.. (1899) 175 U.S. 423;
Louisiana v. Texas (1900) 176 U.S. 1; Whitman v. Oxford Nat. Bank, (1900) 176 U.S. 559; Hancock Nat. Bank v. Farnum, (1900) 176 U.S. 640; Carter v. Texas (1900) 177 U.S. 442; Smith v. Reeves (I900) 178 U.S. 436; Western Union Tel. Co. v. Ann Arbor R. Co.. (1900) 178 U.S. 239; Wiley v. Sinkler, (1900) 170 U.S. 58; Missouri v. Illinois (1901) 180 U.S. 208, Eastern Bldg., etc.. Assoc. v. Welling. (1901) 181 U.S. 47; Dooley V. U.S., (1901) 182 U.S. 222; Tullock v. Mulvane (1902) 184 U.S. 497; Patton v. Brady. (1902) 184 U.S. 608; Kansas v. Colorado, (1902) 185 U.S. 125; Swafford v. Templeton, (1902) 185 U.S. 487; Mobile Transp. Co. v. Mobile. (1903) 187 U.S. 470; Andrews v. Andrews. (1903) 188 U.S. 14; Hooker v. Los Angeles, (1903) 188 U.S. 314; Cummings v. Chicago, (1903) 188 U.S. 410; Schaefer v. Werling. (1903) 188 U.S. 516; The Roanoke (1903) 189 U.S. 185; Detroit, etc., R. Co. v. Osborn (1903) 189 U.S. 383; Patterson v. Bark Eudora (1903) 190 U.S. 169; Howard v. Fleming, (1903) 191 U.S. 126; Arbuckle b. Blackburn, (1903) 191 U.S. 405; Deposit Bank b. Frankfort (1903) 191 U.S. 499; Spencer v. Duplan Silk Co. (1903) 191 U.S. 526; Wabash R. Co. v. Pearce, (1904) 192 U.S. 179; Rogers v. Alabama (1904) 192 U.S. 226; South Dakota v. North Carolina (1904) 192 U.S. 286; Bankers Mut. Casualty Co. v. Minneapolis, etc., R. Co. (1904) 192 U.S. 371; Spreckels Sugar Refining Co. v. McClain (1904) 192 U.S. 397.
(44) U.S. v. Insurgents, (1795) 2 Dall. U.S. 335; U.S. v. Mitchell (1795) 2 Dall. U.S. 348; Ex p. Bollman, (1807) 4 Cranch U.S. 75; Burr's Trial, 4 Cranch U.S. 469.
"To prevent the possibility of those calamities which result from the extension of treason to offenses of minor importance, that great fundamental law which defines and limits the various departments of our government has given a rule on the subject both to the legislature and the courts of America, which neither can be permitted to transcend. `Treason against the United States shall consist only in levying war against them, or in adhering to their enemies. giving them aid and comfort.'" Per Mr. Chief Justice Marshall, In Ex p. Dollnan, (1807) 4 Cranch U.S. 128. See also U.S. v. Hoxie, (1808) I Paine U.S. 265.
"In the earlier periods of English history, the judges were often the pliant tools of the king, and exercised the power of punishing for constructive treasons, under circumstances the most revolting and greatly to the oppression of innocent persons. The wise and sagacious framers of our Constitution have effectually guarded against such abuses of power, by declaring there shall be no conviction for this high crime on mere suspicion or on proof of any fact which is not an overt act of treason established by two witnesses. Charge to Grand Jury, (1861) 1 Bond U.S. 610.
(45) Bigelow v. Forrest, (1869) 9 Wall. U.S. 330; Day v. Micou, (1873) 18 Wall. U.S. 156; Ex p. Lange, (1873) 18 Wall. U.S. 163; Wallach v. Van Riswick, (1876) 92 U.S. 202; U.S. v. Dunnington. (1892) 146 U.S. 338.
"What was intended by the constitutional provision is free from doubt. In England, attainders of treason worked corruption of blood and perpetual forfeiture of the estate of the person attainted, to the disinherison of his heirs, or of those who would otherwise be his heirs. Thus innocent children were made to suffer because of the offense of their ancestor. When the Federal Constitution was framed, this was felt to be a great hardship, and even rank injustice. For this reason, it was ordained that no attainder of treason should work corruption of blood or forfeiture, except during the life of the person attainted." Wallach v. Van Riswick, (1875) 92 U.S. 210.
