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CHAPTER IV.
OF THE RIGHTS, PRIVILEGES, AND IMMUNITEES 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 monurchy, 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 eertuin 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 accordered 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 Independenace 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 documemts, 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 contititution 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 aboligation 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 appliceible 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 Englaud is derived
largely from a study and adoption of those which were first establicbed
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 tho 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 Americun
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 eolony 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 ber representutives 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 educution.(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 Contititution 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 priviileges and immunities of citizens
in the several Statest? 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 bave at all times beem 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 Wasbington:
"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 whieh 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 mairistrates are their trustees and servants, and at all
times amenable.
3. That government is, or ought to be, iutituted 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 maladministratiou;
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 reprersentativea 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 mun 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 oppreiasive and ought not to be granted.
11. That, in controversies respecting property, and itL suitti between
man itnd 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 governinents.
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 subordinatiou 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 wi@ 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 forbearanee,
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, wbich 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 princeiples concerning the equality of men, their
unalienable rights, that government is instituted to secure those
rights, that it derives its just powerai from the consent of the
goverued, 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 nuturalization 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 iu time of peace.
8. The right to bave 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 Iocal 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 powerers
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 iu its sphere and
possesses ample authority to enforee 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 comtended 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
autherized 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 overwheliuing 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)
Seeiing now that the rights, privileges, and immunities of the
citizens are dependent, for acknowledgmeut 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 Coustitution 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 Stutes.
(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. (ArL 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 deterudned
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, ahall 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 saine; 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 effeetive, 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 commeree with foreign nutions 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 bankruptey
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 offentieti agailwt the law of nations.
(Art. 1, Sec. 8, Cl. 10.)(26)
18. An immwaity. 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 louger 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. (ArL 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 iuipairing 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 consemt 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 vicepresidential 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. (ArL 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 plaee 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 eourt,
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. ln 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 entitied,
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 searebed, 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 Iimb for
the same offense. (Art. V.)(58)
54. An immunity. From being a wituess 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 winesses in his favor; and to have the
assistance of comnsel 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 Uniwd States, otherwise than according to the rules of
common law. (Art. VII.)(64)
60. An immunity. Against the requirement of excesiiive bail, against
the imposition of excessive fines, and against the infliction of cruel
and unusual punishments. (ArL VIII.)(65)
61. A declaration. That the enumeration in the Contititution 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 prhibited to the States, are reserved to the
States respec-tively, or to the people. (Art. X.)(67)
In Lloyd v. Dollinson, decided on May 16,1904, the Supreme Court said
that the first eight amendwents to the Constitution of the United States
have reference to powers exercised by the government of the United
Statest 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-presidentiul 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 legialatures 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 negatived 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 Staltes 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 coneerning their State legislators, and the
provision was adopted from the privileges aecorded 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 Confedreration
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
Stutes. 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 Congrees 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 exereise 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 utterely 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 beyoud 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
sustaiined 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 babeas 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 intrusted 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 aud 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 neccessary 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 sball 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 babeus corpus in their constitutions, and all have
statutes providing for the manner of its issuing.
But there is this distinction between writs of babeas corpus issued
by Federal courts and judges and those issued by State courts and
judges. A writ may issue fron 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 babeas 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. (Immuniity 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 punishmaents
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 successsion 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 cussion 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 discusion 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 provsion 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 jurisdiciton 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 corporationso 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 wbich 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 slaugbter, 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 legitiraate 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 actiou
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 wbich 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 dishorrorable.(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 bim 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 negatived.(119)
From the foundation of the governmer&t and notwithstandiDg 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 difficalt 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 innocemce. 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 autborities 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 wbich 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 govcrnment 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
citizenda 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 knowm 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 facions 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 nevertbeless possessed a right of self-govermment,
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 whichh 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 governament" 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 governwent, 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 embraee 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 Respectitig 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 contraary, the oldest of the bills of rights contains
reverenatial references to religion or the duty which we owne 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 beld 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 Chureb, as successor of
the Established Chureb, 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 odioms, 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 guarainteed 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 puni-s@ent for treasonable, seditious, and inflammatory appeals. In
time of war numerous arrests have been made by 'the authority of
military commissions, aud 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 peaee,
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 preas 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 treaceable 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 articIes affirmed that
`religion, morality, and knowledge, being neccessary for good government
and the happiness of mankind.' and ordained that 'schools. and the means
ot education, should be forever encouraged.' This priaciple was
extended, first by congressional ennactment (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 aud
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 otber 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 compmact
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 repuguancy 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 cosent 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 admirility 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 souudest 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 tho 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 foundatiou 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 Constitutionl 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 thingswithin their territorial limits,
except where surrendered to the general government or restrainedby the
Constitution, they were careful to see to it that taxation and
representation should go together, so that the sobereignty 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 `reprsentatives, 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 Seuato to try timm." 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 hauds 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. Baltimre, 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.
ClairCounty 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 citizenaship in
every other state, that fact creates an interest in this particular in
each other's acts, which does notexist with regard to their bankrupt
laws; since State acts of naturalization would thus be extra-territorial
in their operation, and have an influence on themost vital interest of
other States. On these grounds, State lawsof naturalizationmay be
brought under one of the four heads or classes of powers precluded to
the States, to wit, that of incompatiblity." 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 comerce 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
tosee to it that intercourse among the States and thetransmission of
intelligence are not obstructed or uneccessarily encumberedby 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 jurisdiciton 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 appelate 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;
hamiltonv. 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 ofJesus 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 itso 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 th eline 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; wightv. 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 exceses, 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 prohibiton upon the State to destroysuch
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; ifwith 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. Missourti (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;
Penniiylvania 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.
Benjuiuln, (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. Tenneessee (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. Missiissippi (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. OwensLoro (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; lllinois 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 embarrassmments 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. Kear- ney, (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 lsland 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. Law. rence (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. Donalad (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. barkEudora
(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. McCIain (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 permitte4 to transcend.
`Treation 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. DoIlLnan, (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
c-onstructive 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 suchabuses
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 estabilished 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 otherwisa be his heirs.
Thus innocent children were mada 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
ordrained 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 entitied 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 proviiiion 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 recomendation
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 guvernment, was
organized. These are all designed to operate as retitraints on the
general government, and most of them for the protection of private
rights of persons aud property. Notwitstanding 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 guarantesd 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 exstence, 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 amendmentwere not intended to limit
the powers ofthe 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 legislutures 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 probubly 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 uttainder. 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
altogtther 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 Stater, 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 authroity 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 rightssecured tocitizens of the several States
by the supreme law of the land."
(102) Pembina Consol. Silver Min., etc., Co. v. Pennsylvuaia (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 regulatisms 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 aud 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 aud 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 tidle waters and their beds to
be used by its people as a common for takiug and cultivatiug 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 tthe Constitution - to the obvious
policy and necessity of this provision topreserve harmong between
States, and order and law within theirrespective borders, and to its
early adoption by the colonies, and then by the confederated States,
whose mutual interest itwas to give each other aid and support
wheneverit wasneeded - the conclusion is irrestible, that this
compactengrafted 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 representativesof 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 forcases of domestic violence.
It rested with Congress, too, to determine upon the means proper to be
adopted to fulfil 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 decidingwhether 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 oppresive 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
connformity to a prescribed standard, led to the adoption of the
amendment in question. It was never intended or suppored that the
amendment could be invoked as a protection agaiust legislation for the
punishment of acts inimical to the peace, good order and morale of
soiety." 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
ardoz." 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 brnad 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 notpermit the publication of libels, blasphemousor
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 emlightening their fellow subjects upon their rights
and the duties of rulers. The liberty of the presa 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.