The Constitutional Law Of The United States | by Westel Woodbury Willoughby

In the preparation of this work, the aim has been to give a logical and complete exposition of the general principles of the constitutional law of the United States. The effort has been to ascertain and to discuss critically the broad principles upon which have been founded the decisions rendered by the Supreme Court of the United States in the leading cases, and thus to present, as a systematic whole, a statement of the underlying doctrines by which our complex system of constitutional jurisprudence is governed. The performance of this purpose has required that attention should be devoted rather to a consideration of those principles of our public law which are fundamental, and especially of those the possible implications of which are not yet certainly determined, than to a statement in minute detail of those adjudications which, in themselves, establish no general rule of law, or illustrate no novel application of one. This latter task is one which more properly belongs to compilers of digests or to the authors of more special text-books. It is confidently believed, however, that in the present work no really important case has been left unnoticed.

Title	The Constitutional Law Of The United States
Author	Westel Woodbury Willoughby
Publisher	Baker, Voorhis & Company
Year	1910
Copyright	1910, W. W. Willoughby
Amazon	Constitutional Law

The Constitutional Law Of The United States

By Westel Woodbury Willoughby, Ph. D.

Professor of Political Science, Johns Hopkins University; Managing-Editor American Political Science Review; Author of " The American Constitutional System," "The Supreme Court of the United States: Its Place and Influence in our Constitutional System," "The Nature of the State," " Rights and Duties of American Citizenship," etc.

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Preface: In the preparation of this work, the aim has been to give a logical and complete exposition of the general principles of the constitutional law of the United States. The effort has been to ascertain a...

Constitution Of The United States: We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the ...

Constitution Of The United States. Part 2: Section 6 1 The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States, They shall in all cases, exc...

Constitution Of The United States. 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 thousand eight hu...

Constitution Of The United States. 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 United States; he...

Constitution Of The United States. Part 5: Article VI 1 All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederati...

Constitution Of The United States. Part 6: Article XIII Section 1 1 Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any plac...

United States Constitutional Law. Chapter I. The Supremacy Of The United States Constitution: The fundamental principle of American constitutional jurisprudence is that laws and not men shall govern. This means that when a power, exercised by an official or by a governmental organ, is challeng...

1. The Courts And Unconstitutional Laws: The principle that statutory law, in order to be valid, must be in conformity with constitutional requirements, is a product of American jurisprudence, and peculiar to it. That the acts of the legisla...

2. Marbury V. Madison: The acceptance of this principle in the United States may be dated from the decision by the Supreme Court in 1803 of the case of Marbury v. Madison.1 This point is of such transcendent importance that...

3. Criticism: The force of the reasoning of Marshall, Webster and Kent may in somè respects be questioned, or at least added to. That organ or body which has the final power to interpret the Constitution has neces...

4. The Expediency Of This Judicial Power: As regards the expediency of granting to the courts rather than to the legislature itself the final power of construing the Constitution there would seem to be little doubt, though there are indeed so...

5. Courts Do Not "Nullify" Laws: The doctrine that an unconstitutional law is void is often stated as a deduction from the premise that constitutional law is a superior kind of law to which statute law of inferior rank is obliged to ...

Chapter II. Principles Of Constitutional Construction. 6. Circumstances Under Which The Courts Will Hold An Act Of Congress Void: Because an act of Congress is the declaration of a co-ordinate branch of the National Government, the courts have established for themselves certain more or less definite rules governing the condition...

6. Circumstances Under Which The Courts Will Hold An Act Of Congress Void. Part 2: In the Constitutional Convention of 1787 it was proposed to give this power to the President and Congress and to ask opinions of the Supreme Court, but nothing came of it. (5 Ell. Deb. 445.) In 1793 ...

Circumstances Under Which The Courts Will Hold An Act Of Congress Void. Part 3: 7207 U. S. 463; 28 Sup. Ct. Rep. 141; 52 L. ed. 297. 8 The principles of construction invoked are undoubted, but are inapplicable. Of course, if it can be lawfully done, our duty is to construe the ...

7. Legislative Motives: With the motives of the legislators the courts cannot concern themselves. The judiciary can only inquire whether the means devised in the execution of a power granted are forbidden by the Constituti...

8. Expediency And Reasonableness Of Legislation Not Subject To Judicial Determination: The power of Congress to legislate being conceded, the wisdom or expediency of the manner in which the power is exercised is beyond judicial criticism or control.15 If the statute is beyond the const...

9. Presumption In Favor Of The Constitutionality Of An Act Of Congress: The fact that Congress has given a particular construction to a constitutional provision, is of very great weight with the Supreme Court when it is called upon to examine the correctness of this inter...

10. Presumption In Favor Of The Constitutionality Of A State Statute: The rule of construction that has been under consideration has especial application to acts of Congress. When the constitutionality of a state law is involved, the principle is not always applicable. ...

11. The Force Of Contemporaneous Or Long Continued Legislative Interpretation: The presumption of constitutionality which attaches to an act of Congress is increased when the legislative interpretation has been frequently applied during a considerable number of years, or when it...

12. Legislative And Executive Practice Not Absolutely Binding: The Supreme Court has, however, never held itself absolutely bound by a legislative or executive construction (political questions excepted) however long acquiesced in, or however nearly contemporaneo...

13. Extrinsic Evidence: Generally speaking, in the construction of the Constitution the well known distinctions between latent and patent ambiguities, and between the use of extrinsic and intrinsic evidence apply. Where the ...

14. Technical Terms: When, however, there is no ambiguity of grammatical construction, but the words themselves require definition, recourse is properly had to extrinsic evidence. Here it is necessary to learn from extrin...

15. The Interpretative Value Of Debates In Constitutional Conventions: When it is necessary and proper to resort to extrinsic evidence in interpreting the Constitution, an important source of such evidence is to be found in the history of the events which led up to its a...

16. The Federalist: What has been said regarding the interpretative value of the debates in the conventions that framed and ratified the Constitution, and the value of contemporary interpretation thereof by Congress and ...

17. History Of The Times: The case of Prigg v. Pennsylvania30 illustrates the value of a resort to the history of the times and to the general object sought to be obtained, in interpreting an ambiguous constitutional provisi...

18. The Interpretative Value Of Legislative Debates: As in the case of the examination of the Constitution itself, the courts in considering the constitutionality of a statute hold themselves bound by the words of the statute, that is, they determine th...

19. Resort To The Preamble For Purpose Of Construction: The value of the Preamble to the Constitution for purposes of construction is similar to that given to the preamble of an ordinary statute. It may not be relied upon for giving to the body of the inst...

20. " We, The People.": As regards the phrase We, the People, it would seem that little light can be obtained from its use, except to fix the fact, which no one has attempted to deny, that the new government derived its ri...

21. "Constitution.": The fact that the instrument of 1789 is termed a Constitution has by some been taken to indicate that a National State, and not a confederacy of States was intended to be created. Thus Webster in hi...

22. "Common Defense And General Welfare.": The declaration in the Preamble that the new Union is established for the common defense and general welfare, and the grant by Article I, Section 8, of the Constitution to Congress of the power to l...

23. The Constitution Is To Be Construed As A Whole: Though the terms of the Constitution may not be varied, or its grants of authority limited by abstract doctrines of private rights and of political justice and expediency, the words of each clause are...

24. So-Called "Natural" Or "Unwritten Constitutional" Laws Have No Constructive Force: The so-called natural or unwritten laws defining the natural, inalienable, inherent rights of the citizen, which, it is sometimes claimed, spring from the very nature of free government, have no for...

25. The "Spirit" Of The Constitution: Closely allied to the assertion that the Constitution is to be interpreted in the light of natural law, is the doctrine that the fundamental purpose of the constitutional fathers was the erection of...

26. Applicability Of Constitutional Provisions To Modern Conditions: In construing the Constitution the very proper and indeed absolutely necessary principle has been followed that that instrument was intended to endure for all time and that its grants of power are, th...

27. The Wilson-Roosevelt Doctrine Of Construction: A doctrine of construction radically different from that which has just been stated, and which has never been accepted by the Supreme Court, is that originally put forth by James Wilson of Pennsylvani...

28. Stare Decisis: There have not been many cases in which the Supreme Court has explicitly and avowedly overruled its prior decisions, but there have been frequent instances in which the doctrines declared in prior cas...

Chapter III. The Division Of Powers Between The United States And Its Member States. 29. Federal Powers: The United States Constitution serves a double purpose. It operates as an instrument to delimit the several spheres of federal and state authority, and to provide for the organization of the Federal G...

30. Express And Implied Powers: Though the Federal Government is one of enumerated powers, its powers are not described in detail, and from the very beginning it has been construed to possess not simply those powers that are specifi...

31. Federal Powers To Be Liberally Construed: The Constitution is in terms and general character a grant of powers - a grant from the people of the several States to the National Government, and, strictly speaking, as in all grants of-power, the ...

32. Strict Construction A Corollary Of The States' Rights Doctrine: Without in any way questioning the validity of the rule of construction stated in the preceding paragraphs, it is to be observed that its propriety is absolutely dependent upon the prior assumption th...

33. "Necessary And Proper.": In pursuance of the foregoing principles the Supreme Court of the United States has, from the very beginning, declared that the powers thus impliedly granted the General Government as necessary and pr...

34. Mcculloch V. Maryland: The classic statement, however, of the scope of the implied powers of Congress is of course that made by Marshall in the opinion which he rendered in McCulloch v. Maryland.7 In that great case, the ...

35. Administrative Necessity As A Source Of Federal Power: Since the close of the Civil War the sovereignty of the National Government has been undisputed. Starting with this as a fundamental premise, constitutional development of the last forty years has bee...

36. International Sovereignty And Responsibility As A Source Of Implied Powers: Starting from the premise that in all that pertains to international relations the United States appears as a single sovereign nation, and that upon it rests the constitutional duty of meeting all int...

37. Resulting Powers: The two preceding sections have shown that the doctrine of implied powers is sufficiently broad to justify the exercise by the Federal Government of powers not deduced from specific grants of authorit...

38. Inherent Sovereign Powers: Sometimes confused with, but quite distinct from the doctrine which ascribes to the Federal Government plenary authority in matters international, and quite different also from the doctrine of resulti...

39. Express Limitations Upon The Federal Government: . The express limitations upon the powers of the Federal Government are in part limitations upon the manner of exercise of powers expressly given, as, for example, that direct taxes shall be apportion...

40. Implied Limitations Upon The Federal Government: The implied limitations upon the Federal Government are: first, those implied in the express limitations; and second, those which arise from the general nature of the American federal State. The Const...

41. Exclusive And Concurrent Federal Powers: The legislative powers possessed by the Federal Government may be divided into two classes; the one embracing those powers the exercise of which is exclusively vested in the General Government; the ot...

Chapter IV. The Supremacy Of Federal Authority. 42. Federal Supremacy: The supremacy of the Federal Government, when operating within its constitutional sphere, over all persons and bodies politic within its territorial limits, is no longer open to question. That the ext...

Federal Supremacy. Part 2: The importance of the doctrine that was emphatically declared in these two cases it is impossible to exaggerate. This the upholders of States' Rights clearly saw. Thus Calhoun later wrote:12 The effe...

Federal Supremacy. Part 3: Regarding the attitude of the Supreme Court during this period, the important fact is to be noticed that, though it threw the weight of its influence upon the side of the States so far as concerned a ...

43. The States May Not Be Coerced: In a Confederacy which is, in effect, a league of completely sovereign States, such coercion as it may be necessary for the central power to apply, may in certain cases be directed directly against th...

44. Conclusion: The foregoing cases sufficiently illustrate the general principle of the supremacy of the federal law. The maintenance of this principle, by the exemption of federal agencies from state interference b...

Chapter V. The Maintenance Of Federal Supremacy - The Freedom Of Federal Agencies From Interference Or Control By The States. 45. State Taxation Of Federal Governmental Agencies: The successful maintenance of a federal government, under any circumstances a most difficult task, is an especially difficult one in the United States where federal functions are exclusively performed...

46. Property Of Federal Agencies May Be Taxed: In McCnlloch v. Maryland and Osborn v. Bank of Ohio the States had attempted to levy a tax, in the nature of a franchise tax, upon the operations of the federal bank. In the Maryland case Chief Justic...

47. State Taxation Of Federal Franchises: A franchise to be or to act as a corporation granted by a State, may be taxed by a State as a piece of intangible property. But franchises or other rights derived from the Federal Government may not b...

48. State Taxation Of Patent Rights: In conformity with the foregoing doctrine it has been held that while the States may tax the capital employed in the manufacture of copyrighted or patented articles, as well as the tangible property e...