(46) Mills v. Duryee (1813) 7 Cranch U.S. 481; Hampton v. M'Connel (1818) 3 Wheat. U.S. 234; Mayhew v. Thatcher (1821) 6 Wheat U.S. 129; Darby v. Mayer, (1825) 10 Wheat. U.S. 465; U.S. v. Amedy, (1826) 11 Wheat. U.S. 302; Caldwell v. Carrington, (1835) 9 Pet. U.S. 86; M'Elmoyle v. Cohen (1830) 13 Pet. U.S. 312, Augusta Bunk v. Earle, (1839) 13 Pet. U.S. 519; Alabama State Bank v. Dalton, (1850) 9 Huw. U.S. 622; D'Arey v. Ketchum (1850) 11 How. U.S. 165; Christmas v. Russell, (1866) 5 Wall. U.S. 200; Green v. Van Buskirk, (1868) 7 Wall. U.S. 130; Paul v. Virginia, (1868) 8 Wall. U.S. 168; Board of Public Works v. Columbia Cullege (1873) 17 Wall. U.S. 521; Thompson v. Whitman (1873) 18 Wall. U.S. 457; Pennoyer v. Neff (1877) 95 U.S. 714; Bonaparte v. Appeal Tax Ct.. (1882) 104 U.S. 692; Robertson v. Pickrell, (1883) 100 U.S. 608; Brown v. Houston (1885) 114 U.S. 622; Hanley v.. Donoghue, (1885) 116 U.S. 1; Renaud v. Abbott (1886) 116 U.S. 277; Chicago, etc., R. Co. v. Wiggins Ferry Co., (1887) 119 U.S. 615; Borer v. Chapman (1887) 110 U.S. 587; Cole v. Cunningham (1890) 133 U.S. 107; Blount v. Walker (1890) 134 U.S. 607; Simmons v. Saul (1891) 138 U.S. 439; Reynolds v. Stockton (1891) 140 U.S. 254; Carpenter v. Strange (189l) 141 U.S. 87; Huntington v. Attrill, (1892) 146 U.S. 657; Glenn v. Garth, (1893) 147 U.S. 360; Laing v. Rigney, (1896) 160 U.S. 531; Chicago, etc., R. Co. v. Sturm, (1890) 174 U.S. 710; Thormann v. Frame, (1900) 178 U.S. 350; Hancock Nat. Bank v. Farnum, (1900) 176 U.S. 640;
Clarke v. Clarke, (1900) 178 U.S. 186; Wilkes County v. Coler, (1901) 180 U.S. 506; W. W. Cargill Co. v. Minnesota, (1901) 180 U.S. 452; Johnson v. New York L. Ins. Co., (1903) 187 U.S. 491; Andrews v. Andrews, (1903) 188 U.S. 14; Blackstone v. Miller, (1903) 188 U.S. 180; Finney v. Guy (1903) 189 U.S. 335; Wabash R. Co. v. Flannigan, (1904) 192 U.S. 29; Germann Sav., etc., Soc. v. Dormitzer, (1904) 192 U.S. 125; Wedding v. Meyer, (1904) 192 U.S. 573.
(47) U.S. Bank v. Deveaux, (1809) 5 Cranch U.S. 61; Gassies v. Ballon, (1832) 6 Pet. U.S. 761; Rhode Island v. Massachusettts (1838) 12 Pet. U.S. 657; Augusta Bank v. Earle (1839) 13 Pet. U.S. 519; Moore v. Illinois, (1852) 14 How. U.S. 13; Conner v. Elliott, (1855) 18 How. U.S. 591; Dred Scott v. Sandford (1856) 19 How. U.S. 393; Crandall v. Nevada (1867) 6 Wall. U.S. 35; Woodruff v. Parham, (1868) 8 Wall. U.S. 123; Paul v. Virginia (1868) 8 Wall. U.S. 168; Downham v. Alexandria (1869) 10 Wall. U.S. 173; Liverpool Ins. Co. v. Massachusetts (1870) 10 Wall. U.S. 566; Ward v. Maryland, (1870) 12 Wall. U.S. 418; Slaughter-House Cases (1872) 16 Wall. U.S. 36; Bradwell v. State, (1872) 18 Wall. U.S. 130; Chemung Canal Bank v. Lowery, (1876) 93 U.S. 72; McCready v. Virginia, (1876) 104 U.S. 391; Philadelphia Fire Assoc. v. New York, (1886) 119 U.S. 110; Pembina Consol. Silver Min., etc., Co. v. Pennsylvania (1888) 125 U.S. 181; Kimmish v. Ball, (1889) 129 U.S. 217; Cole v. Cunningham, (1890) 133 U.S. 107; Manchester v. Massachusetts, (1891) 139 U.S. 240; Pittsburg, etc., Coal Co. v. Bates, (1895) 156 U.S. 577; Vance v. W. A. Vandercock Co., (1898) 170 U.S. 438; Blake v. McClung, (1898) 172 U.S. 239; Williams v. Fears, (1900) 179 U.S. 270; Travellers, Ins. Co. v. Connecticut, (1902) 165 U.S. 364; Chadwick v. Kelley, (1903) 187 U.S. 540; Diamond Glue Co. v. U.S. Glue Co., (1903) 187 U.S. 611; Blackstone v. Miller, (1903) 188 U.S. 189; Anglo-American Provision Co. v. Davis Provision Co., (1903) 191 U.S. 373.
"The Constitution of the United States declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. And although these privileges and immunities, for greater safety, are placed under the guardianship of the general government, still the States may by their laws and in their tribunals protect and enforce them. They have not only the power, but it is a duty enjoined upon them by this provision in the Constitution." Per Mr. Justice Taney, in Prigg v. Pennsylvania (1842) 16 Pet. U.S. 629.
(48) Holmes v. Jennison, (1840) 14 Pet. U.S. 540; Kentucky v. Dennison, (1860) 24 How. U.S. 66; Taylor v. Taintor, (1872) 16 Wall. U.S. 366; Carroll County v. Smith (1884) 111 U.S. 556; Ex p. Reggel (1885) 114 U.S. 642; Mahon v. Justice (1888) 127 U.S. 700; Lascelles v. Georgia, (1893) 148 U.S. 637; Utter v. Franklin. (1899) 172 U.S. 416.
(49) Prigg v. Pennsylvania, (1842) 16 Pet. U.S. 639; Jones v. Van Zandt, (1847) 6 How. U.S. 215; Strader v. Graham (1850) 10 How. U.S. 82, Moore v. Illinois (1852) 14 How. U.S. 13; Dred Scott v. Sandford, (1856) 19 How. U.S. 393; Ableman v. Booth, (1858) 21 How. U.S. 506.,
"Every State has an undoubted right to determine the status, or domestic and social condition, of the persons domiciled within its territory; except insofar as the powers of the States in this respect are restrained, or duties and obligations imposed on them, by the Constitution of the United States." Strader v. Graham, (1850) 10 How.U.S. 93.
