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Constitutional Law In The United States | by Emlin McClain



A book intended to give to students an intelligent conception of the Constitutional Law of the United States, both state and federal, it is essential that the historical development of those institutions and ideas of government which have become characteristic features of our system be noticed, that the practical organization of the government as provided for be explained, and that the interpretation which has been put upon the provisions of constitutional instruments in the solution of difficult and important questions which have arisen shall be stated; and it is especially important that the proper relationship between these various divisions of the subject shall be maintained.

TitleConstitutional Law In The United States
AuthorEmlin McClain
PublisherLongmans, Green, And Co
Year1910
Copyright1904, Longmans, Green, And Co
AmazonConstitutional Law in the United States
Constitutional Law In The United States

By Emlin McClain, LL.D., Justice of the Supreme Court of Ioma; Sometime Lecturer On Constitutional Law At The State University Of Iowa, Author Of "A Treatise On The Criminal Law." Compiler Of "A Selection Of Cases On Constitutional Law."

Second Edition

American Citizen Series.

Edited By Albert Bushnell Hart, LL.D.

To Ellen Griffiths McClain, The Indulgent Sovereign Who Finds Something To Commend In A Book Which Has Temporarily Divided With Her The Allegiance Of Her Willing Subject.

-Preface To Second Edition
In the preparation of a book intended to give to students an intelligent conception of the Constitutional Law of the United States, both state and federal, it is essential that the historical developm...
-Suggestions For Students, Teachers, And Readers
It seems desirable to impress upon the teacher who makes use of this book as a foundation for a course of instruction, and upon the reader who resorts to it to secure a general outline of constitution...
-Small Reference Library
The following ,Ust indicates convenient books which the teacher and student ought to have access to for purposes of collateral reading on subjects directly involved in Constitutional Law. The latest e...
-Select Bibliography Of Constitutional Law
In the following classified list the standard books are collected which may properly be consulted as bearing on the general subject-matter of constitutional law or history. The date of the first publi...
-I. Constitutional History
The standard constitutional histories of England will furnish information as to the principles of government which were familiar to the framers of our state and federal constitutions and the controver...
-II. Formation And Adoption Of Federal And State Constitutions
The Federalist, A Collection of Essays written in Favor of the New Constitution. (1788, latest ed. by Lodge, 1888.) - The essays were published separately as political pamphlets or contributions to pe...
-III. Theory Of Our Government
Wilson, James. Lectures on Law (in his Works, ed. by Bird Wilson, 1804, last ed. by Andrews, 1896). - This is a publication of the first course of law lectures delivered in any American university, bu...
-IV. Description of Actual Government in the United States
Tocqueville, Alexis de. Democracy in America. (1835-1840. Transl. by Reeve; new ed. 1889.) - This extremely interesting account of our government as it appeared to a foreigner when our institutions we...
-V. Technical Works On Constitutional Law
Story, Joseph. Commentaries on the Constitution of the United States. (2 vols., 1833; 4th ed. by Cooley, 5th ed. by Bigelow, 1891.) - This is a fundamental exposition of the federal constitution and i...
-VI. Judicial Decisions
The decisions of the highest courts, especially of the Supreme Court of the United States, furnish very valuable material for the study of the history of the Constitution and the theory of government,...
-VII. Bibliographies
The select bibliography of American government given in Hart's Actual Government (American Citizen Series, 1903, 3d ed., 1908), includes the principal authorities which can be usefully consulted with ...
-Part I. System Of Government. Chapter I. Constitutional Government
1. References Constitutional History: T. P. Taswell-Langmead, English Constitutional History; Hannis Taylor, Origin and Growth of the English Constitution, Introd. and ch. i; John Fiske, Beginnings...
-2. Constitutional Law As Related To Constitutional History
The proposition that governments exist for the benefit of the governed, and not merely for the advantage of those who exercise the powers of government, is not original with the American people. It ha...
-3. Features Of Our System Of Government Of British Origin
Although our system of government has many elements not found in the British system, in the following respects the government and institutions of the people of Great Britain furnish the explanation fo...
-4. Popular Sovereignty; Initiative And Referendum
As the result of what were deemed unwarranted assertions of power, and unjust exactions on the part of the crown and Parliament of Great Britain with reference to the government of the American coloni...
-5. Written And Unwritten Constitutions
The constitution of a government is the body or collection of rules and principles in accordance with which the powers of that government are exercised ; and a constitutional government is one the pow...
-6. Government Under A Written Constitution; Ultimate Sovereignty
The difference between the governmental system of the United States and that of Great Britain, from a constitutional point of view, is not, however, merely that the principles of constitutional law ar...
-7. Unconstitutionality Of Legislative Or Executive Acts
Perhaps the most marked distinction between the governmental system of Great Britain and that of the United States, is that in Great Britain the courts cannot question the validity of an act of Parlia...
-Unconstitutionality Of Legislative Or Executive Acts. Continued
Second, a court will avoid, if possible, setting up its own judgment as against the judgment of a co-ordinate branch of the government as to matters which are by the constitution entrusted to the disc...
-Chapter II. Adoption And Amendment Of Constitutions
8. References J. Story, Constitution, 198-271, 1826-1831; T. M. Cooley, Constitutional Limitations, ch. iii; G. T. Curtis, Constitutional History, chs. i-xv; H. Von Hoist, Constitution...
-9. Colonial Charters; Transition To State Governments
The governments of the colonies, as provided for in their charters, or instructions to governors, or frames of government proceeding from a proprietor or from the royal government, combined some eleme...
-10. Authority On Which State Constitutions Rest
The first state constitutions adopted in the respective colonies being revolutionary in their character had no basis of legal authority, and rested on the general consent of the people evidenced by th...
-11. Independence Of The States
The state constitutions adopted in the colonies did not in general make any provision for union under a federal government. In legal effect each colony, when its relations with the parent government w...
-12. Union Of The States Under The Articles Of Confederation
The first suggestion in the Continental Congress for the formation of the federal government was made by Franklin in 1775; the first official draft of a plan for the confederation was submitted by tha...
-13. Adoption Of The Federal Constitution
In the new constitution, framed by the delegates from the different states, referred to in the preceding paragraph, it was provided that the ratification thereof by conventions of nine of the thirteen...
-14. Methods Of Constitutional Amendment
written constitutions usually contain provisions for their own amendment. In the federal constitution it is provided (Art. V) that amendments shall be proposed by Congress, two-thirds of each house co...
-Chapter III. Nature Of The Federal And State Governments; Their Relations
15. References Nature Of State and Federal Governments: A. B. Hart, Actual Government (Am. Citizen Series), ch. vi; T. M. Cooley, Constitutional Limitations, ch. viii; J. Kent, Commentaries on Amer...
-16. Division Of Powers
The first state constitutions were adopted at a time when there was no established federal government, so that all the powers of government, so far as their exercise was in any way provided for, were ...
-17. Rule Of Construction As To Powers Granted By Federal And State Constitutions
It is apparent from what has been said that the general powers of government are vested in the departments of the state government, while the departments of the federal government have only such power...
-18. Implied Powers Under The Federal Constitution; Liberal Interpretation
Although the federal government is given limited rather than general powers, it cannot be said that it has no powers save those expressed in the federal constitution. In determining the meaning of any...
-19. Supremacy Of Federal Government In Exercise Of Powers Granted
Although, as compared with a state government, the federal government is one of limited and enumerated powers rather than of general powers, it does not follow that it is in any way inferior or subord...