49. State Taxation Of Federally Licensed Occupations: Where, by federal license, an occupation has been authorized by the United States, enjoyment and employment of the license may not bo re-trained by a State. Thus in Moran v. New Orleans16 was held voi...

50. State Taxation Of Federal Salaries: That the salary or other emoluments of office of federal officials may not be taxed by the States has not been questioned since the doctrine was first declared in Dobbins v. Commissioners.18 The powe...

51. State Taxation Of Federal Property: The principle that property belonging to the United States is not taxable by the States in which it is situated did not receive final judicial affirmation until 1885 in Van Brocklin v. Tennessee.20 Pr...

52. State Taxation Of Federal Securities: United States securities, it has been held, may not be taxed by the States for the reason that to admit this power would give to the State the authority to impair the borrowing power of the National G...

53. Income From Federal Securities Exempt From State Taxation: Incomes derived from interest on federal securities, are exempt from state taxation.34 This was held with reference to the exemption from federal taxation of incomes derived from state securities, and...

54. State Taxation Of Circulating Notes Of National Banks: Congress, by an act approved August 13, 1894, has provided that circulating notes of national banking associations and United States legal tender notes, and other notes and certificates of the United...

55. State Taxation Of Bequests To The United States: Bequests to the United States may be subjected to state inheritance taxes, such taxes, the courts, both state and federal, holding to be not upon the property bequeathed, but upon its transmission by ...

56. State Taxation Of National Banks: By act of June 3, 1864, certain powers of taxation with reference to national banks were given by Congress to the States. This permission now constituting Section 5219 of the Revised Statutes is as fo...

57. Federal Taxation Of State Agencies: Correlative to the implied limitation upon the States with respect to interference with federal agencies of government, is the implied obligation upon the Federal Government not to interfere with the ...

58. Federal Taxation Of Property Of Municipalities: In United States v. B. & 0. Ry.51 it was held that the United States could not collect a tax on money due a municipality of one of the States, the court saying: A municipal corporation like the City ...

59. South Carolina V. United States: An interesting case of recent date bearing upon the right of the Federal Government, by taxation or otherwise, to interfere with state governmental operations is that of the State of South Carolina v....

60. Federal Taxation Of State Documents: In a number of cases in the State courts, interesting points have been raised and decided with reference to the obligation imposed by federal laws to affix stamps to certain documents. There is little...

61. Federal Exercise Of Eminent Domain In The States: The relation of the federal power to state governmental instrumentalities has been further illustrated in the matter of the Federal Government's right of eminent domain, it having been held that the G...

Chapter VI. The Maintenance Of Federal Supremacy By Writs Of Error From The Federal Supreme Court To State Courts. 62. Writs Of Error To State Courts: A corollary that follows from the supremacy of federal law is that when a federal right, privilege or immunity is set up as a defense or authority for an act, opportunity shall exist for a final deter...

63. Martin V. Hunter's Lessee: The constitutionality of this section of the Judiciary Act was affirmed by the Supreme Court in 1816 in Martin v. Hunter's Lessee.1 This was a writ of error to the Court of Appeals of the State of Vir...

64. Cohens V. Virginia: The appellate power of the federal Supreme Court under the twenty-fifth section of the Judiciary Act was again contested in Cohens v. Virginia,2 decided in 1821, Chief Justice Marshall rendering the o...

Chapter VII. The Maintenance Of Federal Supremacy By The Removal Of Suits From State To Federal Courts. 65. Right Of Removal: A corollary which necessarily follows from the doctrine of federal supremacy is that no State can declare criminal and punish as such acts authorized by federal law. Since the Civil War this has not b...

66. Tennessee V. Davis: This act has been from time to time amended, and now forms 643 of the Revised Statutes. Its constitutionality was first judicially examined by the Supreme Court in Tennessee v. Davis.2 In this ...

67. Right Of Removal In CIVIL Cases: The right to remove civil cases begun in state courts into the federal courts will receive treatment in a later chapter. In these cases the right is given not so much that federal supremacy may be ma...

Chapter VIII. Maintenance Of Federal Supremacy By Habeas Corpus To State Authorities. 68. State Courts May Not Interfere With Federal Authorities: During the ante helium period the Federal Government often made use of state tribunals and officers for the execution of its laws. Thus state justices of the peace acted as examining magistrates in cr...

69. Issuance Of The Writ By Federal Courts: Instead of submitting to interference by the States with the exercise of their powers, the federal courts have, especially of recent years, again and again, on writs of habeas corpus, removed from sta...

70. The Neagle Case: The leading case, however, and, in some respects, the most extreme, in upholding the power of the federal courts in the matter of the issuance of writs of habeas corpus to state authorities is that of...

71. Writ Issued Only When Imperative: The Supreme Court of the United States, though uniformly affirming the doctrine that the federal courts have power, by writ of habeas corpus, to inquire into the cause of the restraint of the liberty ...

Chapter IX. The Maintenance Of Federal Supremacy; The Independence Of Federal Courts From State Interference. 72. Independence Of Federal Authorities: A federal court having assumed jurisdiction over a person or piece of property, the state authorities are excluded from any interference therewith or from in any way assuming jurisdiction therein. Thi...

73. Injunctions From Federal To State Courts: It is, however, not quite correct to say that the two judicial systems are entirely independent in their sphere of action. It is true that the state courts are wholly without power in any way to con...

74. State Restrictions Upon The Right Of Removal Of Suits From State To Federal Courts: By various acts of Congress rights have been granted to defendants to remove into federal courts civil actions begun in state courts, where there is a diversity of citizenship of the parties. This rig...

State Restrictions Upon The Right Of Removal Of Suits From State To Federal Courts. Continued: 18A strong dissenting opinion, concurred in by Justice Harlan, was filed in this case by Justice Day. So, also, it is held that the proper petition and bond having -been filed, a case is considered r...

Chapter X. The Federal Control Of The Form Of State Governments. 75. State Autonomy: In the foregoing pages the sovereignty of the United States as opposed to, and inconsistent with, the continued sovereignty of its individual commonwealth members has been sufficiently declared, Whate...

76. Republican Form Of Government Defined: The federal Constitution provides that The United States shall guarantee to every State in this Union a republican form of government, and protect each of them against invasion; and, on application o...

77. The Constitutionality Of Referendum Laws: In the courts of the States, general direct legislation (referendum) laws were in a few early cases held unconstitutional on the ground that their effect is to establish a democratic in place of a rep...

78. Dorr's Rebellion: The first instance in which, the Federal Government was called upon to construe this guaranty clause was in connection with Dorr's Rebellion in Rhode Island in 1841. The salient facts of this incident...

79. Luther V. Borden: The case of Luther v. Borden,8 decided by the Supreme Court in 1845, arose out of Dorr's Rebellion. Borden, acting under authority of the old government of Rhode Island, had broken into the house of L...

80. The Reconstruction Of Southern States After The CIVIL War: Acting under the authority assumed to be given it by the guaranty clause, Congress, at the conclusion of the Civil War, assumed an almost complete control over the reconstruction of governments in tho...

81. Restricted Suffrage Compatible With Republic Form Of Government: In Minor v. Happersett15 the point was raised that a state government is not republican in form in which adult women are not permitted to vote. As to this the court said: The guaranty is of a republi...

82. Public Office Not A Property Or Contract Right: The Supreme Court of the United States has held in an unqualified manner, that as between a State and an office-holder, there is no contract right possessed by the latter either to the office or to th...

83. Suits Between Two Or More Claimants To State Office: When the dispute is not one between the State and one of its officers, but between two individuals each claiming the office and its emoluments, - when, in other words, the office itself is not disturb...

84. Taylor V. Beckham: The latest case upon the point under consideration is that of Taylor v. Beckham,20 decided in 1900. This case arose out of the following facts. At a general election held in November, 1899, in Kentuck...

Chapter XI. Federal Supervision Of State Activities; The Fourteenth Amendment. 85. The Fourteenth Amendment: In the chapters which have gone before, the manner in which the Federal Government is secured from interference on the part of the States has been considered. We turn now to a topic which, while close...

86. The Slaughter House Cases: The famous Slaughter House Cases,3 decided in 1873, grew out of the following facts: The State of Louisiana in the exercise of its police powers, had passed an act chartering a company, and giving t...

The Slaughter House Cases. Continued: The majority of the court were not able to accept this construction of the Amendment which, as we have seen, would have opened such possibilities of increasing the federal powers at the expense of tho...

87. Effect Of Fourteenth Amendment Upon Rights Enumerated In First Eight Amendments: In Ex parte Spies7 the point was urged upon the court that the privileges and immunities secured against federal infringement by the first eight Amendments to the federal Constitution, were, because s...

88. Suffrage Not A Necessary Incident Of Citizenship: In Minor v. Happersett10 it was held that the suffrage is not a right springing from federal citizenship. This doctrine was declared in passing upon the claim made in that case by a woman that because...

89. Legislative Power Granted Congress By The Fourteenth Amendment: From the foregoing cases it appears that the clause of the Fourteenth Amendment which declares that So State shall make or enforce any law which shall abridge the privileges or immunities of citizens...

Legislative Power Granted Congress By The Fourteenth Amendment. Continued: 14 100 D. S. 303; 25 L. ed. 664. 15 100 U. S. 313; 25 L. ed. 667. In Ex parte Virginia17 a somewhat different state of facts was presented. Here there was no state law the constitutionality of which...

90. Summary: By way of resume we may say that, as interpreted by the Supreme Court, the adoption of the Fourteenth Amendment has not brought about any fundamental change in our constitutional system. No new subjec...

Chapter XII. Interstate Relations; Full Force And Credit Clause. 91. States Independent Of One Another: In the chapters which have been gone before the constitutional relations which exist between the Federal Government upon the one side and the State upon the other side have been considered. In the pre...

92. Congressional Legislation: By a law passed in 1790 Congress provided: That the acts of the legislature of the several States shall be authenticated by having the seal of their respective States affixed thereto; that the record...

93. Federal Judgments And Decrees: In numerous cases it has been held that full force and credit is to be given to judgments of federal courts obtained m one State or Territory when sought to be enforced in the federal courts in anothe...

94. Full Faith And Credit Clause Applies Only To CIVIL Judgments And Decrees: It seems scarcely necessary to say that the full force and credit clause has reference only to civil judgments. No State, it has been held, is by this provision compelled to lend its aid in the enf...

95. Full Faith And Credit Clause Establishes A Rule Of Evidence: The application of the foregoing rule, the court go on to say, is not affected by the full faith and credit clause. That clause, and the acts of Congress under it, it is declared, establish a rule of ...

96. Judgments In Rem And In Personam: The validity of judgments or decrees in States other than those in which they are obtained depends upon the court which rendered them having obtained jurisdiction. -In order to obtain jurisdiction in ...

97. Nul Tiel Record: From the foregoing it clearly appears that in all cases in which suit is brought in one State upon a judgment rendered in another State, the court in which the suit is brought may examine whether the ...

98. Marriage And Divorce: The force and meaning of the full faith and credit clause of the Constitution has been especially worked out in connection with the subject of marriage and divorce and it will, therefore, be proper ...

Marriage And Divorce. Continued: The court in its opinion was, however, careful to confine the doctrine laid down to the particular ease before it. This case,' it declared, does not involve the validity of a divorce granted on con...

Chapter XIII. Interstate Relations: The Comity Clause. 99. Privileges And Immunities: Article IV, Section 2 of the Constitution declares that the citizens of each State shall be entitled to all privileges and ini-munities of citizens in the several States. This provision has for its ...

100. Political Privileges: The interstate comity clause of the federal Constitution does not compel the several States to grant to resident citizens of the other States immediately upon their entrance into the State the politic...

101 State Proprietary Privileges: In McCready v. Virginia11 the important limitation of the clause was established that a citizen of one State is not, of constitutional right, entitled to share upon equal terms with the citizens of an...

102. Privileges Of One State Not Carried Into Other States: The comity clause does not entitle a citizen within his own State to privileges and immunities which may be granted by other States to their citizens. In other words, it does not require that when a r...

103. Corporations Not Citizens Within The Meaning Of The Comity Clause: In Paul v. Virginia the doctrine, never since questioned, was laid down that a corporation is not a citizen within the meaning of the term as used in the comity clause. Inasmuch as a corporation is t...

Chapter XIV. Interstate Relations: Extradition. 104. Interstate Extradition: The Constitution provides 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 the executive authori...

105. Extradition By The States Of The Union To Foreign States: In 1840 the Supreme Court was called upon to pass upon the question whether it lies within the constitutional power of the individual States of the Union to surrender fugitives from justice to a forei...

106. Auxiliary Legislation By The States: The power of Congress by legislation to render effective the extradition clause is not exclusive, and does not, therefore, exclude the power of the State to enact measures auxiliary thereto. Indeed, s...