(50) Luther v. Borden. (1840) 7 How. U.S. 1; Texas v. White. (1868) 7 Wall. U.S. 700; In re Duncan (1891) 139 U.S. 449; Taylor v. Beckham, (1900) 178 U.S. 548.
(51) "It was one of the objections most seriously urged against the new constitution by those who opposed its ratification by the States, that it contained no formal Bill of Rights. (Federalist. No.lxxxiv.) And the State of Virginia accompanied her ratification by the recommendation of an amendment embodying such a bill. (3 Elliot's Debates, 661.) The feeling on this subject led to the adoption of the first ten amendments to that instrument at one time, shortly after the government, was organized. These are all designed to operate as restraints on the general government, and most of them for the protection of private rights of persons and property. Notwithstanding this reproach, however, there are many provisions in the original instrument of this latter character." Kring v. Missouri (1882) 107 U.S. 226.
(52) Terrett v. Taylor, (1815) 9 Cranch U.S. 43; Vidal v. Philadelphia, (1844) 2 How. U.S. 127; Ex p. Garland, (1866) 4 Wall. U.S. 333; U.S. v. Cruikshank (1875) 92 U.S. 542; Reynolds v. U.S. (1878) 98 U.S. 145; Spies v. Illinois (1887) 123 U.S. 131; Davis v. Beason, (1890) 133 U.S. 333; Eilenbecker v. Plymouth County, (1890) 134 U.S. 31; Church of Jesus Christ v. U.S., (1890) 138 U.S. 1; In re Rapier (1892) 143 U.S. 110; Horner v. U.S., (1892) 143 U.S. 207; Bradfield v. Roberts (1899) 175 U.S. 291.
(53) "The right of the people peaceably to assemble for this purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances." U.S. v. Cruikshank (1875) 92 U.S. 552.
(54) Presser v. Illinois (1886) 116 U.S. 252; Spies v. Illinois (1887) 123 U.S. 131; Eilenbeeker v. Plymouth County, (1890) 134 U.S. 31.
"This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, (1837) 11 Pet. U.S. 139, the powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' `not surrendered or restrained' by the Constitution of the United States." U.S. v. Cruikshank, (1875) 92 U.S. 553.
(55) Smith v. Maryland, (1855) 18 How. U.S. 71; Murray v. Hoboken Land, etc., Co., (1855) 18 How. U.S. 272; Ex p. Milligan (1866) 4 Wall. U.S. 2; Boyd v. U.S., (1886) 116 U.S. 616; Spies v. Illinois (1887) 123 U.S. 131; Eilenbeeker v. Plymouth County (1890) 134 U.S. 31; Fong Yue Ting v. U.S., (1893) 149 U.S. 608; Interstate Commerce Commission v. Brimson, (1894) 154 U.S. 447; In re Chapman, (1897) 166 U.S. 661; Adams v. New York, (1904) 192 U.S. 585.
(56) The security intended to be guaranteed by the Fourth Amendment against wrongful search and seizure is designed to prevent violations of private security in person and property and unlawful invasion of the sanctity of the home of the citizen by officers of the law, acting under legislative or judicial sanction, and to give remedy against such usurpations when attempted. But the English and nearly all of the American cases have declined to extend this doctrine to the extent of excluding testimony which has been obtained by such means, if it is otherwise competent." Adams v. New York, (19O4) 192 U.S. 598.
(57) U.S. v. Perez (1824) 9 Wheat. U.S. 579; Barron v. Baltimore. (1833) 7 Pet. U.S. 243; Fox v. Ohio (1847) 5 How. U.S. 410; West River Bridge Co. v. Dix, (1848) 6 How. U.S. 507; Mitchell v. Harmony (1851) 13 How. U.S. 115; Moore v. Illinois (1852) 14 How. U.S. 13; Murray v. Hoboken Land, etc., Co., (1855) 18 How. U.S. 272; Dynes v. Hoover, (1857) 20 How. U.S. 65; Withers v. Buckley, (1857) 20 How. U.S. 84; Gilman v. Sheboygan (1862) 2 Black U.S. 510; Ex p. Milligan, (1866) 4 Wall. U.S. 2; Twitchell v. Pennsylvania, (1868) 7 Wall. U.S. 321; Hepburn v. Griswold, (1869) 8 Wall. U.S. 603; Miller v. U.S., (1870) 11 Wall. U.S. 