-20. Limitations In The Federal Constitution On State And Federal Power
Not only is the federal constitution in itself a limitation on state power, in so far as the exercise by the federal government of the powers conferred upon it are inconsistent with any exercise by th...
-21. Limitations In The Federal Constitution For Protection Of Personal Rights
When the federal constitution was framed by the constitutional convention, it was assumed, not only that the protection of the personal and property rights of the citizens of each state would remain p...
-22. Bills Of Rights In State And Federal Constitutions
In the first constitutions of the states, adopted just before or immediately after independence, and in nearly all the state constitutions adopted later, either during the Revolutionary period or subs...
-Chapter IV. Relations Of Departments Of Government To Each Other
23. References Distribution of Powers: T. M. Cooley, Constitutional Limitations, ** 87-92; The Federalist, Nos. 47, 48, 51; T. M. Cooley, Constitutional Law, ch. iii; H. C. Black, Constitutional La...
-24. Departments Independent
The division of the powers of government among the three departments, executive, legislative, and judicial, rests on the assumption that while no one of them is in itself sovereign and unlimited in au...
-25. Independence Of The Executive
All executive officers are under obligation to recognize and enforce the laws made by the legislative department within its proper sphere of action; and subordinate executive officers, such as the sec...
-26. The Legislature Cannot Exercise Judicial Power
The independence of the different departments of government is especially emphasized with reference to the functions of the judiciary. It is a fundamental principle of constitutional government that t...
-27. Judges Of Courts Cannot Exercise Executive Functions
The independence of the judiciary, which, as suggested in the last section, has been preserved with peculiar care, involves also the exemption of the judges of the courts from any obligation to perfor...
-28. Impeachment Of Officers Through Legislatures
By the constitution of England, Parliament exercises some restraint on the power of the king by means of the impeachment of the king's ministers, the officers appointed by him to discharge important f...
-29. Legislative Power May Not Be Delegated
The legal principle that an officer or agent cannot delegate to another the powers confided to him, unless authorized to do so, is specially applicable to legislative bodies. Since the power to make l...
-30. Checks And Balances In Our Government
It is often said that our governmental system is one of checks and balances for the purpose of restraining the undue exercise of power by the government or its officers, the theory being that unlimite...
-Part II. Organization Of Government. Chapter V. Legislative Departments
31. References Joseph Story, Constitution, 545-904, 1410-1488, 1963; T. M. Cooley, Constitutional Limitations, ch. vi; J. R. Tucker, Constitution, 186-212; The Federalist,...
-32. Legislative Branches
Under the constitution of England as it has existed for several centuries, Parliament, the legislative department of the government of Great Britain, is composed of two houses, and their concurrence i...
-33. Legislative Representation; Election And Qualification Of Members; Privileges
For the purpose of selecting senators and representatives in the state legislature, the states are generally divided, under the provisions of their constitutions, into senatorial and representative di...
-34. Organization And Methods Of Legislative Business
By the federal constitution it is provided that Congress shall assemble at least once in every year, and, in the absence of statutory provision fixing a different time, the regular session shall comme...
-35. Methods Of Enacting Statutes
It is usually provided in state constitutions, as it is in the federal constitution (Art. I, 7, 2), that a bill proposed in either house, in order to become a law, must be passed by both...
-36. Limitations As To Methods Of Legislation
With reference to the forms and methods of enacting statutes, there are special provisions in many of the state constitutions, such as, for instance, that no special laws shall be passed, except under...
-Chapter VI. Executive Departments
37. References Joseph Story, Constitution, 1430-1449, 1477-1480; James Kent, Commentaries on Am. Law, ch. xiii; J. R. Tucker, Constitution, ch. xii; J. N. Pomeroy, Constitutional Law, ...
-38. Organization Of Executive Departments
In apparent analogy to the theory of the British constitution as it existed at the time of the organization of the state and federal governments, by which the executive functions of government were su...
-39. The State Executive
The chief executive officer of a state, usually called the governor's in all the states chosen by popular election. A lieutenant-governor is usually selected in the same manner. In some of the states ...
-40. Election Of President
The plan provided in the federal constitution for the choice of the chief executive is complicated and in some ways unsatisfactory. The plan prescribed by the constitution is for each state to appoint...
-41. Term And Qualifications Of President; Vacancy In Office
The president and vice-president hold office during the term of four years, and it is required that the president be a natural-born citizen who shall have attained the age of thirty-five years and bee...
-Chapter VII. Judicial Departments
42. References Joseph Story, Constitution, 1599-1636; J. R. Tucker, Constitution, ch. xiii; James Kent, Commnentaries on Am. Law, Lect. xiv; Federalist, No. 78;James Bryce, American Co...
-43. Selection Of Judges
The powers of the judicial departments of the state and federal governments are exercised by courts provided for in their respective constitutions or created by the legislative departments for the pur...
-Part III. Legislation. Chapter VIII. State Legislation
44. References Joseph Story, Commentaries on the Constitution, 531-544; J. W. Burgess, Political Science and Constitutional Law, II, 41-185; James Bryce, American Commonwealth, I, ch. ...
-45. Nature Of Legislative Power
Bearing in mind the difference between the powers of a state government which are general in their scope, and those of the federal government, which has only the enumerated powers conferred upon it by...
-46. General Considerations As To Limitations On Legislation
Before proceeding with a further discussion of state legislation, it will be convenient to explain the nature of the limitations on that power; for it may be stated as a general proposition that the p...
-Chapter IX. The Police Power
47. References T. M. Cooley, Constitutional Limitations, ch. xvi; T. M. Cooley, Constitutional Law, ch. xiii, 4; H. C. Black, Constitutional Law, ch. xiv; J. R. Tucker, Constitution, ch. xiv...
-48. General Scope Of Police Power
The term police power is used to designate that most important function of securing the largest practicable measure of wellbeing to those who live together in the social organization. This is indeed...
-49. Police Power Primarily In States
The police power lies within that great body of powers reserved to the states, and not conferred upon the federal government. In the very nature of things this ought to be so. If state governments wer...
-Chapter X. Punishment Of Crime
50. References In General: E. McClain, Criminal Law, ch. iii; J. P. Bishop, Criminal Law, chs. ix, xii; J. I. C. Hare, Constitutional Law, Lects. liii, liii; J. N. Pomeroy, Constitutional Law, &sec...
-51. State Power As To Crimes In General
The authority to declare what acts shall constitute crimes, and to provide for the trial and punishment thereof, is a branch of the general police power primarily belonging to the states. (See above, ...
-52. Federal Jurisdiction As To Crimes
Congress has authority to provide for the punishment of four classes of crimes: (1) those specified in the federal constitution or which Congress is therein given express power to punish; (2) those co...
-53. The Crime Of Treason
Congress is expressly given power to declare the punishment of treason against the United States (Art. Ill, 3), and in the same section of the constitution the crime of treason against the Unit...
-54. The Crime Of Counterfeiting
Congress may provide for the punishment of counterfeiting the securities and current coin of the United States (Const. Art. I, 8, 6). Such an act is not only injurious to the public i...
-55. Piracies; Crimes On The High Seas; Offences Against The Law Of Nations
The specific power given to Congress To define and punish piracies and felonies committed on the high seas, and offences against the law of nations (Const. Art. I, 8, 10) brings with...
-56. Crimes In Places Within Exclusive Federal Jurisdiction
As Congress is given exclusive power of legislation over the District of Columbia and places purchased by the consent of the legislature of the state in which the same shall be, for the erection of ...
-57. Crimes Within The Territories
So far as territory which is not incorporated into or admitted as a state is concerned, Congress has power to provide for the punishment of crime under the constitutional authority to make needful ru...