107. Judicial Examination Of Extradition Proceedings: Upon the executive of the State rests the responsibility of determining, in some legal mode, whether [the one claimed] is a fugitive of the demanding State. He does not fail in duty if he makes it a ...

108. Abduction And Forcible Return Of Fugitives From Justice: It has been decided10 that where a fugitive has been forcibly abducted, without being extradited, from a State to which he had fled to the State from which he had tied, neither the Federal Government...

109. Trial For Offenses Other Than Those For Which Extradited: In United States v. Rauscher14 was considered the question whether a fugitive extradited from a foreign country in pursuance of a treaty between that country and the United States covering the crime c...

110. Who Is A " Fugitive.": To be a fugitive from justice . . . it is not necessary that the party charged should have left the State in which the crime is alleged to have been committed, after an indictment found, or for the p...

111. Fugitive Slaves: The same section of Article IV which provides for the extradition of fugitives from justice, provides that no person held to service or labor in one State, under the laws thereof, escaping into anoth...

Chapter XV. Interstate Relations: Compacts Between The States, And Between The United States And The States. 112. Compacts Between The States: The control of international relations being exclusively vested in the Federal Government, it necessarily follows that the several States have no authority to enter into any diplomatic or .political r...

113. Compact Between The States And The United States: Closely connected with the question of compacts of the States,. inter se, is that of compacts between the individual States and the United States. Of compacts of this character which have been entere...

114. Equality Of The States: The principle of the equality of the States had its origin before the adoption of the Constitution itself. In the acts of cession by the several States through which the old Confederacy obtained the c...

115. Contracts Regarding Proprietary Interests: Turning now to a consideration of the continued validity and enforceability of compacts between the States and General Government with reference to proprietary interests, one finds the comparatively r...

116. Suits Between States: This subject will be treated in connection with the Judicial Power of the United States.14 14 See chapter LIII (Suits Between States And To Which A State Or The United States Is A Party Plaintiff. 60...

Chapter XVI. Naturalization. 117. Territorial Sovereignty: By international law and by the public law of all civilized States the legal jurisdiction of a State is generally recognized to extend over all persons for the time being within the districts under it...

118. De Facto Control: The authority of States over districts and their inhabitants temporarily subject to its de facto control, will be considered in another chapter. At this place it will be sufficient to quote the opinio...

119. Status Of Aliens: As regards the stutus of aliens, that is, subjects of other States, who are temporarily or permanently domiciled in a State, it may be said that the fact that they are within the territorial limits ma...

120. Double Allegiance: There is no objection to predicating the existence of this double allegiance, for, despite the fact that modern sovereignty is generally spoken of as territorial, it is, in fact, personal, and imports...

121. Status Of Aliens In The United States: In the preceding section it has been shown that a State has absolute legal authority over all persons within its territorial jurisdiction, and over its own citizens wherever they may be. In the exerci...

122. Domiciled Aliens: A distinction is made in practically all countries between domiciled and non-domiciled aliens, with reference to the legal burdens that may be imposed and the civil and political rights that may be en...

123. Aliens Not Domiciled: An alien passing through the United States, or for any purpose only temporarily in the country, is held fully subject to local criminal law. He is also able to enter into civil contracts which may be ...

124. Exclusion And Expulsion Of Aliens: All countries have, according to the principles of international law, the right to determine for themselves whether or not they will admit aliens within their borders, or whether they will admit some ...

125. The Chinese: The right of the United States, from both the international and constitutional viewpoints, to prohibit entrance within its borders to such aliens as it may deem undesirable additions to its population...

126. Protection Of The Persons And Property Of Aliens: Aliens are, by the general doctrines of public law, entitled to the same protection of person and property as that enjoyed by the citizens of the State in which they are resident. In all cases, when i...

Chapter XVII. American Citizenship. 127. Citizenship Defined: From the consideration of the status of aliens, we turn to an examination of the status of citizens or subjects. The citizen or subject body of a State, regarded from the viewpoint of other States, t...

128. State And Federal Citizenship Distinguished: As adopted, the federal Constitution contained no definition of citizenship. Impliedly, however, it recognized a state citizenship in that clause which provides that citizens of each State shall be ...

129. The Dred Scott Case: The whole question of the relation between state and federal citizenship came up for discussion and decision in the Dred Scott case7 decided in 1856. Two of the questions involved in this case were: W...

The Dred Scott Case. Part 2: Justice Curtis in his dissenting opinion, after declaring the principle that the Constitution must have recognized as citizens of the United States all those who were recognized by the States as citiz...

The Dred Scott Case. Part 3: In a number of cases the courts held a middle position according to which free negroes were described as citizens of an order lower than that of whites. For these, and other references, see Report on ...

130. The Fourteenth Amendment: In 186S was adopted the Fourteenth Amendment which provides that All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and o...

131. District Of Columbia And Territories: Inhabitants of the District of Columbia and of a Territory are not citizens of a State within the meaning of the Constitution. They are, however, of course, citizens of the United States.17 ...

132. Boyd V. Nebraska Criticized: In Boyd v. Nebraska,18 decided in 1892, the Supreme Court took the extreme view, that, in the case of a state law or constitution which demanded as one of the qualifications for office, that the incum...

132. Wong Kim Ark Case: In the case of United States v. Wong Kim Ark,20 decided in 1898, the Supreme Court was called upon to determine whether, under the terms of the Fourteenth Amendment, persons born in the United States ...

Wong Kim Ark Case. Continued: The power of naturalization, vested in Congress by the Constitution, the opinion continues, is a power to confer citizeik-ship, not a power to take it away. 'A naturalized citizen,' said Chief J us...

Chapter XVIII. Naturalization. 133. Naturalization By Statute: Each country determines, by its own municipal law, the persons to be admitted to its citizenship. Since the adoption of the Constitution it has been recognized that citizenship of the United States m...

134. Naturalization By Annexation Of Territory And By Treaty: Where territories are annexed either by treaty or by conquest, the status of their inhabitants is determined at the will of the annexing States. In all cases, however, in the absence of any treaty sti...

Chapter XIX. Expatriations. 135. Denial Of Right Of Expatriation: Until comparatively recent times, except in the United States, the right of a citizen to cast off his natural allegiance, the allegiance into which he is born, was generally denied by the States of th...

136. Right Recognized By United States: Since 1868 the right of expatriation has been uniformly asserted by all the departments of the United States Government Prior to that time, the executive, judicial, and legislative branches were not a...

Chapter XX. The Legal Status Of Indians: The question of the legal status of Indians, which for many years, and especially during the last quarter of the nineteenth century, decreased in practical importance, has, since the annexation of the...

137. Indian Lands: With reference to the title possessed by Indians in the lands occupied, or hunted over by them, the principle was from the first applied by the white settlers that by discovery and occupation the titl...

138. The Legal Status Of Indians: From the earliest times the Indians, though treated as subject to the sovereignty first of the foreign colonizing powers, then of the colonies or States, and, finally, of the United States, have been ...

139. Federal Power Over Indians: The only direct references to the Indians in the present Constitution are in the provisions that Indians not taxed shall not be counted in determining the number of representatives in Congress to wh...

140. Congressional Legislation: By the Act of March 30, 1802, consolidating, revising, and re-enacting various prior laws, and entitled An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the f...

141. Federal Jurisdiction Exclusive. Cherokee Nation V. Georgia: The exclusiveness of this federal jurisdiction, and, consequently, the lack of constitutional power of the States in this field first came up for serious discussion in the Supreme Court of the United ...

142. Worcester V. Georgiai: In the great case of Worcester v. Georgia,18 decided in 1S32, the question of the political status of the Indians again came before the Supreme Court for discussion and the doctrine then laid down has...

143. Naturalization Of Indians By Statute: In 1884, in the case of Elk v. Wilkins,24 the question arose whether an Indian, born a member of one of the Indian tribes within the United States, became a citizen of the United States under the Four...

144 Disappearance Of Indian Tribal Autonomy: Since the decision of the Supreme Court in Elk v. Wilkins a number of acts of Congress have been passed which have had the effect of destroying-, to a very considerable extent, the autonomous tribal g...

Disappearance Of Indian Tribal Autonomy. Part 2: Sec. 5. That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall ...

Disappearance Of Indian Tribal Autonomy. Part 3: The peculiar status of those Indians who have not become citizens is illustrated in the form of a letter of protection issued in lieu of a passport, to those traveling abroad. The following is a lette...

Disappearance Of Indian Tribal Autonomy. Part 4: In Be Hoff,36 decided in 1905, however, the court held that an Indian to whom an allotment under the Act of 1887 had been made, and who, by that act, had been granted the privilege of citizenship, and...

Chapter XXI. The Admission Of New States. 145. The Admission Of New States: The process of admitting new States to the American Union is a comparatively simple process and but few constitutional questions have arisen in connection with it. The constitutional clause governing ...

Chapter XXII. The Power Of The United States To Acquire Territory: In the chapters that have gone before the effort has been made to set forth the constitutional relations subsisting between the Union and its commonwealth members. From the very beginning, however, th...

146. The Right To Annex Based On The Right To Admit New States: At the time of the adoption of the Constitution, the territory subject to the sovereignty of the United States consisted of the respective territories of the thirteen original States, and the vast re...

147. Annexation Of Louisiana. Views Of Jefferson: When, in 1790, North Carolina made a cession to the United States of its title to western territory, this was accepted by Congress in the Act of April 2, 1790, without constitutional question. This it...

148. Territories As Embryo States: There can be no question but that it was the general intention at the time that the Constitution was adopted that all the territory then under the sovereignty of the United States and not included wit...

149. Judicial Dicta. Taney's Views: A certain number of dicta of the Supreme Court of the United States may also be found in which the language indicates an accepted assumption that the territories held by the United States were all ult...

150. Conclusions: Concerning the validity of this claim that the Constitution looks to a Union composed only of States and potential States, this much may be granted: Beyond all reasonable doubt those who framed and ad...

151. The Right To Annex Based On The Treaty And War-Making Powers: As has been incidentally indicated in the preceding pages, the Supreme Court has held that whether or not the right to admit States into the Union carries with it the power to acquire new territory, t...

152. Power Of The United States To Alienate Territory: The subject will be discussed in Chapter XXXV (The Constitutional Extent Of The Treaty-Making Power. 210. Treaty-Making Power Granted Without Express Limitations) of this treatise. This theory has be...

Chapter XXIII. The Modes In Which, And Purposes For Which, Territory May Be Acquired By The United States. 153. Constitutional Modes Of Acquiring Territory: Having shown the constitutional power of the United States to acquire territory whether by treaty, conquest, or discovery and occupation, we now approach the question as to the modes by which this fed...

154. Annexation By Joint Resolution: In two instances, that of Texas in 1845, and Hawaii in 1898, the sovereignty of the United States has been extended over new territory by means of a Joint Resolution of the Houses of Congress. In the ...

155. Consent Of Inhabitants Of Annexed Territory Not Required: As to the question whether it be necessary to obtain the consent of the inhabitants of the territories to be annexed, it may be said that this is, or may be, a matter of justice and political expedien...

Chapter XXIV. The Constitutional Sources Of The Power Of Congress To Govern The Territories. 156. Power To Govern Territories Not Questioned: There has never been any question as to the power of the United States to govern the territories possessed or acquired by it and not included within the limits of any of the individual States. The onl...

157. Doctrines Of The Dred Scott Case: This review of decisions brings us chronologically to the Dred Seott case. Up to this time, it must be observed, that the chief reliance for the power to govern the territories had been the grant of a...

Doctrines Of The Dred Scott Case. Part 2: The Chief Justice, who was among those who took this position, argued as follows: The counsel for the plaintiff has laid much stress upon that article in the Constitution which confers on Congress th...

Doctrines Of The Dred Scott Case. Part 3: - With the exception of Justice Curtis, none of the other justices discussed at length the source of the power to acquire territory. Five of the other justices, however, concurred with the Chief Justi...

Chapter XXV. The Extent Of The Power Of Congress To Govern The Territories. 158. Power To Govern Absolute: Since the time when the necessity for the exercise of the authority arose, there has been almost no question as to the absolute power of Congress to determine the form of political and administrative ...

159. Classes Of Territorial Governments: Generally speaking, it may be said that the governments thus created have been and are of four kinds. First, there is the class of so-called Unorganized Territories, at present consisting only of Ala...

160. Constitutionality Of These Governments: The constitutionality of this legislation has never been seriously questioned.3 3 In the early case of Sere v. Pitot (6 Cr. 332; 3 L. ed. 240), decided in 1810, in its first reference to the power, t...