268; Legal Tender Cases (1870) 12 Wall. U.S. 457; Pumpelly v. Green Bay, etc., Canal Co., (1871) 13 Wall. U.S. 166; Osborn v. Nicholson, (187l) 13 Wall. U.S. 654; Ex p. Lange (1873) 18 Wall. U.S. 163; Kohl v. U.S., (1875) 91 U.S. 367; Davidson v. New Orleans (1877) 96 U.S. 97; Sinking Fund Cases (1878) 99 U.S. 700; Langford v. U.S., (1879) 101 U.S. 341, Kelly v. Pittsburgh, (1881) 104 U.S. 78; Ex p. Wall (1882) 107 U.S. 265; U.S. v. Jones (1883) 109 U.S. 513; U.S. v. Great Falls Mfg. Co., (1884) 112 U.S. 645; Ex p. Wilson (1885) 114 U.S. 417; Boyd v. U.S., (1886) 116 U.S. 616; Mackin v. U.S., (1886) 117 U.S. 348; Ex p. Bain (1887) 121 U.S. 1; Parkinson v. U.S., (1887) 121 U.S. 281; Spies v. Illinois, (1887) 123 U.S. 131; Callan v. Wilson (1888) 127 U.S. 540; U.S. v. De Walt (1888) 128 U.S. 393; Manning v. French, (1890) 133 U.S. 186;Eilenbecker v. Plymouth County, (1890) 134 U.S. 31; Louisville, etc. R. Co. v. Woodson (1890) 134 U.S. 614; In re Ross, (1891) 140 U.S. 453; Counselman v. Hitchcock, (1892) 142 U.S. 547; Simmons v. U.S. (1891) 142 U.S. 148; Thorington v. Montgomery (1893) 147 U.S. 490; Monongahela Nav. Co. v. U.S., (1893) 148 U.S. 312; Fong Yue Ting v. U.S., (1893) 149 U.S. 698; Lees v. U.S. (1893) 150 U.S. 476; Marchant v. Pennsylvania R. Co., (1894) 153 U.S. 380; Linford v. Ellison, (1894) 155 U.S. 503; Johnson v. Sayre, (1895) 158 U.S. 100; Sweet v. Rechel (1895) 159 U.S. 380; Brown v. Walker. (1896) 161 U.S. 591; Wong Wing v. U.S., (1996) 163 U.S. 228; Talton v. Mayes (1896) 163 U.S. 376; Bauman v. Ross, (1897) 167 U.S. 648; Wilson v. Lambert, (1898) 168 U.S. 611; U.S. v. Joint Traffic Assoc. (1898) 171 U.S. 505; Maxwell v. Dow (1900) 176 U.S. 581; Scranton v. Wheeler, (1900) 170 U.S. 141; McDonald v. Massachusetts (1901) 180 U.S. 311; Neely v. Henkel, (1901) 180 U.S. 109; French v. Barber Asphalt Paving Co., (1901) 181 U.S. 324; Wight v. Davidson, (1901)181 U.S. 371; Tonawanda v. Lyon (1901) 181 U.S. 389; Capital City Dairy Co. v. Ohio (1902) 183 U.S. 238; Hanover Nat. Bank v. Moyses (1902) 186 U.S. 181; Dreyer v. Illinois (1902) 187 U.S. 71; Lone Wolf v. Hitchcock (1903) 187 U.S. 553; U.S. v. Lynah (1903) 188 U.S. 445; Japanese Immigrant Case (1903) 189 U.S. 86; Hawaii v. Mankichi (1903) 190 U.S. 197; Bedford v. U.S.. (1904) 192 U.S. 217; Buttfield v. Stranahan (1904) 192 U.S. 470; Adams v. New York, (1904) 192 U.S. 585.
(58) See cases cited in note 2, supra.
(59) See cases cited in note 2, supra.
(60) See cases cited in note 2, supra.
(61) See cases cited in note 2, supra.
(62) U.S. v. Coolidge, (1816) 1 Wheat. U.S. 415; Ex p. Kearney, (1822) 7 Wheat. U.S. 38; U.S. v. Mills, (1833) 7 Pet. U.S. 142; Barron v. Baltimore, (1833) 7 Pet. U.S. 243; Fox v. Ohio, (1847) 5 how. U.S. 410; Withers v. Buckley, (1857) 20 How. U.S. 84; Ex p. Milligan, (1866) 4 Wall. U.S. 2; Twitchell v. Pennsylvania (1868) 7 Wall. U.S. 321; Miller v. U.S. (1870) 11 Wall. U.S. 268; U.S. v. Cook, (1872) 17 Wall. U.S. 168; U.S. v. Cruikshank, (1875) 92 U.S. 542; Reynolds v. U.S., (1878) 98 U.S. 145; Spies v. Illinois, (1887) 123 U.S. 131; Brooks v. Missouri, (1888) 124 U.S. 394; Callan v. Wilson, (1898) 127 U.S. 540; Eelenbecker v. Plymouth County, (1890) 134 U.S. 31; Jones v. U.S., (1890) 137 U.S. 202; Cook v. U.S., (1891) 138 U.S. 157; In re Shibuya Jugiro, (1891) 140 U.S. 291; In re Ross (1891) 140 U.S. 453; Fong Yue Ting v. U.S., (1893) 149 U.S. 698; Mattox v. U.S. (1895) 156 U.S. 237; Rosen v. U.S. (1896) 161 U.S. 29; U.S. v. Zucker, (1896) 161 U.S. 475; Wong Wing v. U.S. (1896) 163 U.S. 228; Thompson v. Utah, (1898) 170 U.S. 343; Maxwell v. Dow, (1900) 176 U.S. 581; Motes v. U.S. (1900) 178 U.S. 458; Fidelity, etc, Co. v. U.S.. (1902) 187 U.S. 315; Hawaii v. Mankiche (1903) 190 U.S. 197.