-58. Implied Power To Define And Punish Crimes
As an incident to the exercise of any of the powers expressly given to the federal government, Congress may provide for the punishment as crimes of acts calculated to interfere with such exercise of i...
-59. Ex Post Facto Laws; Bills Of Attainder
By the federal constitution Congress is expressly prohibited from passing any bill of attainder or ex post facto law (Art. I, 9, 3) and the same prohibition is imposed on the states (Art...
-Chapter XI. Public Property; The Eminent Domain
60. References T. M. Cooley, Constitutional Limitations, ch. xv; T. M. Cooley, Constitutional Law, ch. xvi, 3; H. C. Black, Constitutional Law, ch. xvi; J. I. C. Hare, Constitutional Law, chs...
-61. Rights Of The Government To Acquire And Own Property
A state government or the federal government may, for a variety of purposes, be the owner of property. Although neither has all the attributes of complete sovereignty, yet each is a public corporation...
-62. The Power Of Eminent Domain
A necessary incident to the power of government is the right, in the interest of the public, to control private property, even without the consent of the owner; and this is exercised within the scope ...
-63. Constitutional Limitations On Eminent Domain
Coming now to a consideration of the specific constitutional provisions relating to the exercise of the power of eminent domain, two lines of analysis must be considered, the one relating to the purpo...
-64. What Is A Public Purpose
As has already been suggested, although there is no direct prohibition of the taking by state or federal authorities of private property for other than public use, such a taking would be contrary to t...
-65. Kind Of Property Taken; Extent Of The Right Acquired
The illustrations used in the preceding paragraph have all related to the taking of land; but there is nothing in the constitutional provisions on the subject which would limit the power of eminent do...
-66. Compensation For Property Taken By Eminent Domain
No doubt it is in accordance with ordinary conceptions of right and justice that if the property of an individual be appropriated by the state for the benefit of the general public, compensation shoul...
-67. Method Of Procedure In Eminent Domain
It is for the legislature to determine, in its discretion, the propriety of exercising the power of eminent domain in cases in which it may constitutionally be exercised; that is to say, the legislatu...
-Chapter XII. Taxation
68. References In General: T. M. Cooley, Constitutional Limitations, ch. xiv; J. Story, Constitution, ch. xiv; T. M. Cooley, Constitutional Law, ch. iv, i; T. M. Cooley, Taxation; H. C. Blac...
-69. General Powers Of Taxation
One of the powers inherent in government is that of raising revenue for the purpose of carrying on its legitimate functions. As the functions of the federal government are limited, so the purposes for...
-70. State Power To Levy Taxes
The purposes for which the power of state taxation may be exercised are as limitless in their variety as the special objects for which laws may be passed. Nor is the exercise of such power restricted ...
-71. What Is A Public Purpose
The general scope of the purposes which are public, and for which, therefore, the power of taxation may be exercised, can best be illustrated by stating some of the purposes which have been held not t...
-72. What Property May Be Taxed
The subjects of taxation are as various as the purposes for which taxes may be levied, and the largest discretion is allowed to the legislative power in determining the basis on which taxes shall be i...
-73. Taxation Of Government Officers Or Agencies
It results from the peculiarities of our dual government, involving the co-existence within the same territorial limits of federal and state authority, that neither government can tax the property, th...
-74. Due Process Of Law As To Taxation; Rule Of Uniformity
While the states may exercise a large discretion as to the purposes for which taxes shall be imposed, the property from which they shall be derived, and the methods in which they shall be levied and e...
-75. Specific Limitations On State Power To Tax
Aside from the general limitations resulting from the requirements of due process of law and equal protection of the laws, the federal constitution contains some specific limitations on the state taxi...
-76. Methods Of State Taxation
The requirement of due process of law does not necessitate judicial proceedings to determine the amount of tax to be paid by each person and to enforce the tax as against his property. (See Kentucky R...
-77. Federal Taxation
As the federal government is one of enumerated powers rather than of general powers, we find the power to levy taxes expressly conferred upon Congress in the federal constitution. Perhaps the power to...
-78. Duties, Imposts, And Excises
As a matter of practical expediency; the power of federal taxation for the raising of public revenue is exercised almost entirely by the levy and collection of duties, imposts, and excises. These are ...
-79. Direct Taxation By The Federal Government; Income Tax
While the revenues of the United States have usually been derived almost entirely from duties, imposts, and excises, as to which the rule of uniformity is applicable, the federal government is not lim...
-Chapter XIII. Financial Powers Other Than Taxation
80. References J.Story, Constitution, 1054, 1055, 1116-1121, 1357-1372; T. M. Cooley, Constitutional Law (3d ed.), 64, 90-93; H. C. Black, Constitutional Law (2d ed.), 183-185, 306, 30...
-81. Financial Powers Of States
It is within the general scope of legislative power to provide for the borrowing of money for the public use, which is usually done either by the issuance of bonds bearing interest, which may be sold ...
-82. Power Of Federal Government As To Money
Congress is expressly given by the constitution power to borrow money on the credit of the United States (Art. I, 8, 2), and this it may do and frequently has done by the sale of bonds b...
-Chapter XIV. Regulation Of Commerce
83. References In General: J. Story, Constitution, 259-263, 1054-1101; T. M. Cooley, Constitutional Limitations, ** 584-594; T. M. Cooley, Constitutional Law, ch. iv, 2; H. C. B...
-84. State Power Over Commerce In General
The general power to regulate commerce is in strict analysis a part of the police power, and, as has already been indicated in the discussion of that subject (see above, 48), the states may reg...
-85. Necessity For Federal Regulation Of Commerce
Under the Articles of Confederation, Congress had no power to levy taxes or to regulate commerce; and, as a consequence, it could not adopt navigation laws, impose duties on imports, or prevent confli...
-86. Provisions Of The Federal Constitution On Commerce
The principal commerce clause of the federal constitution, (Art. I, 8, 3), is as follows: The Congress shall have power to regulate commerce with foreign nations, and among the several ...
-87. Concurrent State Power Over Commerce
Even as to commerce belonging to any of the three classes specified by the federal constitution, the power of state regulation is not necessarily denied. It is to be noticed that Congress is not expre...
-88. What Is A Regulation Of Commerce
Evidently a careful distinction must be made between state provisions which incidentally affect commerce and those which amount to a regulation of commerce, and this distinction depends on the legal d...
-89. Freedom Of Commercial Intercourse Protected
As has already been said, the power of Congress to regulate foreign and interstate commerce is not in terms exclusive, nor is it construed as excluding state regulation which incidentally affects such...
-90. State Restrictions Invalid; Further Illustrations
The principles stated in the preceding sections of this chapter can be rendered more intelligible by a brief statement of some of the important questions which have been decided under them. Soon after...
-91. Sale Of Goods Brought Into The State
It is evident that commerce would not be substantially free from state interference if the state could impose a license tax on the privilege of selling such goods after they had been brought in, for s...
-92. State Taxation Of Commerce
The general power of the state to tax all property within its jurisdiction extends to property which, although it has been brought into the state as a subject of foreign or interstate commerce, is own...
-93. Federal Regulations Of Commerce
In the exercise of its power to regulate interstate and foreign commerce, Congress has enacted statutes which need not be here discussed in detail. It has in a variety of ways regulated the commerce o...
-Chapter XV. Corporations: Creation And Regulation
94. References James Kent, Commentaries, Lect. xxxiii; J. Story, Constitution, 1259-1271, 1392-1395; T. M. Cooley, Constitutional Limitations, ch. vii and ** 276-284, 575-582; T. M. Co...