161. Territorial Governments Are Congressional Governments: The governments established in the Territories by Congress act as agencies of Congress, in the same sense that an administrative board acts as the agent of the law-making body that creates it. As such...

Chapter XXVI. The District Of Columbia. 162. The Government Of The District Of Columbia: The constitutional status of the district used as the seat of the Federal Government is almost the same as that of the Territories. Clause 17 of Section VIII of Article I of the Constitution empowers ...

The Government Of The District Of Columbia. Continued: The District of Columbia though not a State in the sense in which that word is used in the constitutional clause which gives to the federal courts jurisdiction in suits between citizens of different...

163. Places Purchased: The same clause of the Constitution which grants to Congress exclusive jurisdiction over the district to be selected for the seat of the National Government, authorizes Congress to exercise like auth...

Chapter XXVII. Military And Presidential Government Of Acquired Territory. 164. Conquest Or Military Occupation Does Not Operate To Annex Territory: Mere conquest, that is, the occupation by military force of foreign territory, is not sufficient to annex such territory to the State whose forces are in possession of it. However, for the time being,...

Conquest Or Military Occupation Does Not Operate To Annex Territory. Continued: At first it may appear that the doctrine declared in Fleming v. Page is not in harmony with that uttered in United States v. Rice; for in the former case it was held that mere military occupation was ...

165. Authority Of De Facto Governments: The government established and maintained by one State in military possession of territory of another, is, of course, a de facto one, but de facto in a somewhat different sense from that of a governme...

166. Status Of Conquered Domestic Territory: In New Orleans v. New York Mail Steamship Co.9 was considered the status of territory of the Southern Confederacy which had been conquered by the federal forces. The court held that the federal forces...

167. Presidential Governments: In 1846, during the war with Mexico, the United States military forces took possession of Upper California. In 1847 the President as Commander-in-Chief of the army and navy author-ized the establishme...

Chapter XXVIII. The Annexation Of Territory By Treaty. 168. Congressional Action Not Needed To Complete Annexation Of Territory Acquired By Treaty: That, under the treaty-making power provided in the Constitution, a foreign country may be brought under the sovereignty of the United States, and thus, from the viewpoint of international law, become...

169. Cross V. Harrison: In Cross v. Harrison,4 however, decided in 1853, it was held by a unanimous court, including Chief Justice Taney himself, that by the ratification of the treaty of 1848 between Mexico and the United S...

170. De Lima V. Bidwell: In De Lima v. Bidwell,6 with reference to the island of Porto Rico, the court held itself governed by the doctrine declared in Cross v. Harrison. It agreed with the declaration in Fleming v. Page that...

171. Dooley V. United States: Applying the doctrine of De Lima v. Bidwell, the Supreme Court in another of the Insular Cases (Dooley v. United States),8 held that though, after the treaty of peace providing for the annexation of P...

172. Duties Of President Prior To Congressional Action: The absolute power of Congress to determine the political or governmental rights in annexed territories constitutionally attaches from the moment that they become subject to the sovereignty of the Uni...

Chapter XXIX. The Distinction Between Incorporated And Unincorporated Territories. 173. Limitations Upon Powers Of Congress: The Constitution of the United States contains a number of express limitations upon the federal legislative power. In addition to those contained in the first ten amendments relative to freedom of rel...

174. Possible Status Of Territories After Annexation: When thus annexed, however, a district may, according to the recent Insular Cases, find itself, or by subsequent statute be placed, in any one of the following categories. 1. A State of the Union. ...

175. Unincorporated Territory: Such appurtenant, dependent or unincorporated territory is, of course, from the international point of view a part of the United States,1 but is not, as we shall see, a part thereof in the 1 This i...

176. Distinction Between Incorporated And Unincorporated Territories: With respect to the form of government that may be established and maintained by Congress over the Territories, there is no distinction between an incorporated and an unincorporated Territory. In eith...

Chapter XXX. The Insular Cases. 177. Downes V. Bidwell: As a result of the Spanish-American War the United States came into possession of territories over which, because of their location, their economic and industrial status, and especially the character ...

Downes V. Bidwell. Part 2: With reference to the special point at issue, the opinion says: There is in reason, then, no room in this case to contend that Congress can destroy the liberties of the people of Porto Rico by exerci...

Downes V. Bidwell. Part 3: Though declared to be a political question, the necessity of such a power is argued at length by these justices. And, looked at from another point of view, the effect of the principle asserted is equ...

Downes V. Bidwell. Part 4: In the treaty with Spain whereby was confirmed the title of the United States to the Floridas the United States agreed that: The inhabitants of the territories . . . shall be incorporated in the Unio...

178. Position Of Justice Brown: In a separate opinion Justice Brown concurred in the result reached by the four justices whose reasoning we have just been considering, but reached this result by laying down a doctrine that was agree...

Position Of Justice Brown. Continued: Whatever may be finally decided by the American people as to the status of these islands and their inhabitants, - whether they shall be introduced into the sisterhood of States or be permitted to for...

179. Argument Of Dissenting Justices: Four justices (Chief Justice Fuller, and Justices Harlan, Brewer and Peckham) dissented from the judgment rendered in Downes v. Bidwell. According to their view there is no constitutional distinction ...

180. Summary And Criticism Of Downes V. Bidwell: In order fully to appreciate the radical character of the doctrine held by the four justices who concurred with Justice Brown in the judgment in the Downes case, it is necessary clearly to appreciate ...

181. Status Of Hawaii: Hawaii V. Mankichi: In Hawaii v. Mankichi1,1 it was held that the provisions of the Fifth and Sixth Amendments with reference to indictment by a grand jury and trial by petit jury, also did not apply. The facts and quest...

182. Right To Jury Held To Be Not Fundamental: There can be no doubt but that this decision of the court that the right to trial by jury is not a fundamental right, but only one of practice and convenience, states a new principle in American juris...

183. Alaska Incorporated: Rassmussen V. United States: In Rassmussen v. United States,16 decided in 1905, it was held that Alaska had been incorporated into the United States, and, therefore, that the inhabitants were entitled to jury trial. The court did...

184. Other Insular Cases: In Binns v. United States17 it was held with reference to license fees imposed on certain kinds of luxuries, that, though Alaska was an incorporated Territory and, therefore, within the scope of the p...

Chapter XXXI. Citizenship In The Territories. 185. Effect Of Cession Of Territory On Citizenship Of Inhabitants: Whether or not inhabitants of territories ceded by one nation to another necessarily have, according to the principles of International Law, the option of becoming citizens of the annexing State, or r...

186. Treaty Provisions: In all the treaties entered into by the United States whereby territory was acquired, prior to that with Spain in 1898, it was provided either that the inhabitants of the ceded territories remaining t...

187. Statutory Provisions: The citizens of Hawaii have been made citizens of the United States by statute enacted April 30, 1900. The act of June 14, 1902,4 provides that no passport shall be granted or issued to, or verified ...

188. Native Inhabitants Of Porto Rico Not Aliens: Gonzales V. Williams: In Gonzales v. Williams6 it was held that a native of Porto Rico who was an inhabitant of that island at the time of its cession to the United States is not an alien within the meaning of the act o...

Chapter XXXII. Foreign Relations: The Treaty Power: In the discussion of the constitutional power of the United States to extend its sovereignty over new territories and to govern such territories when acquired, the fact has been adverted to and relied...

189. The Federal Power Exclusive: The exclusiveness of the federal jurisdiction in all that concerns foreign affairs is deducible both from the national character of the General Government, and from the express provisions of the Const...

190. The Federal Power All-Comprehensive: The control of international relations vested in the General Government is not only exclusive, but all-comprehensive. That is to say, the authority of the United States in its dealings with foreign po...

191. The Manner Of Exercise Of The Treaty-Making Power: The Constitution6 provides that the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur. It was not un...

192. The Negotiation Of Treaties: With respect to the manner in which treaty-making is, according to the Constitution, to be conducted, the first question that arises is as to the extent to which the Senate may properly participate no...

193. Powers Of The Senate: After the first few years under the Constitution, however, the practice on the part of the President of consulting the Senate with regard to the treaties to be negotiated, became an infrequent one, bu...

194. The "Recognition" Of Foreign Governments: The recognition by the United States of a status of belligerency, or the recognition of the sovereignty and independence of a foreign government are political acts, not subject to judicial review12 an...

195. The Power Of The Senate To Amend Treaties: There would seem to be no question but that, having the power either to approve or to disapprove an international agreement negotiated by the President, the Senate has also the power, when disapprovin...

196. Foreign States Held To A Knowledge Of The Location Of Treaty-Making Powers: Generally speaking, according to rules of international law, one State is not concerned with, and, therefore, not required to be cognizant of, the constitutional law of another State with which it has...

197. Plenary Powers Of Ratification: Whether or not this necessity for senatorial approval to all treaty projects renders it constitutionally impossible for the United States to give to diplomatic agents full powers to ratify treaties ne...

Chapter XXXIII. International Agreements Which Do Not Require The Approval Of The Senate.1. 198. International Agreements Not Requiring Approval By Senate: As has been seen, all treaties to which the United States is a party, in order to become legally binding upon the United States and enforceable in its courts, require, in some stage of their negotiati...

199. International Powers Of The President As Chief Executive: International Correspondence: International correspondence is exclusively in the hands of the President,, or his agent, the Secretary of State.3 Hence it is improper for any international documents to be addressed to, or sent dire...

200. Protocols: The term Protocol, as used in International Law, has ascribed to it several meanings. The two most common of these meanings are: 1. As describing the records of the meetings of commissioners for th...

201. Modi Vivendi: As the term indicates, a modus vivendi is a temporary arrangement entered into for the purpose of regulating a matter of conflicting interests, until a more definite and permanent arrangement can be o...

202. International Agreements Entered Into By The President Under His Military Powers: In the exercise of his powers as Commander-in-Chief of the army and navy the President of the United States, from both necessity and convenience, is often called upon to enter into arrangements which...

203. International Agreements Entered Into, Or Action Taken By The President, By Virtue Of Authority Granted Him By Treaties Previously Ratified: The preceding sections have considered the power of the President to enter into international agreements, and to take action with reference to matters of an international character, by virtue of power...

204. International Agreements Entered Into, Or Action Taken By The President, By Virtue Of Authority Granted Him By Congressional Statute: In many instances Congress has, by statute, authorized the Executive to perform acts of an international character, that is, acts with which other countries have been directly concerned. 13 Yale Law ...

205. Extradition: The greatly preponderant weight of opinion is that, in the absence of authority expressly given him by treaty or statute, the President has not the constitutional right to extradite to a foreign count...

Chapter XXXIV. Congressional Legislation For The Enforcement Of Treaties. 206. Treaties Cannot Appropriate Money: Though all treaties, as declared by the Constitution, are parts of the supreme law of the land, they are not always, in whole or in part, self-exeeutory; but require, in order to be put into full forc...

207. Congress May By Statute Abrogate Treaties: As has been said, treaties, so far as they are self-executory, are the supreme law of the land, and in this respect rest upon a plane of equality with acts of Congress. But upon no higher plane. Resul...

208. Whether The Treaty-Making Power May Modify Or Repeal Laws Enacted By Congress,10: To Congress is given the power by the Constitution to legislate with reference to certain matters. We have already learned that by statute the President has been authorized in a number of instances to...

209. Treaties And Revenue Acts: There would seem to be certainly one exception to the rule that the later treaty abrogates the prior inconsistent statute, and this is in reference to acts for raising revenue. The Constitution expres...

Chapter XXXV. The Constitutional Extent Of The Treaty-Making Power. 210. Treaty-Making Power Granted Without Express Limitations: The treaty-making power is granted in the Constitution without any express limitations as to the subjects to which it may relate. And all treaties, without qualification, are declared to be the suprem...

211. Implied Limitations: No treaty has ever been held unconstitutional in any court, federal or state, in the United States. That there are, however, limits, despite the fact that in no case has there arisen the necessity for...

212. The Treaty-Making Power And The Reserved Rights Of The States: The supremacy of a federal treaty over a conflicting state law, with reference to matters not reserved to the States, has not been questioned since the time it was established that a federal statute, ...

213. Judicial Dicta That Reserved Rights Of The States May Not Be Infringed: Upon this point the declarations of the Supreme Court are not completely satisfactory. In various of its opinions this tribunal has explicitly asserted that the rights reserved by the Constitution fro...

214. Instances In Which Treaties Have Been Upheld Though Infringing Reserved Rights Of The States: Opposing, however, these dicta which have been quoted are a line of cases, in which treaties have been held constitutional with reference to matters which are admittedly not within the power of Congr...

215. The True Doctrine: How, now, are we to harmonize these declarations that the reserved rights of the States may not be infringed by the treaty-making power with the fact that, in specific instances, the invasion of these...