(63) U.S. v. La Vengeance, (1796) 3 Dall. U.S. 297; Columbia Bank v. Okely, (1819) 4 Wheat. U.S. 235; Parsons v. Bedford. (1830) 3 Pet. U.S. 433; Livingston v. Moore, (1833) 7 Pet. U.S. 469; Webster v. Reid, (1850) 11 How. U.S. 437; Pennsylvania v. Wheeliag, etc., Bridge Co., (1851) 13 How. U.S. 518; Justices v. Murray, (1869) 9 Wall. U.S. 274; Edwards v. Elliott, (1874) 21 Wall. U.S. 532; Pearson v. Yewdall, (1877) 95 U.S. 294; MeElrath v. U.S. (1880) 102 U.S. 426; Spies v. Illinois (1887) 123 U.S. 131; Arkansas Valley Land. etc., Co. v. Mann (1889) 130 U.S. 69; Eilenbecker v. Plymouth County. (1890) 134 U.S. 31; Whitehead v. Shattuck, (1891), 138 U.S. 146; Scott v. Neely, (1891) 140 U.S. 106; Cates v. Allen (1893) 149 U.S. 451; Fong Yue Ting v. U.S., (1893) 149 U.S. 698; Coughran v. Bigelow, (1896) 164 U.S. 301; Walker v. New Mexico, etc., R. Co.. (1897) 165 U.S. 693; Chicago, etc., R. Co. v. Chicago (1897) 166 U.S. 226; American Pub. Co. v. Fisher (1897) 166 U.S. 464; Fidelity, etc., Co. v. U.S. (1902) 187 U.S. 315.
(64) Sm ca"d cited in note 1, supra.
(65) Pervear v. Massachusetts (1866) 5 Wall. U.S. 475; Spies v. Illinois (1887) 123 U.S. 131; Manning v. French, (1890) 133 U.S. 186; Eilenbecker v. Plymouth County, (1890) 134 U.S. 31; McElvaine v. Brush, (1891) 142 U.S. 155, O'Neili v. Vermont, (1892) 144 U.S. 323; McDonald v. Massachussetts (1901) 180 U.S. 311.
(66) Livingston v. Moore, (1833) 7 Pet. U.S. 469; Spies v. Illinois (1887) 123 U.S. 131.
"This government is acknowledged by all to be one of enumerated 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 question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise, as long as our system shall exist." M'Culloch v. Maryland, (1819) 4 Wheat. U.S. 405.
(67) Chisholm v. Georgia. (1793) 2 Dall. U.S. 419; Hollingsworth v. Virginia, (1798) 3 Dall. U.S. 378; Martin v. Hunter, (1816) 1 Wheat. U.S. 304; M'Culloch v. Maryland. (1819) 4 Wheat. U.S. 316; Anderson v. Dunn, (1821) 6 Wheat U.S. 204; Cohen v. Virginia (1821) 6 Wheat U.S. 264; Osborn v. U.S. Bank (1824) 9 Wheat. U.S. 738; Buckner v. Finley, (1829) 2 Pet. U.S. 586; Ableman v. Booth, (1858) 21 How. U.S. 506; Collector v. Day, (1870) 11 Wall. U.S. 113; Claffin v. Houseman, (1876) 93 U.S. 130; Inman Steamship Co. v. Tinker, (1876) 94 U.S. 238; U.S. v. Fox. (1876) 94 U.S. 315; Tennessee v. Davis (1879) 100 U.S. 257; Spies v. Illinois, (1887) 123 U.S. 131; Pollock v. Farmers' L & T. Co., (1895) 157 U.S. 429; Forsyth v. Hammond, (1897) 166 U, S. 506; St. Anthony Falls Water Power Co. v. St. Paul Water Com'rs, (1897) 168 U.S. 349; Missouri, etc., R. Co., v. Haber (1898) 169 U.S. 613; Hancock Mut. L Ins. Co. v. Warren, (1901) 181 U.S. 73; Kansas v. Colorado. 185 U.S. 125; Andrews v. Andrews (1903) 188 U.S. 14; Church v. Kelsey, (1887) 121 U.S. 282; Ouachita Packet Co. v. Aiken, (1887) 127 U.S. 444; Western Union Tel. Co. v. Pendleton. (1887) 122 U.S. 347; Bowman v. Chicago, etc. R. Co.. (1888) 126 U.S. 465; Mahon v. Justice (1888) 127 U.S. 700; Leisy v. Hardin (1890) 135 U.S. 100; Manchester v. Massachusetts (1891) 139 U.S. 240.
"The 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 powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people.... 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 its provisions, looks to an indestructible Union, composed of indestructible States." Texas v. White, (1868) 7 Wall. U.S. 700.
(68) Ohio v. Dollison. (1904) 194 U.S. 445.
"That the first ten articles of amendment were not intended to limit the powers of the State governments in respect to their own people, but to operate on the national government alone, was decided more than a half century ago, and that decision has been steadily adhered to since." Spies v. Illinois (1887) 123 U.S. 166.
(69) "Apportionment is an operation on States, and involves valuations and assessments which are arbitrary, and should not be resorted to but in case of necessity. Uniformity is an instant operation on individuals, without the intervention of assessments, or any regard to States, and is at once easy, certain, and efficacious." Per Patterson, J., in Hylton v. U.S. (1794) 3 Dall. U.S. 180.
(70) (1895) 157 U.S. 429, 158 U.S. 601.
(71) (1880) 103 U.S. 168.
(72) (1824) 9 Wheat. U.S. 1.
(73) (1824) 9 Wheat. U.S. 1.
(74) Northern Securities Co. v. U.S. (1904) 193 U.S. 197.
(75) The power conferred by this provision of the Constitution "is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all 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." Per Mr. Chief Justice Marshall, in Gibbons v. Ogden (1824) 9 Wheat. U.S. 197.