-95. Classes Of Corporations
A corporation is a collection of individuals authorized by the government to enjoy the privilege of acting as one body, and of being considered as an artificial person, in the owning of property and t...
-96. Powers Of States As To Private Corporations
In general, the power to create and regulate private corporations is in the state governments and not in the federal government. It is a branch of the general police power, that is, the power to legis...
-97. Public Corporations Classified
Powers and privileges are given by the state to public corporations, not for the individual benefit of the persons who are members of them, but for their collective benefit as a part of the people of ...
-98. Power Of The Federal Government To Create Corporations
As the federal government has only the powers which are expressly or by implication conferred upon it in the constitution, and as the constitution does not expressly provide for the creation of corpor...
-Chapter XVI. Other Enumerated Powers Of Congress
99. References Naturalization: J. Story, Constitution, 1102-1104; J. R. Tucker, Constitution, 269; J. Kent, Commentaries, *423; T. M. Cooley, Constitutional Law, ch. iv, ...
-100. Naturalization
In a subsequent chapter the subject of citizenship will be considered (see below, ch. xxxiv), and it will there appear that persons may be citizens of the United States either by birth or by naturaliz...
-101. Bankruptcy
Congress is given the express power to establish uniform laws on the subject of bankruptcy throughout the United States (Const. Art. I, 8, 4). A bankruptcy law is one by which provisio...
-102. Copyrights And Patents
To promote the progress of science and useful arts, Congress is authorized to secure for limited times to authors and inventors the exclusive right to their respective writings and discoveries (Co...
-103. Weights And Measures
In connection with the power to coin money and regulate the value thereof, Congress is expressly authorized to fix the standard of weights and measures (Const. Art. I, 8, 5). But this po...
-104. Post-Offices And Post-Roads
The power To establish post-offices and post-roads (Const. Art. I, 8, 7) has been fully exercised by Congress in creating a post-office department of the federal government, under whic...
-105. Slavery And Peonage
The federal constitution as originally adopted recognized the existence of human slavery in providing that The migration or importation of such persons as any of the states now existing shall think ...
-106. Government Of The District Of Columbia
Congress is given power To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may by cession of particular states and the acceptance of Cong...
-107. Legislation As To Places Ceded To The Federal Government
By the constitutional provision referred to in the preceding section, Congress is authorized also to exercise exclusive legislation over all places purchased by the consent of the legislature of the ...
-Chapter XVII. War Powers
108. References J. Story, Constitution, chs. xxi, xxii; T. M. Cooley, Constitutional Law, ch. iv, 12; H. C. Black, Constitutional Law (2d ed.), pp. 220-224; J. I. C. Hare, Constitutional Law...
-109. State Power As To War
Among the express limitations on the powers of the state which were incorporated into the federal constitution in 1787, were prohibitions against entering into any treaty, alliance, or confederation, ...
-110. State Militia
The right of the state to maintain an organized militia is, however, expressly recognized by the federal constitution (Amend. II). The militia of the state consists of those persons who under the law ...
-111. Federal Power As To State Militia
Congress is authorized To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions, and To provide for organizing, arming, and disciplinin...
-112. The Army And Navy
Congress is given express authority To raise and support armies with the provision that no appropriation of money to that use shall be for a longer term than two years and To provide and mainta...
-113. Power To Declare War
Congress is expressly given the power to declare war (Const. Art. I, 8, 11), and this grant of power is exclusive. The executive department, although it is charged with the foreign relat...
-114. Military Law
The express power given to Congress To make rules for the government and regulation of the land and naval forces (Const. Art. I, 8, 14) has been exercised by the adoption of a code of ...
-115. Subordination Of The Military To The CIVIL Authority
While the military power must necessarily be absolute for the time being, and beyond the control of the civil authorities so far as it is lawfully exercised, yet it is regarded as exceptional and, so ...
-Chapter XVIII. Implied Powers Of The Federal Government
116. References J. Story, Constitution, 433-435, 1236-1294,1329, 1330; T. M. Cooley, Constitutional Law, ch. iv, 15; H. C. Black, Constitutional Law, 105, 106; McCu...
-117. Implied Powers Expressly Given
As has already been indicated (see above, 18), the federal government, although a government of limited and delegated rather than general powers, has such implied powers as may be necessary to ...
-118. Restrictions On The Exercise Of Power By Congress
What has been said in a previous section (above, 20) as to express and implied restrictions on the powers of the several departments of the federal and state governments, is especially applicab...
-Part IV. Executive Power. Chapter XIX. General Nature Of Executive Functions
119. References J. I. C. Hare, Constitutional Law, lect. x; J. R. Tucker, Constitution of the United States, 98, 99; The Federalist, Nos. 69-73; James Bryce, American Commonwealth, chs...
-120. Historical View As To The Executive
Among a primitive people, not yet united under any strong central government, and recognizing the right of local self-government as existing in small divisions or bodies, limited and temporary authori...
-Chapter XX. Administrative Functions; Appointing And Pardoning Power
121. References Administration and Enforcement: A. V. Dicey, Law of the Constitution, chs. v, vi; Alexis De Tocqueville, Democracy in America, I, ch. v; J. I. C. Hare, Constitutional Law, 138-145; ...
-122. Administration And Enforcement Of Law
The administrative power of the federal or a state government is necessarily vested in the executive department. Our system of government does not, however, recognize administrative law as superior to...
-123. Appointment Of Officers
In many of the states the principal executive officers subordinate in rank to the chief executive are chosen by popular election. But many other subordinate officers are provided for, usually appointe...
-124. Pardons
The legislative department, in the exercise of its discretion, defines crimes and provides for their punishment. (See above, ch. x.) The courts determine whether a person charged with violation of the...
-Chapter XXI. Legislative Functions Of The Executive; Veto Power
125. References J. Story, Constitution, 881-893, 1560-1564; J. I. C. Hare, Constitutional Law, 211-213; J. R. Tucker, Constitution, 213, 214, 360; J. N. Pomeroy, Constitut...
-126. Executive Approval Or Veto
It is provided in all the state constitutions except two, as it is in the federal constitution (Art. I, 7, 2), that bills which have passed both branches of Congress or of a state legisl...
-127. Exercise Of Executive Discretion Toward Legislation
In the approval or veto of a bill presented, the executive is not limited to the mere determination of whether the bill, if it becomes a statute, will be valid or constitutional. The executive may tak...
-128. Executive Recommendations As To Legislation
The participation of the chief executive, whether president or governor, in matters of legislation, is not limited, however, to the exercise of the veto power. The president is directed to give to Con...
-Chapter XXII. Military Powers
129. References J. Story, Constitution, 1490-1492; J. R. Tucker, Constitution, 363; J. N. Pomeroy, Constitutional Law, 703-714; The Federalist, No. 74; A. B. Hart, ...
-130. President Or State Executive As Commander-In-Chief
Perhaps no function of the president or chief state executive is more significant as indicating his independent and exalted position than that of being the commander-in-chief of the army and navy of t...
-131. Protection Of The States Against Invasion Or Domestic Violence
With reference to the protection of the state governments and interference in state affairs, the government of the United States has no other authority than to guarantee to every state in this Union ...
-Chapter XXIII. Diplomatic Relations; Treaty-Making Power
132. References J. Story, Constitution, 1505-1523, 1565-1568; J. R. Tucker, Constitution, 353-356, 361; J. N. Pomeroy, Constitutional Lazu, 669-681; The Feder...
-133. Executive Authority In Diplomacy
The states can have no relations whatever with foreign governments (Const. Art. I, 10, 1). Toward foreign powers, the United States collectively constitute one single power, represented ...