216. Constitutional Limits To The Treaty-Making Power: Assuming, then, that the reasoning which has gone before is correct, it may be asked: Are we led to the conclusion that, in extent, the treaty-making power is without constitutional limits, and may it...

217. Legislative Powers Ancillary To Treaty-Making Powers: One final .point with reference to the extent of the treaty-making power deserves notice. This is that where, for its enforcement, a treaty requires ancillary legislation, Congress would seem to have ...

218. The Treaty-Making Power May Not " Incorporate " Foreign Territory Into The United States: As we have already learned from our examination of the insular case of Downes v. Bidwell,19 the treaty-making power is, according to that decision, without the power to incorporate into the United Sta...

219. The Treaty-Making Power May Alienate Territory Of The United States Or Of A State Or States: In several treaties in settlement of boundary disputes areas previously claimed by the United States as its own have been surrendered to foreign powers. These, however, can scarcely be considered as i...

The Treaty-Making Power May Alienate Territory Of The United States Or Of A State Or States. Continued: Kent in his Commentaries says: The better opinion would seem to be, that such a power of cession of the territory of a State without its consent does reside exclusively in the treaty-making power, un...

220. The Violation Of Treaties: Treaties entered into by the United States may be viewed in two lights; (1) as constituting parts of the supreme law of the land, and (2) as compacts between the United States and foreign Powers. View...

221. Treaties Remain Internationally: Binding upon the United States even when Congress has Refused the Legislation Necessary to put Them into full Force and Effect, or when it Has Abrogated Them by Subsequent Legislation, or when the Sup...

222. The Date At Which Treaties Go Into Effect: In Haver v. Yaker37 Justice Davis speaking with reference to the date at which a treaty goes into effect, says: It is undoubtedly true as a principle of international law, that, as respects the right...

223. The Denunciation Of Treaties: Though the Senate participates in the ratification of treaties, the President has the authority, without asking for senatorial advice and consent, to denounce an existing treaty and to declare it no l...

224. The Construction Of Treaties: As to public rights the courts hold themselves bound by the construction given to treaties by the political departments. As to private rights, however, arising under treaties in force, and even as to ...

Chapter XXXVI. The Amendment Of The Federal Constitution. 225. The Amending Clause: The amendment of the federal Constitution, while politically a subject of great importance, has given rise to few legal adjudications. Article V of the Constitution provides: The Congress, whenever ...

226. Presidential Approval Not Required: The President's approval of a proposed amendment is not required. In Hollingsworth v. Virginia4 the court without argument say: The negative of the President applies only to the ordinary cases of leg...

227. Scope Of The Amending Clause: In scope the amending power is now limited as to but one subject, -namely, the equal representation of the States in the Senate.0 It has by some been argued that even this limitation may be evaded by ...

Chapter XXXVII. Congress - Its Organization: Privileges Of Members. 228. The Name: The first section of Article I of the Constitution provides that all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of...

229. Qualifications For Senators And Representatives: It is required by the Constitution that Representatives shall have attained the age of twenty-five years, have been seven years citizens of the United States,2 and be, when elected, inhabitants of the...

230. Qualifications Determined By Congress: Though essentially a judicial function the conclusive determination as to whether the constitutional qualifications for membership have been met is, by the Constitution, placed in the hands of each of...

231. Disqualification Of Congressmen To Hold Federal Office: The second clause of Section VI of Article I of the Constitution provides that: No Senator or Representative shall - during the time for which he was elected - be appointed to any civil office under ...

232. Ineligibility Of Congressmen To Offices, The Emoluments Of Which Have Been Increased: In 1909 it having been announced that President-Elect Taft intended to nominate Senator Philander C. Knox as Secretary of State, it was pointed out that he was constitutionally ineligible, the salary...

233. Privileges Of Members Of Congress: The first clause of the sixth section of Article I of the Constitution provides: The Senators and Representatives . . . shall in all cases, except treason, felony and breach of the peace, be privileg...

Chapter XXXVIII. Election Of Members Of Congress. 234. Their Apportionment Among The States: The Constitution provides that the House of Representatives shall be composed of members chosen every second year by the people of the several States, and that they shall be apportioned among the Stat...

235. The Mode Of Apportionment: In the first Congress representatives were apportioned among the States according to a rough estimate as to their respective populations. Since that time new apportionments have been based upon the fi...

236. Congressional Districts: The division of the States into congressional districts for the purpose of selecting representatives is left to the state legislatures. Congress has, however, provided that these districts shall be co...

237. Members Of The House Of Representatives: By Whom Elected: The Constitution provides that for the election of Representatives to Congress, the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the sta...

238. The Right To Vote For Representatives Not A Necessary Incident Of National Citizenship: That the suffrage is not a necessary incident of federal citizenship is declared by the Supreme Court in Minor v. Happersett,8 a case in which it was argued that a woman, a citizen of the United Stat...

239. Though Determined By State Law, The Right To Vote For Representatives Is A Federal Right: A distinction is to be made between the right to vote for a Representative to Congress and the conditions upon which that right is granted. In the preceding section it has been shown that the right t...

240. Federal Control Of Congressional Elections: According to the Constitution, The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof; but the Congress may a...

Federal Control Of Congressional Elections. Continued: The majority of the court, however, in their opinion say: There is no declaration that the regulations shall be made either wholly by the state legislatures or wholly by Congress. If Congress does no...

241. Enforcement Clause Of The Fifteenth Amendment: By the second section of the Fifteenth Amendment Congress is given power to enact, laws necessary for the enforcement of the prohibition expressed in the first section. The federal authority thus gra...

242. Disfranchisement Clauses Of The Southern States: As has been before adverted to, most, if not all, of the Southern States in which the negro population is very considerable, have, by means of constitutional amendments or in constitutions newly adopt...

243. The Power Of The United States To Compel The Election By The States Of Representatives To Congress, Senators And Presidential Electors: It has at times been suggested that the States might, if they should so choose, destroy the Federal Government by a refusal to select Presidential Electors, Representatives to Congress and Senators. I...

244. Election Of Senators: The Constitution provides that Senators in the federal Congress shall be chosen by the legislatures of the several States, and that the times, places, and manner of holding elections for Senators and...

245. Popular Election Of Senators: The constitutional provision that Senators shall in each State be elected by the legislature thereof has, in a number of instances, been practically evaded by state laws or party regulations providing...

246. Vacancies In The Senate: It is provided by the Constitution that if vacancies in the Senate happen by resignation or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appo...

247. Vacancies In The House Of Representatives: When vacancies happen in the representation from any State, it is provided that the executive authority thereof shall issue writs of election to fill such vacancies. Vacancies are occasioned by death...

Chapter XXXIX. The Process Of Legislation As Constitutionally Determined. 248. Constitutional Provisions: To a certain extent the manner of conducting business in Congress, and the process of legislation are determined by the Constitution. It is provided that the Vice-President shall be the president of t...

249. Conclusiveness Of The Records Of Congressional Proceedings: In a few instances the validity of laws purported to have been enacted by Congress has been questioned upon the ground that they have not, in fact, been enacted by that body in accordance with the req...

250. Constitutional Force Of Rules Of The House And Senate: In United States v. Ballin was also raised an interesting' question as to the constitutional validity of a certain rule of procedure adopted by the House of Representatives. As to this the court, in ...

251. Revenue Measures: The Constitution provides that all bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills. This provision ...

252. Appropriation Acts: It would seem that the Senate has full power to originate measures appropriating money from the federal treasury. This right has at times been denied by certain members of the House,7 but the House ha...

253. Presidential Participation In Law Making: The duties and powers of the President with reference to the enactment of laws are stated in Clause 2 of Section VII of Article I of the Constitution. This clause reads: Every bill which shall have pa...

254. Resolutions: In the Fifty-fourth Congress, 2d Session, the Senate Committee on the Judiciary was requested to report whether a certain resolution mentioned in a law should be in the form of a joint resolution, a...

255. Parts Of Bills May Not Be Vetoed: In those States whose Constitutions have not expressly given the executive the power to approve parts, and disapprove the remainder of bills, it has been uniformly held that he has not the power. When...

256. Riders: The federal Executive has never attempted the exercise of, or claimed, the right to veto parts of measures submitted to him by-Congress, and to approve the remainder. Because thus bound to accept or r...

257. May Bills Be Signed By The President After The Adjournment Of Congress?: As appear from the constittutional provision which has been quoted, a measure, if not returned to Congress within ten days, Sundays excepted, becomes a law without the President's signature. If, howev...

258. Signing Of Bills During Recess Of Congress: In the Weil case the court argued that the President might sign during a recess of Congress even if he might not sign after its adjournment, and this proposition was upheld by the Supreme Court in La ...

Chapter XL. The General Powers Of Congress. 259. General Powers: In the chapters which are immediately to follow will be taken up seriatim the legislative powers of Congress except in so far as these powers have been considered incidentally elsewhere in this treati...

Chapter XLI. Federal Powers Of Taxation. 260. Taxes Defined: Taxes have been defined by an eminent authority to be burdens or charges imposed by the legislative .power upon persons or property to raise money for public purposes.1 The same author in another wo...

261. Taxation And Eminent Domain: The levying and collection of taxes amounts, of course, to the taking of private property for a public use, but the taxing power is distinct from that of eminent domain. When property is taken in exe...

262. The Extent Of The Taxing Power: The power to tax is, from its very nature, one of the most important powers possessed by the State. Aside from express constitutional limitations, the power places every person, every upation, and all...

263. The Use Of The Taxing Power, Not For Revenue But For Regulation: By definition and by primary purpose a tax is a means whereby a public governing power seeks to secure a revenue. It has been generally held, however, that a tax may be levied avowedly and exclusively...

264. Federal Powers Of Taxation: By section VIII of Article I of the Constitution, Congress is given the general power to lay and collect taxes, duties, imposts and excises.14 ...

265. "Tax," " Duty," " Impost," And " Excise " Defined: Duty and impost have a broad signification which makes them practically synonymous with the general term tax; more generally, however, they are given a narrower meaning according to which they become ...

266. Limitations Upon The Federal Taxing Power: The power of taxation given to the Federal Government is comprehensive and complete, embracing all possible subjects and modes of taxation except in so far as the Constitution, in other clauses, expre...

267. Due Process Of Law And Taxation: We have already seen that the taking of private property by the State in exercise of the taxing power is not brought within the constitutional requirement, applicable in the case of property taken und...

268. Taxation Must Be For A Public Purpose: A tax being in the eyes of the law an enforced contribution upon persons or property to raise money for a public purpose, it follows that where this public purpose is absent, the contribution sought t...

269. Power Of Congress To Appropriate Money: A parity of reasoning would seem to provide the principle that inasmuch as taxes must be for a public purpose, an appropriation of the proceeds of taxes should be for a public purpose. Furthermore, it...

Power Of Congress To Appropriate Money. Continued: If, then, Monroe continues, the right to raise and appropriate the public money is not restricted to the expenditures under the other specific grants according to a strict construction of their pow...

270. Equality In Taxation: The Fourteenth Amendment requires upon the part of the States that they shall not deny to any persons within their several jurisdictions the equal protection of the laws, and this obligation is, of co...

271. Uniformity In Taxation: Granting the right of the legislature to classify persons and property for purposes of taxation, the requirements of due process of law and of the additional provision found in the federal Constitutio...

272. What Constitutes Uniformity Throughout The United States?: In the Head Money Cases, speaking with reference to the requirement of the federal Constitution that all duties, imposts, and excises shall be uniform throughout the United States, the court say: The...

273. State Inheritance Taxes: So-called inheritance taxes, that is to say, taxes collected from persons receiving property by inheritance, are levied in many of the civilized States of the world. In the United States they have sev...

274. Federal Inheritance Taxes: Upon several occasions inheritance taxes have been resorted to for revenue by the Federal Government By the stamp act of July 6, 1797, a duty was levied on receipts for legacies and shares of personal...

275. Protective Tariffs: The constitutionality of a protective tariff, that is, a system of customs duties levied on foreign imports so arranged as to furnish incidental protection to home industries, though questioned in ear...

276. Bounties.51: The constitutionality of bounties has never been squarely passed upon by the Supreme Court. Their validity was questioned in 47 178 U. S. 130; 20 Sup. Ct. Rep. 775; 44 L. ed. 1000. 48The court say: ...

277. Export Duties: Among the express limitations upon the powers of Congress, enumerated by the Constitution is that which provides that no tax or duty shall be laid on articles exported from any State.55 In another c...

Export Duties. Continued: To come within the definition of an export tax, it has been held that the tax must be one levied upon the right to export, or upon goods because of the fact that they are being exported or are intend...