(76) "The power to regulate commerce covers a wide field, and embraces a great variety of subjects. Some of these subjects call for uniform rules and national legislation; others can be best regulated by rules and provisions suggested by the varying circumstances of different localities, and limited in their operation to such localities respectively. To this extent the power to regulate commerce may be exercised by the States. Whether the power in any given case is vested exclusively in the general government depends upon the nature of the subject to be regulated." Gilman v. Philadelphia (1865) 3 Wall. U.S. 726. See also Cooley v. Board of Wardens (1851) 12 How. U.S. 319. Exp. McNiel (1871) 13 Wall U.S. 240; Mobile County v. Kimball (1881) 102 U.S. 691; Walling v. Michigan (1886) 116 U.S. 455; Robbins v. Shelby County Taxing Dist. (1887) 120 U.S. 492.
(77) Northern Securities Co. v. U. S., (1904) 193 U. S. 197.
(78) McCready v. Virginia (1876) 94 U.S. 391.
(79) Geerv. Connecticut (1896) 161 U.S. 519.
(80) Lawton v. Steele (1894) 152 U.S. 133.
(81) 3 Bl. Com. 129.
(82) Ex p. Yerger, (1868) 8 Wall. U.S. 95.
(83) In re Neagle, (1890), 136 U. S. 1; In re Frederich. (1893) 140 U.S. 70.
(84) Ableman v. Booth (1858) 21 How. U.D. 506; Tarble's Case (187l) 13 Wall. U.S. 397.
(85) The great and leading intent of the Constitution and the law must be kept constantly in view upon the examination of every question of construction. That intent, in respect to the writ of habeus corpus, is manifest. It is that every citizen may be protected by judicial action from unlawful imprisonment. To that end the Act of 1789 provided that every court of the United State should have power to issue the writ. The jurisdiction thus given in law to the circuit and district courts is original; that given by the Constitution and the law to this court in appellate. Given in general terms, it must necessarily extend to all cases to which the judicial power of the United States extends, other than those expressly excepted from it." Ex p. Yerger, (1868) 8 Wall. U.S. 101.
(86) (1866) 4 Wall. (U.S.) 2.
(87) "So much importance did the convention attach to it [the prohibition against the passage of any ex post facto law], that it is found twice in the Constitution, first as a restraint upon the power of the general government, and afterwards as a limitation upon the legislative power of the States." Kring v. Missouri, (1882) 107 U.S. 227.
"All the restrictions contained in the Constitution of the United States on the power of the State legislatures were provided in favor of the authority of the Federal government. The prohibition against their making any es post facto laws was introduced for greater caution, and very probably arose from the knowledge that, the Parliament of Great Britain claimed and exercised a power to pass such laws, under the denomination of bills of attainder. or bills of pains and penalties." Calder v. Bull (1798) 3 Dall. U.S. 386.
(88) Cummings v. Missouri. (1866) 4 Wall. U.S. 323.
(89) (1866) 4 Wall. U.S. 277.
(90) (1866) 4 Wall. U.S. 333.
(91) Fletcher v. Peck (1810) 6 Cranch U.S. 138.
"Laws of this character are oppressive, unjust, and tyrannical; and, as such, are condemned by the universal sentence of civilized man. The injustice and tyranny which characterizes ex Post facto laws consist altogether in their retrospective operation, with applied with equal force, although not exclusively, to bills of attainder." Ogden v. Saunders, (1827) 12 Wheat. U.S. 266.
(92) Carpenter v. Pennsylvania, (1854) 17 How. U.S. 456.
(93) "As the clause was first adopted, the words concerning contracts were not in it, because it was supposed that the phrase, `ex Post facto law' included laws concerning contracts as well as others. But it was ascertained before the completion of the instrument that this was a phrase which, in English jurisprudence, had acquired a signification limited to the criminal law, and the words `or law impairing the obligation of contracts' were added to give security to rights resting in contracts. 2 Bancroft's History of the Constitution, 213." Kring v. Missouri, (1882) 107 U. S. 227.
"The evil which this inhibition on the States was intended to prevent is found in the history of our Revolution. By repeated acts of legislation in the different States, during that eventful period, the obligation of contracts was impaired. The time and mode of payment were altered by law; and so far was this interference of legislation carried, that confidence between man and man was well-nigh destroyed. Those proceedings grew out of the paper system of that day; and the injuries which they inflicted were deeply felt in the country at the time the Constitution was adopted. The provision was designed to prevent the States from following the precedent of legislation so demoralizing in its effects, and so destructive to the commercial prosperity of a country." Per Mr. Justice McLean, in Charles River Bridge v. Warren Bridge (1837) 11 Pet. U.S. 573. See also Edwards v. Kearzey (1877) 96 U.S. 604, et seq.
(94) (1837) 11 Pet. U.S. 420.
(95) "It is competent for the States to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances." Von Hoffman v. Quincy. (1866) 4 Wall. U.S. 553.
(96) U. S. Bank v. Devereaux, (1809) 5 Cranch U.S. 61.
(97) Gassies v. Ballon, (1832) 6 Pet. U.S. 761.
(98) Augusta Bank v. Earle, (1839) 13 Pet. U.S. 519; Lafayette Ins. Co. v. French, (1855) 18 How. U.S. 404, Ducat v. Chicago (1870) 10 Wall. U.S. 410; Liverpool Ins. Co. v. Massachusetts (1870) 10 Wall. U.S. 566; Paul v. Virginia, (1869) 8 Wall. U.S. 168; Philadelphia Fire Assoc v. New York, (1886) 110 U.S. 110; Pembina Consol. Silver Min., etc.. Co. v. Pennsylvania (1888)
125 U.S. 181; Orient Ins. Co. v. Daggs, (1899) 172 U.S. 561.
"A grant of corporate existence is a grant of special privileges to the corporators, enabling them to act for certain designated purposes as a single individual, and exempting them (unless otherwise especially provided) from individual liability. The corporation, being the mere creation of local law, can have no legal existence beyond the limits of the sovereignty where created. . . . It must dwell in the place of its creation, and cannot migrate to another sovereignty." Paul v. Virginia, (1868) 8 Wall. U.S. 181.