-134. Executive Authority As To Aliens
The power to determine the relations between this government and other governments extends also to the determination of the rights and privileges which shall be accorded to the subjects of foreign gov...
-135. Treaty Power
A treaty is a compact between two independent governments, determining rights or privileges between them as sovereigns; or between each and the subjects of the other; or between the subjects of one an...
-136. Treaties Are A Part Of The Law Of The Land
Being compacts between governments, treaties are not usually regarded as a part of the internal or municipal law of either of the governments which are the parties thereto. But it is expressly provide...
-Part V. The Judiciary. Chapter XXIV. General Nature Of Judicial Power
137. References J. Story, Constitution, 1573-1579; T. M. Cooley, Constitutional Limitations, ** 397-414; J. I. C. Hare, Constitutional Law, lect. viii; J. R. Tucker, Constitution, ch.x...
-138. The Judiciary In General
In those countries in which Anglo-Saxon institutions prevail, the independence of the judiciary and the importance of its functions are very fully recognized, and under our constitutional system they ...
-139. The Judiciary Of The States
The general function of deciding legal controversies in cases properly presented is one which pertains to and is exercised by the courts established in each state. It is to be borne in mind that the g...
-140. The Law Administered In The State Courts
It must not be understood that because the courts of a state constitute the judicial department of the state government they cannot take cognizance of any other law than that found in the constitution...
-Chapter XXV. Jurisdiction Of The Federal Judiciary
141. References J. Story, Constitution, 1573-1579; J. I. C. Hare, Constitutional Law, lects. xlv-xlix; J. R. Tucker, Constitution, ch. xiii; James Bryce, American Commonwealth, ch. xxi...
-142. Necessity For Federal Courts
It is apparent from what has been said in the preceding chapter relating to the general jurisdiction of the state courts, that it would have been possible to provide for a federal government without a...
-143. General Jurisdiction Of The Federal Courts
The propriety of providing a system of federal courts in which cases of the various classes described in the preceding section might be tried, is recognized in the federal constitution, and a judicial...
-Chapter XXVI. Cases Of Federal Jurisdiction
144. References In General: J. Story, Constitution, 1637-1700; T. M. Cooley, Constitutional Limitations,** 11-15; J. I. C. Hare, Constitutional Law, lects. lv, lvi; J. N. Pomeroy, Cons...
-145. Constitutional Enumeration
Bearing in mind the statement already made that no federal court can have jurisdiction of any case unless it is one of the classes of cases enumerated in the federal constitution as those to which the...
-146. Cases Arising Under The Federal Constitution, Laws, And Treaties
The first and most extensive class of cases described as of federal cognizance, are those in law and equity arising under this constitution, the laws of the United States, and treaties made, or which...
-147. Cases Affecting Ambassadors, Etc
The second class of cases of federal cognizance embraces those affecting ambassadors, other public ministers, and consuls. These officers of foreign governments, while within the limits of the Unite...
-148. Admiralty Cases
The extension of the federal judicial power to all cases of admiralty and maritime jurisdiction can better be understood if it is stated that in England admiralty courts have jurisdiction of matters...
-149. Cases To Which The United States Is A Party
The provision giving to the federal courts power as to controversies to which the United States shall be a party simply authorizes Congress to provide for trial in the federal courts of suits brough...
-150. Controversies Between States
The states are independent of each other, but, since they are not capable of negotiating with each other, or having foreign relations with reference to each other, it is provided that controversies be...
-151. Controversies Between A State And Citizens Of Another State
Where a state has a claim of any kind against a citizen of another state, it cannot usually prosecute that claim in its own courts, because its courts cannot get jurisdiction of a nonresident except b...
-152. Controversies Between Citizens Of Different States
The jurisdiction of suits in which the party or parties on one side are citizens of a different state from that of the party or parties on the other, furnishes the larger part of the civil business in...
-153. Controversies Under Land Grants Of Different States
The provision that the judicial power of the federal government extends to controversies between citizens of the same state claiming lands under grants of different states has not given rise to any di...
-154. Controversies Between A State And Foreign States, Or Between Citizens And Aliens
The last of these enumerations of grounds for jurisdiction of the federal courts includes several possible classes of cases. It is difficult to conceive of a controversy between a state and a foreign ...
-Chapter XXVII. The Exercise Of Federal Judicial Power
155. References J. Story, Constitution, 1731-1747, 1760-1773; J. I. C. Hare, Constitutional Law, lect. 1; T. M. Cooley, Constitutional Law (3d ed.), 139-152; H. C. Black, Constitutiona...
-156. Jurisdiction By Original Suit
The simplest and most natural method of providing for the exercise of federal jurisdiction as to classes of cases which are by the constitution declared to be within the scope of the federal judicial ...
-157. Jurisdiction By Removal
Inasmuch as the jurisdiction of the federal courts in the classes of cases which may be within their jurisdiction is not exclusive, as already explained, unless expressly so declared, suits may be pro...
-158. Jurisdiction By Appeal From State To Federal Courts
The jurisdiction of the federal courts in the classes of cases placed within their jurisdiction by the federal constitution may be exercised, however, not only by trial in a federal court but also by ...
-Chapter XXVIII. Apportionment Of Federal Jurisdiction
159. References J. Story, Constitution, 1636, 1701-1731; J. I. C. Hare, Constitutional Law, lects. liii, liv; James Kent, Commentaries, lects. xv, xvii; T. M. Cooley, Constitutional La...
-160. The Federal Judicial System
In pursuance of the power given to Congress under Article III, 1, of the constitution, to ordain and establish courts inferior to the Supreme Court, in which, together with the Supreme Court, w...
-161. Federal District Courts
The class of federal courts of lowest grade is composed of the district courts. The United States is divided into districts, no one of them embracing more than one state, although many of the states a...
-162. Federal Circuit Courts
In one or more places in each district is held a circuit court of the United States, presided over by any one of the following federal judges, to wit, the justice of the Supreme Court assigned to the ...
-163. Federal Circuit Courts Of Appeals
The district courts and circuit courts, as above described, exercise only original and not appellate jurisdiction. The courts of these two classes, together with the Supreme* Court, constituted the ju...
-164. The Federal Supreme Court
Under the statutory provisions now in force, the Supreme Court consists of a chief justice and eight associate justices, and sits only at the national capital. By the constitution (Art. Ill, 2,...
-165. Other Courts Created By Congress
The courts which have been described in this chapter, the Supreme Court being one of them, constitute all the courts which exercise the judicial power of the federal government, as specifically prescr...
-166. United States Commissioners And Magistrates
The circuit courts may appoint commissioners, often termed United States Commissioners, who are authorized to exercise various powers conferred upon them, such as the taking of affidavits, the issuanc...
-Chapter XXIX. The Law Administered In The Federal Courts
167. References J. Story, Constitution, 1748-1759; J. I. C. Hare, Constitutional Law, lect. li; James Kent, Commentaries, lect. xvi; James Bryce, American Commonwealth, ch. xxiii; T. M...
-168. Distinction Between Law And Equity
In actions at law the federal courts follow in general the procedure provided for their own tribunals by the states in which they sit; but in equity cases the federal courts follow their own rules of ...
-169. The Common Law And The Law Of The States
In cases arising under the constitution, laws, or treaties of the United States, and depending for their decision on the construction thereof, the federal courts follow their own judgment, guided, of ...
-170. Conflicting Jurisdiction Of Federal And State Courts
It seldom occurs that there can be any conflict of jurisdiction between a federal and a state court. Any apparent conflict is usually determined by the application of the principle of comity (see abov...