278. Direct Taxes.70: The Constitution provides that capitation and other direct taxes levied by Congress shall be apportioned among the States in proportion to their respective populations. In a number of instances the co...

279. Income Tax Case - Pollock V. Farmers' L. & T. Co: The foregoing line of cases, concluding with the emphatic assertion of a unanimous court in Springer v. United States, justly gave rise to the general opinion that the only taxes to be deemed direct t...

280. The Federal Corporation Tax Of 1909: Section 38 of the Tariff Law of 1909 contains the provision that every corporation organized for profit and having a capital stock represented by shares . . . shall be subject to pay annually a speci...

281. Federal Inheritance Taxes Not Direct: The constitutional definition of a direct tax was again raised in Knowlton v. Moore85 with, reference to the constitutionality of the inheritance taxes levied by the War Revenue Act of 1898. The court...

282. Federal Taxation And Due Process Of Law: Hearing Required: Due process of law requires that in the case of an ad valorem tax an opportunity shall be given the taxpayer to appear and give evidence as to the proper valuation of the property which is assessed.87...

283. Hearing Before Administrative Tribunal Sufficient: It is not necessary that the hearing thus required in the case of ad valorem taxes should be before a court of justice. The hearing may be had and, in fact, is usually had, before an administrative bo...

284. Summary Modes Of Collection: For the collection of taxes, as well as in the appraisement of property for taxation, summary modes of procedure may be had, the justification being that without such means no government could maintai...

285. Notice: Due process of law in matters of taxation does not require the same kind of notice as is required in a suit of law, or in proceedings for taking private property under the power of eminent domain. No ...

286. Borrowing Power Of The United States: Legal Tender: The Federal Government is given power to borrow money on the credit of the United States. The power thus given is free from limitations. In the draft of the Constitution reported by the Committee o...

Chapter XLII. Interstate And Foreign Commerce. 287. The Commerce Clause: Its Importance: In this chapter will be considered the respective powers of the Federal Government and of the States with reference to Interstate Commerce. The constitutional law governing this subject is very simila...

288. Purpose Of The Commerce Clause: There can be but little question that the chief and possibly the entire purpose of,the Commerce Clause was, with reference to interstate commerce, to empower the federal authorities to prevent the Sta...

289. Commerce Defined: Transportation Essential: Commerce has frequently been defined by the courts as intercourse. But not all intercourse is commerce. To render intercourse commerce there must be present the element of transportation, whether of p...

290. The Instrumentalities Of Commerce: The powers . . . granted by [the commerce clause] are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace wi...

291. Commerce Embraces Water Navigation: Commerce includes navigation of the water, and, where this navigation is for the transportation of persons or goods to or from foreign countries or among the States, it is brought within the authority...

292. The Transportation Of Persons Is Commerce: That the transportation of persons is commerce was at first denied by Justice Barbour in the opinion which he rendered in New York v. Miln,11 but this doctrine was at once overruled, and has not since...

293. Bills Of Exchange Not Articles Of Commerce: In Nathan v. Louisiana13 the court lay down the doctrine that the buying and selling of foreign bills of exchange, while to be sure an aid to, and an instrument of, commerce, is not itself commerce. ...

294. Insurance Not Commerce: The writing, selling, and transmission of insurance policies has been held not to be commerce. That the business of fire insurance is not interstate commerce was decided in Paul v. Virginia.15 inters...

295. Lotteries: By act of March 2, 1893, entitled An act for the suppression of lottery traffic through national and interstate commerce and the postal service, subject to the jurisdiction and laws of the United Sta...

296. Bearing Of The Lottery Decision On Insurance: The holding by the court that lottery tickets are articles of commerce and may become articles of interstate commerce, has of the agents who are to transport them. The mere fact that goods are manufac...

297. Commerce Does Not Include The Production Of The Commodities Transported: In a series of most important decisions it has been held that commerce does not begin until the goods intended for purchase. sale, or exchange in another State have begun their trip thither. That is t...

298. Intent To Export Not Controlling: The fact that goods are manufactured for export does not render their manufacture an element in the interstate or foreign commercial transaction. 22 U. S. v. E. C. Knight Co., 156 U. S. 1; 15 Sup. Ct...

299. Interstate Commerce Includes The Sale Of The Articles Imported: It has been seen that interstate commerce does not begin until, by some definite act, the goods have started upon their trip outside the State of origin. As to the termination of interstate transporta...

300. The Original Package Doctrine: From the foregoing sections it has appeared that the State's authority over articles brought in from the other States does not attach, except for purposes of taxation, until the articles so brought in...

301. Difficulties In Applying Original Package Doctrine: The original package doctrine, simple in itself, becomes at times difficult, and, indeed, impossible of strict application be-cause it is not easy to determine what is to be considered the original pa...

Difficulties In Applying Original Package Doctrine. Continued: The court say: The case under consideration is really the first one presenting to this court distinctly the question whether, in holding that the State cannot prohibit the sale in the original packag...

302. Summary: General Definitions Of Commerce: By way of summary of what has gone before, the following general definitions of commerce may be given. In County of Mobile v. Kimball40 the court declare: Commerce with foreign countries and among t...

303. Exclusiveness Of Federal Control Over Interstate Commerce: The federal authority over interstate commerce is not in terms made exclusive, and the courts have at times varied their views as to the extent to which an exclusiveness is to be deemed implied. From ...

304. Gibbons V. Ogden: In this case it was held that the grant by the State of New York to an individual of an exclusive right to navigate its waters with steam vessels had no constitutional validity in so far as interstate...

305. New York V. Miln: In New York v. Miln,48 decided in 1837, the relation of the States' police powers to the regulation of commerce was carefully considered. In this case a state law was upheld which required masters of ...

306. License Cases: The next important construction of the extent of the federal authority over commerce was that given in the group of cases known as the License Cases,49 decided in 1846. These eases involved state laws...

307. Passenger Cases: Two years after the License Cases, the court was again called upon, in the so-called Passenger Cases,50 to consider the regulative powers of the States with reference to foreign and interstate commerc...

308. Cooley V. Port Wardens: In Cooley v. Port Wardens,51 decided in 1851, the Supreme Court, three justices dissenting, accepted the principle that had been suggested by Webster and approved by Justice Woodbury, and upheld a pil...

309. Subjects Of Local Regulation By The States: Among the more important subjects which, it has been held, may, in the absence of federal legislation, be controlled by the States, because they lend themselves to local regulation, are ferries, bridg...

310. The Police Powers Of The States And Commerce: Very closely related to the authority of the States to legislate with reference to commercial matters of a local character, is the power of the States, in the exercise of their police powers to enact ...

311. Applications Of The Doctrine Of The Police Powers Of The State In Their Relation To Interstate Commerce: The general principles governing the exercise of police powers by the States in their relation to interstate commerce have been stated. It remains but to enumerate certain of the applications which, i...

312. State Regulation Of Interstate Trains: A series of cases have been decided by the Supreme Court with reference to the validity of state laws seeking to control the manner of running and operating trains. When the provisions of these laws h...

313. State Inspection Laws: State inspection laws in their application to interstate commerce are sustained in so far as they are reasonable regulations in behalf of the health, safety, and morality of the inhabitants of the Sta...

314. State Quarantine Laws: The enactment and enforcement by the States of quarantine laws, whether with reference to persons or to property, has given rise to numerous cases in which their constitutionality as tested by the com...

315. Federal Quarantine Laws: No legislative power with reference to quarantine is specifically given to the Federal Government by the Constitution, but that government has very broad powers on the subject as incidental to its con...

316. State Game Laws: Wild game within a State is not, until reduced to possession, private property, but belongs to the State, which is conceded to have a police .power to regulate the times and methods by which it may be...

317. The States May Absolutely Exclude From Their Borders Only Such Articles As Are Intrinsically Not Merchantable Or Not Legitimate Articles Of Commerce: In the exercise of their police powers the States may absolutely exclude from their borders only such articles as are in themselves not merchantable or legitimate articles of commerce. In Bowman v. C...

318. Liquor Legislation: In Mugler v. Kansas6 certain liquor laws of the State were held not to violate the due process clause of the Fourteenth Amendment. In the License Cases7 the constitutionality of the liquor laws of a ...

319. The Wilson Act: The position taken by the Supreme Court in the Bowman and succeeding cases very seriously crippled the powers of the States to control the sale of intoxicating liquors within their borders. That their...

320. Construction Of The Wilson Act: The Wilson Act permits the State to control the sale of imported intoxicating liquors only when such control is exercised as a police measure. In Scott v. Donald12 the court held that the South Carol...

Construction Of The Wilson Act. Part 2: In Adams Express Co. v. Iowa,17 however, the court declared the question as to when title to the liquors passed to be irrelevant, the material point being whether, in point of fact, interstate commerc...

Construction Of The Wilson Act. Part 3: In Delamater v. South Dakota24 the application of the doctrine declared in Vance v. Vandercook is limited in its application to orders for liquor placed by the individual consumer, and the authority o...

321. Proposed Legislation: Numerous measures have been proposed in Congress the aim of which has been to empower the States to exercise full jurisdiction over interstate shipments of intoxicating liquors, immediately upon their...

322. Oleomargarine Cases: In Powell v. Pennsylvania29 the court held that a state law which, as a police regulation, laid down certain rules for the manufacture and sale of oleomargarine, was not, as alleged, a violation of th...

323. The States And Foreign Corporations Doing An Interstate Commerce Business: The right to engage in interstate commerce it has often been declared is a federal right, and is, therefore, independent of state control. In Vance v. Vandercook,34 as has already been referred to, th...

324. Foreign Corporations "Doing Business" Within The States: Though, as we have seen, a State may not prevent foreign corporations from carrying on interstate commerce business within its borders, it may prevent them from doing business generally as a corporati...

325. What Constitutes "Doing Business " In The State: It is often a very difficult matter to determine when a foreign corporation may be said to be doing business within the State, as a corporation, or simply engaged in individual interstate commercia...

326. State Taxation And Interstate And Foreign Commerce: It has already been shown that the States are permitted, in the exercise of the powers reserved to them, substantially to affect interstate and foreign commerce, so long as this interference is an ind...

327. License Taxes: A license tax on an importer, or on the business of importing goods from another State, is a taxation of, and therefore an unconstitutional regulation of interstate commerce. This was early determined...

328. Taxation Of Foreign Corporations: The property of foreign corporations may be taxed as such by the State in which the property is situated. It may indeed be subjected to a heavier tax than other like property in the State, if the Stat...

329. State Tax Law Must Not Discriminate Against Products Of Other States, Or Against Companies Doing An Interstate Commerce Business: Tax laws, or, indeed, any other laws of a State discriminating against non-resident traders or against the products of other States are void as interfering with interstate commerce. 60 136 U. S. 104;...

330. Drummers: The leading case establishing the doctrine that the negotiation by sales-agents of sales of goods which are in another State for the purpose of introducing them into the State where the nego tiation i...

331. Peddlers: As has been before seen, when property which has been introduced into a State has become commingled with the other property of that State, it ceases to enjoy the protection of the Comby the agent of a...

332. State Taxation Of Articles Of Commerce: In Brown v. Maryland,86 decided in 1827, it had been held that a state law requiring all importers of foreign goods, and others selling the same by wholesale to pay a license fee was repugnant to the ...

333. State Taxation Of Goods In Transit: A difficulty which has not infrequently arisen with reference to the amenability of articles of interstate commerce to state taxation is the question when an article may fairly be said to be in transi...

334. State Taxation Of Persons In Transit: The right of persons to travel from State to State,95 though apparently not strictly upheld during the early years of the Constitution,96 has been, since the middle of the last century, well establish...

335. Taxation Of Property Of Interstate Carriers: The right of the States to tax property, as such, of companies doing an interstate commerce business, is determined by the same principles as those stated in Union Pacific R. R. Co. v. Peniston4 with ...

336. Assessment Of Property Of Interstate Carriers For Purposes Of Taxation: In Henderson Bridge Co. v. Kentucky6 it is held that, in assessing for taxation the property of a bridge company owning and operating a bridge across the Ohio river, connecting the shores of Kentucky ...

337. Vessels: Roiling Stock: Unit Of Use Rule: Vessels, for purposes of taxation, have, generally speaking, a situs at their home ports, that is, where registered, irrespective of where they are doing business. Where, however, it appears that a bo...

338. State Taxation Of Receipts From Interstate Commerce: A state tax directly upon and measured by the amount of freight carried is, as to interstate freight, a tax on interstate commerce and as such void.18 In State Tax on Railway Gross Receipts,19 howeve...

339. Taxation Of Net Receipts: It would appear that the same rules apply to the state taxation of net receipts of companies doing an interstate commerce business as govern in the case of the taxation of gross receipts. It may, howe...