(99) Anglo-American Provision Co. v. Davis Provision Co., (1903) 191 U.S.373.
(100) Home Ins. Co. v. Morse, (1874) 20 Wall. U.S. 445; Doyle v. Continental Ins. Co., (1876) 94 U.S. 635; Barron v. Burnside, (1887) 121 U. S. 186.
"The Constitution of the United States declares that the judicial power of the United States shall extend to all cases in law and equity arising under that Constitution, the laws of the United States, and to the treaties made or which shall be made under their authority. . . . to controversies between a State and citizens of another State, and between citizens of different States.. The jurisdiction of the Federal courts, under this clause of the Constitution, depends upon and is regulated by the laws of the United States. State legislation cannot confer jurisdiction upon the federal courts, nor can it limit or restrict the authority given by Congress in pursuance of the Constitution." Home Ins. Co. u. Morse, (1874) 120 Wall. U.S. 463.
(101) Blake v. McClung, (1898) 172 U.S. 230, where the court said: "Although, generally speaking, the State has the power to prescribe the conditions upon which foreign corporations may enter its territory for purposes of business, such a power cannot be exerted with the effect of defeating or impairing rights secured to citizens of the several States by the supreme law of the land."
(102) Pembina Consol. Silver Min., etc., Co. v. Pennsylvania (1888) 125 U.S. 181.
(103) Ward v. Maryland, (1870) 12 Wall. U.S. 419; Guy v. Baltimore, (1879) 100 U. S. 434; Walling v. Michigan. (1886) 116 U. S. 446.
"No state can, consistently with the Federal Constitution, impose upon the products of other States, brought therein for sale or use, or upon citizens because engaged in the sale therein. or the transportation thereto, of the products of other States, more onerous public burdens or taxes than it imposes upon the like products of its own territory. It this were not so, it is easy to perceive how the power of Congress to regulate commerce with foreign nations and among the several States could be practically annulled, and the equality of commercial privileges secured by the Federal Constitution to citizens of the several States be materially abridged and impaired." Guy v. Baltimore (1979) 100 U.S. 439.
"Grant that the States may impose discriminating taxes against the citizens of other States, and it will soon be found that the power conferred upon Congress to regulate interstate commerce is of no value, as the unrestricted power of the States to tax will prove to be more efficacious to promote inequality than any regulations which Congress can pass to preserve the equality of right contemplated by the Constitution among the citizens of the several States. Excise taxes, it is everywhere conceded, may be imposed by the States, if not in any sense discriminating; but it should not be forgotten that the people of the several States live under one common Constitution, which was ordained to establish justice, and which, with the laws of Congress, and the treaties made by the proper authority, is the supreme law of the land; and that that supreme law requires equality of burden. and forbids discrimination in State taxation when the power is applied to the citizens of other States. Inequality of burden, "well as the want of uniformity in commercial regulations, was one of the grievances of the citizens under the Confederation; and the now Constitution was adopted, among other things, to remedy those defects in the prior system." Ward v. Maryland. (1870) 12 Wall. U.S. 430.
(104) Corson v. Maryland (1887) 120 U.S. 502.
(105) Conner v. Elliott. (1885) 18 How. U.S. 691.
"According to the express words and clear meaning of this clause, no privileges are secured by it, except those which belong to citizenship. Rights, attached by the law to contracts by reason of the place where such contracts are made or executed, wholly irrespective of the citizenship of the parties to those contracts, cannot be deemed `privileges of a citizen,' within the meaning of the Constitution." Conner v. Elliott, (1855) 18 How. U.S. 593.
(106) Travelers Ins. Co. v. Connecticut, (1902) 185 U.S. 364. See also Eldridge v. Trezevant. (1896) 160 U.S. 452.
In passing upon the constitutionality of tax laws, the court "can only consider the legislation that has been had, and determine whether or no its necessary operation results in an unjust discrimination between the parties charged with its burdens. It is enough that the State has secured a reasonably fair distribution of burdens, and that no intentional discrimination has been made against non-residents..... Perfect equality and perfect uniformity of taxation as regards individuals or corporations. or the different classes of property subject to taxation, is a dream unrealized." Travellers Ins. Co. v. Connecticut. (1902) 185 U.S. 364.
(107) Chemung Canal Bank v. Lowery, (1876) 93 U.S. 72.
(108) Slaughter-House Cases (1872) 16 Wall. U.S. 36.
(109) Kimmish v. Ball, (1889) 120 U.S. 217.
(110) Reid v. Colorado, (1902) 187 U.S. 137.
(111) (1901) 181 U.S. 108.
(112) McCready v. Virginia, (1878) 94 U.S. 301; Geer v. Connecticut (1806) 161 U. S. 519; Manchester v. Massachusetts (1891) 139 U.S. 240; Lawton v. Steele, (1804) 152 U.S. 133.