-171. Authority Of The Judiciary To Pass Upon The Constitutionality Of Statutes
In discussing the relations of the departments of government to each other, it has already been indicated that, in a case properly coming before a court, the court has the power to determine the const...
-Part VI. The States And Territories. Chapter XXX. Relations Of Federal And State Governments
172. References J. Story, Constitution, 1813-1825; J. R. Tucker, Constitution, 310-319; T. M. Cooley, Constitutional Law, ch. xi; H. C. Black, Constitutional Law, ch. x; T...
-173. Relations Of States And Federal Government Under The Constitution
In discussing the historical development of our constitutional system, it has already been pointed out that the state governments came into existence in practically their present form before the feder...
-174. Guarantee Of Republican Government In The States
The continuing obligation of the United States with reference to the existence of the states is twofold: The constitution provides (Art. IV, 4), for (1) a republican form of government in each ...
-175. Guarantee Against Invasion Or Domestic Violence
The provision of the federal constitution last above referred to, so far as it relates to the protection of the state governments, involves protection, not only against invasion, but also against dome...
-176. Reconstruction Of States
There has been no occasion for the active exercise by Congress of the power to guarantee a republican form of government in any state save in those cases where the existing state governments were over...
-Chapter XXXI. Admission Of States
177. References J. Story, Constitution, 1314-1321; J. A. Jameson, Constitutional Conventions, ch. vii; J. R. Tucker, Constitution, 295-301; T. M. Cooley, Constitutional La...
-178. Ratification By Original States
As the federal constitution was to go into operation when ratified by conventions in nine of the original thirteen states (Const. Art. VII), it evidently was contemplated that as the federal governmen...
-179. Admission Of New States By Congress
But at the time of the formation of the federal government, there were large areas of territory within its jurisdiction derived by cessions from the various states and from Great Britain under the tre...
-180. Change Of State Boundaries
After the admission of a state with specified boundaries, such boundaries cannot be changed by action of the state alone, for by the federal constitution (Art. IV, 3, 1) it is provided t...
-181. Reorganization Of Seceded States
From what has been said in the last preceding chapter with reference to the condition of the states which seceded during the war of the Rebellion, it is evident that Congress, in providing for the reo...
-182. Steps For Admission Of States
Different methods for the admission of new states have been pursued by Congress in different cases. Sometimes the proposed state has organized itself by the adoption of a constitution and has asked ad...
-183. Effect Of Admission Of States
Congress has authority to organize territories and provide for local governments therein, analogous in some respects to the governments of the states. Frequently, but not uniformly, territories thus c...
-Chapter XXXII. Territorial Governments
184. References J. Story, Constitution, 1322-1330; J. N. Pomeroy, Constitutional Law, 483-499; T. M. Cooley, Constitutional Law, ch. viii; H. C. Black, Constitutional Law ...
-185. Territorial Power Of Congress
The territories of the United States not included within the limits of any state may be governed directly by Congress under authority to make all needful rules and regulations respecting the territor...
-186. The Constitution In The Territories
Serious questions have recently arisen as to whether all the provisions of the federal constitution are applicable in territory which is under the jurisdiction of the United States but outside the lim...
-Chapter XXXIII. Relation Of The States To Each Other
187. References J. Story, Constitution, 1302-1313; J. R. Tucker, Constitution,^ 307-309; T. M. Cooley, Constitutional Limitations, * 397; T. M. Cooley, Constitutional Law, ch. x; H. C....
-188. States Independent; Inter-State Comity
As a general proposition it may be said that the states are independent of each other, and so far as they can have any relations to each other or to the citizens of another state those relations are d...
-189. Extradition Of Criminals
The federal constitution does provide, however, that A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall on demand of ...
-190. Privileges And Immunities Of State Citizenship
Even in the absence of express treaty comity between countries foreign to each other usually involves during time of peace the privilege of the subjects of one country to come into the territory of th...
-191. Faith And Credit To Acts, Records, And Judgments Of The States
By comity between foreign governments judgments of courts in one country are usually treated as valid in another country; that is to say, if in an action brought in the courts of one country having ju...
-Part VII. Relations Of The Individual To The Government. Chapter XXXIV. Citizenship
192. References J. Story, Constitution (Cooley's ed.), Suppl., 1930-1937; J. R. Tucker, Constitution, 174, 389; J. I. C. Hare, Constitutional Law, 515-522; J. N. Pomeroy, ...
-193. Citizenship In The States
Prior to the adoption of the Fourteenth Amendment to the federal constitution there was no uniform rule as to state citizenship. (See above, 100.) The sole power of providing by uniform law for...
-194. Citizenship In The United States By Birth
One becomes a citizen of the United States either by birth or naturalization. By the simple language of the Fourteenth Amendment All persons born in the United States and subject to the jurisdiction ...
-195. Citizenship In The United States By Naturalization
It lies within the power of the United States government, either by treaty with a foreign power or by act of Congress, to confer citizenship on classes of persons without regard to birth or naturaliza...
-196. Privileges Pertaining To United States Citizenship
Political privileges are not necessarily incident to citizenship (above, 193), but citizenship is important with reference to the protection to which the citizen is entitled while outside of th...
-Chapter XXXV. Political Privileges
197. References J. Story, Constitution, 577-586, and (Cooley's ed.) 1969-1974; T. M. Cooley, Constitutional Limitations, ch. xvii; J. I. C. Hare, Constitutional Law, 522-...
-198. Federal And State Privileges
The right to participate in the affairs of government and the conditions under which such right may be exercised are primarily within the control of the respective states; but in the territory of the ...
-199. The Fifteenth Amendment
After the full rights of citizenship had been by Amendment XIV conferred upon negroes who came within the description of citizenship enunciated in that amendment, it was thought desirable that such pe...
-200. Suffrage And Elections
From what has already been said in this chapter, it is apparent that the elective franchise is not a right but a privilege, dependent in the states on the constitution and laws of each state, subject ...
-201. The Holding Of Office
The constitution of the United States prescribes the qualifications for president, senators, and representatives (Art. I, 2, 2, 3, 3; Art. II, 1, 4) and the q...
-202. Jury Service
The privilege of serving on juries, when selected for the purpose according to the provisions of law, is sometimes spoken of as a political privilege analogous to that of holding office, and the metho...
-Part VIII. CIVIL Rights. Chapter XXXVI. Guaranties To The Individual
203. References J. R. Tucker, Constitution, ch. i; J. W. Burgess, Political Science, I, 174-232; F. Lieber, Civil Liberty and Self-Government, chs. i-iii; W. W. Willoughby, Nature of the State, ...
-204. Natural Rights Protected
Organized government has for its object the protection of the individual against undue interference on the part of others with his enjoyment of life and the beneficial employment of his faculties. The...
-205. Classification Of Individual Rights Specially Guaranteed And Protected
The guaranties found in the state and federal constitutions which are intended for the protection of the individual in his person, his liberty, and his property have not been the result of any theoriz...
-Chapter XXXVII. Religious Liberty
206. References J. Story, Constitution, 1843-1849, 1870-1879; T. M. Cooley, Constitutional Limitations, ch. xiii; J. R. Tucker, Constitution, 326; J. Bryce, American ...
-207. Religious Equality
With reference to religious liberty, it is provided in Amendment I, that Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof, and in the con...
-208. Taxation For The Support Of Religion
Complete religious liberty is not, however, secured by exemption from religious tests as a qualification for voting and holding office, nor by guaranteeing toleration and freedom from restraint as to ...
-209. Sunday Laws; Blasphemy, Etc
In the promotion of the general public welfare, the lawmaking power may properly take into account the fact that the great majority of the people recognize as desirable the setting apart of the first ...