340. Charter Provisions: The State which grants a charter to a railway corporation may, as a condition precedent to the grant, stipulate that the company shall pay into the State's treasury a certain percentage of its receipt...

341. Taxation Of Capital Stock Of Interstate Commerce Companies: Because of the control which a State has over corporations of its own creation, it is held that it may tax the entire capital stock of domestic corporations, even though some of the property of those ...

342. State Regulation Of Carriers: In the absence of congressional regulation the common law of the States controls with reference to the so-called common-law rights, duties, and responsibilities of interstate carriers. These rights an...

343. State Regulation Of Railway Rates: The general constitutional power of the States to regulate the rates of public service corporations, including railway and other transportation corporations, whether of domestic or foreign incorporati...

344. Routes Running Outside The State But With Both Terminals Within The State: It is established that a State may not, without violating the Commerce Clause, fix and enforce rates for the continuous transportation of goods between two points within the State, when a part of the ...

Chapter XLIII. Federal Legislative Power Over Interstate Commerce. 345. Federal Legislation: In the chapters which have gone before, the extent of the powers of the States with reference to interstate commerce has been considered. In the present chapter we shall have to deal with the extent o...

346. Federal Police Regulations: Congress has enacted various laws for the regulation of interstate and foreign commerce, which, so far as their substance is concerned, may properly be denominated police regulations. Among them are t...

347. Prohibition Of Interstate Commerce: That the power to regulate includes the power to prohibit the interstate transportation of at least certain classes of commodities has been placed beyond question by the decision of the court in Champ...

348. Federal Regulation Of Child Labor: The possible application of the doctrine laid down in the Lottery Case is excellently exemplified in an attempt that has been made, relying upon it, to support the constitutionality of a federal law e...

349. The Federal Employers' Liability Law Of 1906: In 1906 Congress passed an act entitled An Act Relating to Liability of Common Carriers in the District of Columbia and Territories and Common Carriers Engaged in Commerce between the States and betw...

350. Employers' Liability Law Of 1908: In order to meet the constitutional objections raised by the Supreme Court to the act of 1906, Congress in 1908 enacted a measure similar to the earlier law except that its provisions are expressly co...

351. Federal Safety Appliances Acts: Congress has, by a series of acts, beginning with that of 1893, sought to increase the safety of trains crossing state lines, by requiring that they shall be equipped with certain approved safety devi...

352. Federal Eight Hour Law: By act of 1007, entitled An Act to Promote the Safety of Employees and Travellers upon Railroads by Limiting the Hours of Service of Employees Thereon Congress has undertaken to determine the number...

353. Trades Unions And Interstate Commerce; Federal Legislation With Reference To: By an act of October 1, 1888, later repealed and replaced by that of June 1, 1898, Congress has made provision for the arbitration of disputes between interstate carriers and their employees. The thre...

354. Regulation Of Interstate Railroad Rates: The regulation of railway rates may be directed either to the prevention of discriminatory treatment as between places or shippers, or to the prevention of unreasonably high charges for service. As to...

355. The Right Of Congress To Delegate Its Rate-Making Power To A Commission: That a legislature may delegate to a commission as its agent the application to specific cases of a rule legislatively declared, is established.24 There would thus seem to be no constitutional difficu...

356. The Federal Anti-Trust Act.26: By the Interstate Commerce Act of 1887 interstate railroads are forbidden to form combinations or pools for the maintenance of rates, whether for freight or passenger traffic. By the act of July 2, ...

357. In Re Greene: In Re Greene,28 a case involving the status of the Distilling and Cattle Feeding Company, which controlled 95 per cent. of distilled liquors in the United States, the court held that the mere magnitud...

358. United States V. E. C. Knight Co: The first case, to reach the Supreme Court was the so-called Sugar Trust Case of United States v. E. C. Knight Co.30 In this case it was contended by the Government that the acquisition by the Americ...

359. United States V. Trans-Missouri Freight Association: In United States v. Trans-Missouri Freight Association34 the act was held to apply to railroads, and moreover, that contracts or combinations in restraint of trade were by the act prohibited, whether ...

360. United States V. Joint Traffic Association: In United States v. Joint Traffic Association36 the doctrine of the Trans-Missouri Freight Association case was affirmed. In this case the constitutional power of Congress to prohibit all contracts in...

361. Hopkins V. United States: In Hopkins v. United States38 it was held that a live stock commission merchant whose place of business was a certain stock yard and who there bought and sold stock for others, was not engaged in inte...

362. Anderson V. United States: In Anderson v. United States,40 decided the same day as the Hopkins ease, an association of dealers in live stock, providing by its rules that its members should not transact business with non-members...

363. Addyston Pipe & Steel Co. V. United States: In a series of cases, beginning with Addyston Pipe & Steel Co. v. United States,41 the court has shown that combinations or agreements between manufacturers or dealers do not come within the protectio...

363. Montague V. Lowry: In Montague v. Lowry42 was held illegal as a restraint of interstate commerce an association of dealers in the State of California and manufacturers in other States, with the purpose of controlling th...

364. Northern Securities Case: In the so-called Merger Case - Xorthern Securities Co. v. United States43 - the act of 1890 was held applicable to a combination of stockholders in the competing interstate railway companies, the aim,...

365. Beef Trust Case: The so-called Beef Trust Case - Swift & Co. v. United States46 - decided in 1905, added no new principle to. the law of interstate commerce. The act of 1890 was held to have been violated by a combina...

366. Danbury Hatters' Case: In Loewe v. Lawler49 the court took a very advanced ground as to what will be construed to be an interference with interstate commerce. In this case the act of 1890 was held to have been violated by a...

367. Other Cases: In Shawnee Compress Co. v. Anderson53 it was held that while a company may, in connection with the sale of its business and good-will, covenant not to re-enter the business for a time or within a terr...

368. The Commodities Clause Of The Hepburn Act Of 1906: By section 1 of the so-called Hepburn Railway Rate Act of 1906 it is provided that From and after May first, nineteen hundred and eight, it shall be unlawful for any railroad company to transport fr...

369. Federal Control Of Corporations Under The Commerce Clause: The Federal Government has the undoubted power itself to own and operate, or to incorporate companies for the construction and operation of roads, bridges, and other instrumentalities of interstate co...

370. Power Of The Federal Government To Charter Companies To Do A Manufacturing Business Within The States: It has been argued that the Federal Government has the constitutional power to charter companies not only to do an interstate carrier business, but, as incidental thereto, to manufacture and produce t...

371. Federal Permission To State Manufacturing Companies To Engage In Interstate Commerce: The denial to Congress of the power to charter companies empowered to do a manufacturing business within the States does not carry with it the denial of a power to require of individuals or of state-c...

372. Federal Taxing Power And Interstate Commerce: A federal tax may be laid upon interstate commerce, its instrumentalities, the articles carried, or the privilege of engaging in it, either as a revenue measure or as a means of regulation. If the tax...

373. Federal Control Of Navigable Waters: In a later chapter will be considered the federal powers, both judicial and legislative, which flow from the provision of Section II, Article III of the Constitution, which provides that the federal j...

374. Federal Control Of Foreign Commerce: The same clause which gives to Congress the power to regulate commerce among the States extends the power to commerce with foreign nations. It has been declared that the power to regulate commerce am...

375. Commerce With The Territories And With The District Of Columbia: The Commerce Clause contains no reference to trade between the States and the Territories or the District of Columbia, or the Territories inter se. In general, however, the courts have treated the Dis...

376. Commerce With Indians: So long as the Indians form distinct communities occupying clearly defined territories, even though those territories be within the borders of the States, intercourse with them is a matter subject to ...

Chapter XLIV. Other Powers Of Congress. 377. Naturalization: Clause 4 of Section VIII of Article I of the Constitution gives to Congress the power to establish an uniform rule of naturalization. This power has already been considered in an earlier chapter de...

378. Bankruptcy: Definition Of: The same clause which gives to Congress the power to establish an uniform rule of naturalization, authorizes that body to establish uniform laws on the subject of bankruptcies throughout the United S...

379. Federal Power Not Exclusive: In Sturges v. Crowninshield,4 affirmed in Ogden v. Saunders,5 the court held that the power to establish bankruptcy laws is not exclusively vested in Congress, but may be exercised by the States in th...

380. State Bankruptcy Laws And The Obligation Of Contracts: The right of the States, in the absence of conflicting congressional legislation, to enact bankruptcy laws is limited by the provision of the Constitution that no State shall pass any law impairing th...

381. State Laws Have No Extraterritorial Force: In Ogden v. Saunders was laid down the important principle that a certificate of discharge under a state law cannot be pleaded in bar of an action brought by a citizen of another State in the courts o...

382. Uniformity: It is, however, required of national bankrupt laws that they shall be uniform, The uniformity is a geographical one. The laws must, in all their provisions, be equally applicable to all of the States,...

383. Due Process Of Law: Provisions for voluntary proceedings in bankruptcy are not in violation of the due process of law clauses of the Fifth and Fourteenth Amendments, even when, as in the federal act of 1898, there is no ...

384. State Laws Suspended But Not Annulled By Federal Bankruptcy Law. Effect Of The Law Of 1898: The enactment of a national bankrupt law does not operate to annul state laws on the same subject, but simply to suspend their operation so long as the national regulations are in force. Upon the repe...

386. Weights And Measures: With reference to standards of weights and measurements, the rule is otherwise, the States being recognized to have power to legislate in the absence of congressional action. Counterfeiting. ...

387. Counterfeiting: Congress is expressly given the power to provide for the punishment of counterfeiting the securities and current coin of the United States.There is little doubt, however, that, had the power not bee...

388. The Passing And The Uttering Of Counterfeit Coins Distinct Offenses: The passing of counterfeit coins or securities is an offense distinct from that of coining or uttering them, but the power to punish the former is implied in the authority to forbid the latter. Wit...

390. Constitutional Views Of Monroe: In early years the view was maintained by some that by this grant Congress was given the power only to designate the routes over which the mails should be carried, and the post-offices where it should...

391. Federal Power To Provide Postal Agencies: In considerable measure Congress has in its legislation kept within the limits of the power conceded to it by Monroe, but, when it has thought it wise, it has not hesitated to overstep them, and its c...

392. Exclusion From The Mails: Freedom Of Press: Searches And Seizures: Ex parte Jackson. In Ex parte Jackson29 was questioned the constitutional power of Congress to exclude lottery tickets from the mails, and in determining this the court found it necessary to consider ...

393. Ex Parte Rapier: In Ex parte Rapier31 it was again argued that Congress was without the constitutional power to forbid the use of the mails to lottery tickets, circulars, etc., but this time upon the ground that Congr...

394. Power Of The States To Exclude From Their Borders Objectionable Mail Matter: It will be observed that the cases Ex parte Jackson and In re Rapier go no further than to sustain the power of the United States to exclude from the mails matter which it deems objectionable. They do...

395. States May Not Maintain Postal Agencies: From the opinion rendered in the Ex parte Jackson and other cases, it would appear that the States are without the power to conduct postal operations over post-roads in competition or conflict with th...

396. Fraud Orders: In a later chapter dealing with administrative powers will be discussed the extent of the discretionary power that may be granted the Postmaster-General and his agents in excluding matter from the mai...

397. Protection Of The Mails: In Re Debs: In Re Debs34 was presented the question whether, for the protection of the mails, as well as of interstate commerce, the Federal Government may, by the use of judicial restraining orders or the employ...

398. Patents And Copyrights. Patents: Congress is given the power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries...

399. Copyrights: Trade-Marks: In the Trade-Mark Cases40 it was held that the ordinary trademark has no necessary relation to invention or discovery, and, therefore, its use may not be regulated by Congress under the power to provi...

400. Piracies, Etc: The power of the United States to define and punish piracies and other crimes committed upon the high seas, and offenses against the law of nations, may be supported upon three constitutional grants, ...

401. Declaration Of War: As is well known the existence of war, that is, a contest the parties to which have been recognized as belligerents, is a status that gives rise to numerous legal consequences to the parties involved,...

402. Civil War: That, under our Constitution, the United States may begin war against a foreign country only by a declaration issued by Congress has never been disputed, the Constitution expressly providing that Cong...

403. Letters Of Marque And Reprisal And Captures On Land And Water: Congress is authorized by the Constitution to grant letters of marque and reprisal and to make rules concerning captures on land and water. It has been held that letters of marque may be granted to p...

404. Other Military Powers: The express powers given to Congress with reference to the raising and supporting of armies, the organizing, arming, disciplining, and calling forth the militia to execute the laws of the Union, and, ...

Chapter XLV. Prohibitions On Congress. 405. Absolute And Qualified Prohibitions: In the chapters which have gone before, the powers of Congress have been considered. In connection therewith have been discussed the express and implied limitations which restrain Congress in the exer...