An appropriation by the State of "its tidal waters and their beds to be used by its people as a common for taking and cultivating fish, so far as it may be done without obstructing navigation,... is in fact nothing more than a regulation of the use by the people of their common property. The right which the people of the State thus acquire comes not from their citizenship alone, but from their citizenship and property combined. It is, in fact, a property right, and not a mere privilege or immunity of citizenship." McCready v. Virginia (1876) 94 U.S. 395.
(113) Holmes v. Jennison, (1840) 14 Pet. U.S. 540.
(114) Kentucky v. Dennison, (1860) 24 How. U.S. 66.
(115) Ex p. Reggel, (1885) 114 U.S. 642.
"Looking . . . to the words of the Constitution - to the obvious policy and necessity of this provision to preserve harmony between States, and order and law within their respective borders, and to its early adoption by the colonies, and then by the confederated States, whose mutual interest it was to give each other aid and support whenever it was needed - the conclusion is irresistible, that this compact engrafted in the Constitution included, and was intended to include, every offense made punishable by law of the State in which it was committed, and that it gives the right to the executive authority of the State to demand the fugitive from the executive authority of the State in which he is found; that the right given to `demand' implies that it is an absolute right; and it follows that there must be a correlative obligation to deliver, without any reference to the character of the crime charged, or to the policy or laws of the State to which the fugitive has fled." Kentucky v. Dennison (1860) 24 How. U.S. 103.
(116) Mahon v. Justice, (1888) 127 U. S. 700.
(117) Lascelles v. Georgia, ( 1893) 148 U. S. 537; Roberts v. Reilly, (1885) 116 U. S. 80; 12 Am. and Eng. Encyc. of Law (2d ed.) 606.
"It is settled by the decisions of this court that, except in the case of a fugitive surrendered by a foreign government, there is nothing in the Constitution, treaties or laws of the United States which exempts an offender, brought before the courts of a State for an offence against its laws, from trial and punishment, even though brought from another State by unlawful violence, or by abuse of legal process." Lascelles v. Georgia, (1893) 148 U. S. 543.
(118) U.S. v. Rauscher, (1886) 119 U. S. 407.
(119) People v. Hyatt, (1902) 72 N.Y. 170, and cases cited
(120) (186O) 24 How. U.S. 103.
(121) Pearce v. Texas, (1894) 155 U. S. 311.
(122) Luther v. Borden, (1849) 7 How. U.S. 1.
"Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For the United States guarantee to each State a republican government, Congress must necessarily decide what government is 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 authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal... 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 February 28, 1795,...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." Luther v. Borden (1849) 7How. U.S. 1.
(123) Texas v. White, (1868) 7 Wall. U.S. 700.
(124) In re Duncan (1891) 139 U. S. 449.
(125) Taylor v. Beckham, (1900) 178 U. S. 548.
(126) Kentucky v. Dennison, (1860) 24 How. U.S. 103.
(127) Williams v. Mississippi (1898) 170 U. S. 213; Green v. Mills. (C. C. A. 1895) 69 Fed. Rep. 862, 159 U.S. 651; Giles v. Harris (1903) 189 U. S. 486.
(128) Vidal w. Philadelphia (1844) 2 How. U.S. 198.
(129) For an interesting account of the reasons leading to the adoption of this provision and the manner of its adoption, see Reynolds v. U. S., (1878) 98 U. S. 162-194.
"The oppressive measures adopted, and the cruelties and punishments inflicted by the governments of Europe for many ages, to compel parties to conform, in their religious beliefs and modes of worship, to the views of the most numerous sect, and the folly of attempting in that way to control the mental operations of persons, and enforce an outward conformity to a prescribed standard, led to the adoption of the amendment in question. It was never intended or supported that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morale of society." Davis v. Beason, (1890) 133 U.S. 342.
(130) Terrett v. Taylor (1815) 9 Cranch U.S. 43.
(131) Reynolds v. U.S. (1878) 98 U.S. 145.
By the provision against any law of Congress respecting an establishment of religion, or prohibiting the very exercise thereof, or abridging the freedom of speech or of the press, "Congress was deprived of all legislative power over mere opinion. but was left free to reach actions which were in violation of social duties, or subversive of good order." Reynolds v. U.S. (1878) 98 U.S. 164.
(132) Davis v. Beason, (1890) 133 U.S. 333; Church of Jesus Christ v. U. S., (1890) 136 U.S. 1.
(133) Bradfield v. Roberts, (1899) 175 U. S. 291.
(134) Ex p. Vallandigham, (1863) 1 Wall. U.S. 243.
(135) U. S. v. Williams (1904) 194 U. S. 270, where the court said: "We are not to be understood as deprecating the vital importance of freedom of speech and of the press, or as suggesting limitations on the spirit of liberty, in itself unconquerable, but this case does not involve those considerations. The flaming brand which guards the realm where no human government is needed still bars the entrance; and as long as human governments endure they cannot be denied the power of self-preservation.
"In incorporating these principles (the first ten amendments to the Constitution) into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus the freedom of speech and of the press (Article I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation." Robertson v. Baldwin (1897) 165U.S. 281.
(136) "It is well understood, and received as a commentary on this provision for the liberty of the press, that it was intended to prevent all such previous restraints upon publications as had been practiced by other governments, and in early times here, to stifle the efforts of patriots towards enlightening their fellow subjects upon their rights and the duties of rulers. The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction." Per Parker, C.J., in Com. v. Blanding, (1825) 3 Pick. (Mass.) 314.
(137) Marlin Fire Arms Co. v. Shields, (1902) 171 N. Y. 384, and cases cited.
(138) Ohio v. Dollison, (1904) 194 U. S. 446.