-210. Religious Belief No Defence For Violating Law
When in the exercise of its legitimate authority and for purposes recognized as proper to be considered and promoted, the legislative power has prohibited any act or line of conduct, the conscientious...
-Chapter XXXVIII. Freedom Of Speech And The Press
211. References J. Story, Constitution, 1880-1892; T. M. Cooley, Constitutional Limitations, ch. xii; j. R. Tucker, Constitution, 669, 670; T. M. Cooley, Constitutional Law, ch. xiv, &...
-212. Constitutional Provisions As To Expression Of Opinion
The state constitutions usually contain guaranties of freedom of speech and the press similar to those found in the federal constitution, that Congress shall make no law . . . abridging the freedom o...
-213. Slander And Libel
One may do injury to another in his property rights, in his feelings, and in his reputation, by making to others false and defamatory statements about him. Such statements made by word of mouth, and n...
-214. Libels On Government And Injurious Publications
In England publications tending to bring the government into contempt, or to impair its authority, were at one time punishable criminally; but the theory of our system of government is that it exists ...
-215. Defamation Of Individuals
The security of individuals against defamation calculated to injure them in their property rights, or in their feelings or their reputation, is a proper matter for consideration by the law; and it is ...
-216. Privileged Publications
It has been said in the preceding section that in a criminal prosecution for libel the defendant may show the truth as a defence if the publication was with good motives and for justifiable ends. Such...
-Chapter XXXIX. Rights Of Assembly And Petition
217. References J. Story, Constitution, 1893-1895; T. M. Cooley, Constitutional Limitations, *349; J. R. Tucker, Constitution, 671; F. Lieber, Civil Liberty and Self-Government, ch. ...
-218. Peaceable Assembly
It may be true that the prohibition in the federal constitution as to abridgment of the right of the people peaceably to assemble and to petition the government for a redress of grievances (Amend. I...
-219. Right To Petition
So far as the clause of the federal constitution, last above quoted, relates to the right of petition, it evidently contemplates a petition by many persons addressed to some public officer or body. ...
-Chapter XL. Right To Bear Arms; Quartering Of Soldiers
220. References J. Story, Constitution, 1896-1900; T. M. Cooley, Constitutional Limitations, * 350; J. R. Tucker, Constitution, 671, 672; J. N. Pomeroy, Constitutional Law, &...
-221. Keeping And Bearing Arms
The provision of the federal constitution that A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed (Amend. ...
-222. The Quartering Of Troops
One of the grievances of the colonies as indicated in the Declaration of Independence was that the English government kept among the people in times of peace standing armies without the consent of the...
-Chapter XLI. Searches And Seizures
223. References Joseph Story, Constitution, 1901, 1902; T. M. Cooley, Constitutional Limitations, * 299-308; J. R. Tucker, Constitution, 672; F. Lieber, Civil Liberty and Self-...
-224. Search And Seizure Without Warrant
The fundamental principles of civil liberty and the enjoyment of property forbid that one's person or premises be searched or that his person or property be seized without lawful authority; and withou...
-225. Search Warrants
Regular proceedings are recognized in all the states in pursuance of which the officers of the law may be authorized by a warrant duly issued, to enter private premises and search for property or the ...
-Chapter XLII. Guaranties As To Prosecutions For Crime
226. References J. Story, Constitution, 1778-1794; T. M. Cooley, Constitutional Limitations, ** 309-348; J. N. Pomeroy, Constitutional Law, 242-244; F. Lieber, Civil ...
-227. General Guaranties As To Prosecutions
Restrictions on the state and federal government in the exercise of the power to define and provide for the punishment of crime have already been briefly discussed (see above, ch. x) and it has been s...
-228. Due Process Of Law
The most important general limitation in both state and federal constitutions, applicable in criminal prosecutions as well as in civil suits, is the guaranty found in Amendment V, and in similar provi...
-229. Presentment Or Indictment
The first guaranty in Amendment V to the federal constitution is, No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, ex...
-230. Capital Or Other-Wise Infamous Crimes
In states where by constitutional provision indictment is still essential, it is usually required in cases of treason and felony; but Amendment V uses somewhat different language and specifies the cri...
-231. Courts-Martial
The exception found in Amendment V, with reference to cases arising in the land and naval forces or in the militia, applies to proceedings in courts-martial for violation of the military law. (See abo...
-232. Twice In Jeopardy
The clause found in Amendment V of the federal constitution and in the constitutions of the various states, that no person shall be subject for the same offence to be twice put in jeopardy of life or ...
-233. Self-Crimination
The provision in Amendment V that no person shall be compelled in any criminal case to be a witness against himself, which is found also in many, though not all, of the state constitutions, is an anno...
-234. Speedy And Public Trial
State constitutions usually contain a provision similar to that found in the federal constitution, that In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial (...
-235. Trial By Jury; Venue
It is further provided (Amend. VI) that the trial in criminal prosecutions is to be by an impartial jury of the state and district wherein the crime shall have been committed, which district shall ha...
-236. Right To Be Informed Of The Accusation
It is of the very essence of due process of law in criminal cases that the accused be informed of the nature and cause of the accusation, as required by Amendment VI, and by similar provisions in st...
-237. Right To Be Confronted With Witnesses
The requirement of Amendment VI that the accused in a criminal prosecution must be confronted with the witnesses against him is simply a statement of a rule of common-law procedure in prosecutions for...
-238. Compulsory Process For Witnesses
By Amendment VI and similar provisions in the state constitutions the accused has the privilege of compulsory process for obtaining witnesses in his favor, that is, to have the machinery of the law em...
-239. Right To Assistance Of Counsel
The guaranty of the right of the accused to the assistance of counsel in making his defence, found in Amendment VI, and in the state constitutions, is intended as an assurance against the recognition ...
-240. Excessive Bail; Cruel And Unusual Punishments
One of the beneficent rules of criminal procedure in courts of common law is that a person accused of and arrested for a crime but not yet proven guilty in a judicial trial shall not, save in cases of...
-241. Writ Of Habeas Corpus
A legal remedy against unlawful deprivation of personal liberty which is peculiarly applicable as to criminal prosecutions, although it is not expressly limited to such cases, is the writ of habeas co...
-242. Suspension Of Habeas Corpus
To protect the privilege of resorting in a proper case to proceedings by habeas corpus the federal constitution as well as the constitutions of the various states contain provisions regulating the sus...
-243. Waiver Of Constitutional Guaranties
While the protection afforded by the guaranties found in the federal or a state constitution is often spoken of as the inalienable right of one accused of crime, it does not follow that such guarantie...
-Chapter XLIII. Trial By Jury
244. References J. Story, Constitution, 1768-1772; J. R. Tucker, Constitution, 334; T. M. Cooley, Constitutional Law, ch. xiii, 5; H. C. Black, Constitutional Law, ...
-245. Constitutional Provisions
Jury trial is not only guaranteed in criminal prosecutions (see above, 235), but also in civil suits, by Amendment VII of the federal constitution, In suits at common law, where the value in ...
-246. Selection Of A Jury
Jury trial as guaranteed in general terms means a determination of questions of fact in cases tried at law, either civil or criminal (as distinct from civil cases tried in equity), by a jury of twelve...
-247. Evidence To The Jury; Instructions
The jurors thus sworn hear the evidence which the trial judge permits to be offered. In determining what evidence is to be offered and considered the judge applies rules of law and the jury is authori...
-248. Verdict Of The Jury
After being instructed by the judge as to the law applicable to the case the jurors consider by themselves, without the presence of the judge or any other person, the evidence submitted to them and th...
-249. The Jury In Inferior Courts
Constitutional provisions as to jury trial are in general applicable only to courts of general jurisdiction. Inferior courts may be provided for in which questions of fact may be tried before a jury o...
-250. The Jury In Equity Cases
It has already been stated that the article of the federal constitution on the judiciary recognizes a distinction between cases at law and cases in equity (see above, 146) and Amendment VII gua...
-251. Re-Examination Of Cases Tried By Jury
By the provision of the federal constitution, that no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law (Am. VII) i...
-252. Waiver Of Jury Trial
The right to trial by jury in a court of law is one which may be waived by the person entitled thereto, and such courts are generally authorized to try cases without a jury where both parties consent ...
-253. Modification Of Trial By Jury
As the first eight amendments to the federal constitution apply to the federal government only, and are not limitations upon the powers of the states, there is no reason why the method of trial by jur...
-254. Expediency Of Provisions As To Jury Trial
The historical fact that the colonists regarded jury trial as an essential of the common-law system of administering justice and that it has been guaranteed in all the state constitutions as well as i...
-Chapter XLIV. Due Process Of Law; Equal Protection
255. References T. M. Cooley, Constitutional Limitations, ch. xi; J. I. C. Hare, Constitutional Law, 39;* J. R. Tucker, Constitution, 390; J. N. Pomeroy, Constitutional Law, &...
-256. Constitutional Provisions As To Due Process Of Law
The early state constitutions, as well as various documents in which the colonists set forth their claims to the enjoyment of privileges vouchsafed to British subjects by the common law of England, ma...
-257. What Is Due Process Of Law
It is very difficult to give any concise definition of what is meant by due process of law, but it has been well said that by the use of these words in constitutional guaranties the intent is to secu...
-258. Effect Of Legislation On Due Process Of Law
It must not be understood, however, that whatever is enacted by the legislative department is a part of the law of the land in such sense that compliance therewith necessarily constitutes the due proc...
-259. What Persons Are Entitled To Due Process Of Law
It is to be noticed as of great significance that the Fourteenth Amendment declares that no state shall deprive any person of life, liberty, or property, etc., and the same form of expression is use...
-260. What Are Property Rights Protected By Due Process Of Law
Whatever has been generally regarded as property, tangible or intangible, corporeal or incorporeal, in possession or in expectancy, is regarded as property within the meaning of the constitutional pro...
-261. Freedom Of Contract And Of Labor
The right of personal liberty and the right to acquire and hold property which are protected by the general guaranty of due process of law involve the right to make contracts and to enforce remedies f...
-262. Equal Protection Of The Laws
The principle of equality of all men before the law (see above, 204), which is fundamental in our constitutional system, necessarily involves all that is especially guaranteed by the provisions...
-Chapter XLV. Impairment Of Contract Rights
263. References J. Story, Constitution, 1374-1400; T. M. Cooley, Constitutional Limitations, ** 273-294; J. I. C. Hare, Constitutional Law, chs. xxvi-xxviii; J. R. Tucker, ...
-264. Constitutional Provisions As To Contracts
In state constitutions there is usually a provision that no law shall be passed impairing the obligation of contracts; and in the federal constitution (Art. I, 10, 1) this prohibition is...
-265. Bankruptcy And Legal Tender Statutes
The fact that states are prohibited from impairing contracts while no such provision is imposed on the federal government is significant when there is occasion to consider the validity of state statut...
-266. "What Kind Of Contracts Are Protected From Impairment
There is a legal distinction between the obligation of an executory contract, that is, one not yet performed or carried out on one side at least, and an executed contract, that is, one which has been ...
-267. Are Judicial Decisions Contracts?
The judgment of a court is sometimes spoken of as an implied contract and if the judgmeut is for the performance of a duty arising by contract no doubt its obligations are protected as against subsequ...
-268. Statutory Privileges Or Exemptions
A state may make contracts with individuals, and such contracts when made cannot be impaired, although as already indicated (see above, 264) there may be no remedy afforded for the violation of...
-269. Corporate Charters
In the famous Dartmouth College Case, Trustees of Dartmouth College v. Woodward, it was held after elaborate discussion pro and con that a charter granted to a corporation by the state was a contract ...
-Chapter XLVI. Vested Rights And Retroactive Legislation
270. References J. Story, Constitution, 1398, 1399; T. M. Cooley, Constitutional Limitations, ** 358-389; J. I. C. Hare, Constitutional Law, ch. xxxv; H. C. Black, Constitutional Law, ...
-271. What Rights Are Vested
The term vested rights is not used in the federal constitution (Campbell v. Holf) nor generally in state constitutions; but it is frequently employed to describe those rights incident to property or...
-212. Retrospective Legislation
The state and federal governments are prohibited from passing ex post facto laws. These prohibitions found in the state and federal constitutions are construed as referring only to statutes relating t...
-Appendix Of Documents. A. Extracts From Magna Charta (1215)
[The original charter was in Latin. The translation from which the following extracts are taken is that published in Sheldon Amos' The English Constitution, and reprinted in Old South Leaflets, No. 5,...
-B. The Bill Of Rights Enacted By The English Parliament, 1689
[The following text is taken from the English Statutes at Large, Vol. 3 (Part I), 40-43, being 1 William and Mary, Sess. 2, C. II. It may be found also in Mabel Hill's Liberty Documents, with the text...
-The Bill Of Rights Enacted By The English Parliament, 1689. Continued
Having therefore an entire confidence, That his said Highness the Prince of Orange will perfect the deliverance so far advanced by him, and will still preserve them from the violation of their rights,...
-C. The Virginia Bill Of Rights (1776)
[Virginia seems to have been the first of the States to adopt a formal and complete constitution (June, 1776) in response to the recommendation made by the Continental Congress in May of that year, th...
-D. The Declaration Of Independence
In Congress, July 4, 1776. The Unanimous Declaration Of The Thirteen United States Of America. [The following text is from a facsimile of the original manuscript.] When in the Course of human...
-E. Articles Of Confederation (1781)
[The following is the official engrossed text as printed in American History Leaflets, No. 20, from the original parchment rolls.] To all to Whom these Presents shall come, we the under signed Dele...
-Articles Of Confederation (1781). Part 2
No state shall engage in any war without the consent of the united states in congress assembled, unless such state be actually invaded by enemies, or shall have received certain advice of a resolution...
-Articles Of Confederation (1781). Part 3
All controversies concerning the private right of soil claimed under different grants of two or more states, whose jurisdictions as they may respect such lands, and the states which passed such grants...
-F. The Northwest Ordinance (1787)
[While the Convention which framed the Federal Constitution was sitting in Philadelphia, the Continental Congress sitting in New York July 13, 1787, adopted the following Ordinance, reported by a comm...
-The Northwest Ordinance (1787). Continued
So soon as there shall be five thousand free male inhabitante of full age, in the district, upon giving proof thereof to the governor, they shall receive authority, with time and place, to elect repre...
-G. Constitution Of The United States Of America (1789)†
[The following text of the Federal Constitution, including the Amendments thereto, is reprinted with the accompanying note from American History Lea/lets, No. 8, in preparing which the original parchm...
-Constitution Of The United States Of America. Part 2
[ 3.] Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Memb...
-Constitution Of The United States Of America. Part 3
Section 9 [ 1.] [The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thou...
-Constitution Of The United States Of America. Part 4
Section. 2 [ 1.] The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the Unit...
-Amendments To The Constitution Of The United States Of America
ARTICLES in addition to and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article o...






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