406. Importation Of Slaves: The provision of the Constitution that the migration or importation of such persons as any of the States now existing shall think proper and admit shall not be prohibited by the Congress prior to the...

407. Suspension Of Habeas Corpus: The provision that the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it, is considered in a later chapter dealing with Marti...

408. Bills Of Attainder: Clause 3 of Section IX of Article I provides that No bill of attainder . . . shall be passed. This clause has given rise to an inconsiderable number of judicial determinations. The principal case i...

409. Ex Post Facto Legislation: The same clause of the Constitution which prohibits bills of attainder, declares that no ex post facto legislation shall be passed. In the early case of Calder v. Bull10 the prohibition was declared ...

410. Appropriations: It is provided that no money shall be drawn from the treasury but in consequence of appropriations made by law. This restriction, it is apparent, operates rather upon the officials of the Treasury ...

411. Limitations With Respect To The Definition And Punishment Of Crime: By various provisions of the Constitution as originally adopted, and in the Amendments thereto, restrictions have been placed upon the Federal Government with reference to the definition of and trial ...

412. Jury Trial: By Article III, Section II, Clause 3, it is provided that The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the State where the said crimes s...

413. Jury Trial In The District Of Columbia And The Territories In Callan V. "Wilson20: It was held that the right of jury trial necessarily applied within the District of Columbia and the Territories.21 As to this the court say that this right was demanded and secured for the benefit ...

414. Unanimity: In Springville v. Thomas22 it was claimed that the territorial legislature of Utah was empowered by the organic act [of Congress] September 9, 1850, to provide that unanimity of action on the part of ...

415. Twelve Jurors Required: This declaration in Springville v. Thomas is quoted with approval in Thompson v. Utah,23 the court adding: It is equally beyond question that the provisions of the National Constitution relating to ...

416. Courts And Actions In Which Jury Not Required: The right of trial by jury provided for in the Constitution applies only in the federal courts, and in them it applies only to those cases in which, by common practice at the time the Constitution was...

417. Petty Offenses: It has been generally recognized by courts, federal as well as state, that the guarantee of the right to a trial by jury does not apply to the petty offenses which, at the time the Constitution was ad...

418. Infamous Crimes: The provision of the Fifth Amendment that no one shall be held to trial for a criminal offense unless on a presentment or indictment of a grand jury, is expressly limited to capital or other infamous ...

419. Waiver Of Constitutional Guaranties: The law governing the waiver by the accused of his constitutional right to a trial by jury in criminal actions, or to a trial by than twelve jurors, and, indeed, the waiver of any constitutional guara...

420. Right To Jury Trial Not Fundamental: In the majority opinion in Hawaii v. Mankichi41 the rather surprising statement is made that grand and petit juries in criminal proceedings are not fundamental in their nature, but concern merely a m...

421. Speedy Trial: The Sixth Amendment secures to the accused a speedy as well as a public trial. This provision has received very little discussion in the federal courts, and, so far as the author is aware, no case in...

422. Public Trial: The Constitution expressly provides that criminal trials shall be publicly conducted, and, indeed, it would seem that publicity has been a common-law incident of trials for crime. Many of the state co...

423. Double Jeopardy: It is provided by a clause of the Fifth Amendment that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. Cases may occur in which the same act may render th...

424. What Constitutes Jeopardy: What constitutes jeopardy is, in accordance with the general principle of constitutional construction, to be determined by the usage of the word and the custom of the common law at the time the Cons...

425. Jeopardy And The Right Of Appeal: It is established that in criminal cases, the State has no right of appeal where the accused may fairly be said to have been placed in jeopardy. This, the doctrine of the common law, has been repeated...

426. The Constitutionality Of Appeal By The Government In Criminal Cases: In the dissenting opinion filed by Justices Holmes, White and McKenna, in Kepner v. United States,63 it is argued that it is within the constitutional power of Congress to provide for a writ of error ...

427. Self-Incrimination: Immunity From, Not A Requirement Of Due Process Of Law: By the Fifth Amendment it is provided: Nor shall any person be compelled, in any criminal case, to be a witness against himself. The guaranty thus furnished is one independent of the guaranty of du...

428. Self-Incrimination: What Constitutes: If the answer will tend merely to disgrace but not to incriminate the witness, the privilege does not apply. If, however, the answer is one which can have no bearing upon the case except to impair the...

429. Right May Be Waived: If the witness waives his privilege, and discloses his criminal connections, he may not stop, but must make a full disclosure of the facts regarding which he is interrogated.72 69 See authorities cit...

430. When Right May Be Claimed: In 1807 in Burr's Trial73 Chief Justice Marshall lays down the broad doctrine which has been generally acquiesced in, that where the witness avers under oath that the answer to the question which has ...

431. To Compel Testimony Statutory Immunity Must Be Complete: Where the right to compel testimony is based upon a statute granting immunity from subsequent prosecution, the immunity granted must be complete. Absolute protection against later criminal actions for...

432. Corporations Not Protected Against Testimony By Their Agents: In Hale v. Henkel79 it was urged that while the immunity statute might protect the individual witness, it would not protect the corporation of which he was the agent and representative. To this the co...

433. Private Books And Papers: The immunity of the individual from compulsory self-incrimination includes the right to refuse to produce private books and papers which will have, or will tend to have, this effect.80 But it does not...

434. Unreasonable Searches And Seizures: The question as to the right of the government to compel the production of books and papers is closely connected with the provision of the Fourth Amendment with reference to unreasonable searches and ...

435. Corporations Protected: In Hale v. Henkel84 the court, while refusing to hold that corporations are protected by the Fifth Amendment from incrimination by the compulsorily obtained papers and testimony of their agents, go on...

436. Boyd V. United States: The most careful consideration which the Fourth Amendment has received by the Supreme Court is that contained in the opinion rendered in the case of Boyd v. United States.83 In this case the intimate...

437. Cruel And Unusual Punishments: The provision of the Eighth Amendment that excessive bail shall not be required, nor excessive fines imposed, nor cruel .and unusual punishments inflicted has given rise to few adjudications in the...

438. Treason: The power of Congress with reference to both the definition and punishment of treason is limited by Section III of Article III of the Constitution. The three clauses of this section provide as follows...

439. May Be Committed By Aliens: Treason is a breach of allegiance, and it will be observed that the statute restricts the definition of the offense to persons owing allegiance to the United States. This allegiance may be one of ful...

440. Domicile Not Necessary: In this case the alien was domiciled in the United States, but it would not appear that domiciliation is necessary as a basis for holding the alien liable for treason, if the act of treason be committ...

441. No Distinction In United States Between High And Petit Treason: The distinction between high and petit treason is not known to American constitutional law.95 Or rather, under our law, petit treason no longer exists. It is now simply murder. ...

442. Misprision Of Treason: Misprision of treason is denned and its punishment provided for by Section 5333 of the Revised Statutes.96 The constitutionality of this provision was considered and not questioned in United States v...

443. What Constitutes Treason: By the definition of the Constitution treason to the United States may be charged only in cases where the accused has levied war against the United States, adhered to its enemies, or given them aid an...

444. Enlistment Of Men Does Not Amount To Levying War: The most careful consideration of the definition of treason by the Supreme Court is that given in Ex parte Bollman.1 In its opinion in that case the court say: To constitute that specific crime for w...

445. Treason Against A State Of The Union: The punishment of the crime of treason against the United States is placed exclusively within the control of the federal authorities. Treason against an individual State of the Union, however, is puni...

446. Offenses, Other Than Treason, Against The Existence And Operations Of The Federal Government: The Federal Government, though restrained by the Constitution, with reference to the definition of treason, has the general power to define and punish as it sees fit all acts against its existence or ...

447. Jury Trial In Civil Suits: By the Seventh Amendment it is provided that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a ...

448. Waiver Of Jury In Civil Cases: The right to a jury trial in civil cases, whatever the value in controversy, may be waived. No objection to a waiver was made in the early case of Parsons v. Armor;7 nor later in Bamberger v. Terry ;8...

449. Religious Freedom: The provision of the First Amendment that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, has given rise to comparatively little litigati...

450. Freedom Of Speech And Press: The prohibition laid upon Congress by the First Amendment that it shall make no law abridging the freedom of speech, or of the press has given rise to very few pronouncements by the Supreme Court, a...

451. Seditious Libel: Thus it would seem beyond question that Congress may define and punish seditious libel, provided the prohibition extends to acts which clearly tend to sedition. The famous Sedition Act of 1798, never ...

452. The Right Peaceably To Assemble And Petition: By the First Amendment the right of the people is guaranteed peaceably to assemble, and to petition the government for redress of grievances.Almost the only discussion of this provision by the Supre...

453. The Right To Bear Arms: By the Second Amendment it is provided 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. In Pres...

454. The Quartering Of Troops: The provision of the Third Amendment that no soldier shall in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law,...

455. Slavery And Involuntary Servitude: The prohibition of the Thirteenth Amendment is absolute upon the States and Federal Government alike that neither slavery nor involuntary servitude, except as a punishment for crime, whereof the part...

456. Enforcement Clause Of The Thirteenth Amendment: It is to be observed that whereas the Fourteenth Amendment has for its aim the protection of citizens against action on the part of the States, and that, therefore, the legislative power of Congress u...

457. Involuntary Servitude: Peonage: The Thirteenth Amendment had, of course, for its chief purpose, the abolition of negro slavery. But this was not the sole purpose. Its terms were purposely made broad enough to exclude not only the sl...

458. Seamen: In Robertson v. Baldwin38 the court upheld certain provisions of the Revised Statutes providing for the apprehension of deserting seamen, and the compulsory fulfilment by them of their contracts, as n...

459. Contracts For Personal Services: Enforcement Of: The Thirteenth Amendment renders unenforceable contracts for personal services, suits for damages in cases of breaches of such contracts being the only remedy left the ones to whom such services have ...

Chapter XLVI. Due Process Of Law. 460. Due Process Of Law: Definition Of: By the Fifth Amendment the prohibition is laid upon the Federal Government that no person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property...

461. Historical Inquiry Not Conclusive: In large measure, the specific contents of the phrase due process of law are to be ascertained by an examination of those settled usages and modes of proceedings existing in the common and statute ...

462. Rules Of Evidence And Procedure May Be Changed: Thus it has been held that, so long as the fundamental rights of litigants to a fair trial, as regards notice, opportunity to present evidence, etc., and adequate relief are provided, and specific req...

463. Appeal Not Essential To Due Process: Due process of law does not require the provision of a right of appeal from a trial to a superior court. In McKane v. Durston21 the court declared that a review by an appellate court of the final jud...

464. Confronting Witnesses: It is not essential to due process of law that in criminal causes the accused shall be confronted at the time of trial with the witnesses against him. This is specifically required by the Sixth Amendm...

465. Trial In Courts Of Law Not Essential: It is not essential to due process of law that proceedings and adjudications, though admittedly of a judicial nature, should be had in courts of law. It not infrequently happens that administrative, b...

466. Unessential Statutory Formalities: The mere failure to comply with certain formalities prescribed by a state law is not, without reference to what those formalities are, a denial of due process. When, then, a state court decides that ...

467. Fixed Interpretation Of Laws Not Guaranteed: So also it has been held that due process of law does not protect the individual who, in obedience to an interpretation given by executive officers to a statute, takes action which is later held by th...

468. Due Process And Substantive Rights: In the discussion thus far bad as to the meaning of due process, only its procedural or adjective side has been emphasized. We turn now to examine in how far substantive rights are secured to the indi...

469. Per Legem Terrae: It is quite plain that the phrase due process of law is historically related to and derived from the phrase per legem terrae of Magna Charta, and that the provisions of that fundamental document wer...

470. Distinction Between English And American Constitutional Doctrines: Upon the other hand, however, the general purpose of written constitutions in the United States, if not originally in all cases, has come to be quite different from that of Magna Charta. In this count...

471. Doctrine Adopted That Due Process Includes Substantive Rights: In C, B. & Q. R. R. Co. v. Chicago35 the court say in language leaving no room for doubt: In our opinion, a judgment of a state court, even if it be authorized by statute, whereby private property is...

472. Erroneous Interpretation Of The Law: It is, however, possibly arguable, that, notwithstanding the doctrine just stated, a claim that due process of law has been denied may be set up when a court has refused to the defeated litigant the b...

474. Liberty: Liberty and property are terms which have each received definitions broad enough to cause their connotations in very considerable measure to overlap. Thus in Allgeyer v. Louisiana,42 the court, defini...

475. Equal Protection Of The Law: The United States is not by the Constitution expressly forbidden to deny to anyone the equal protection of the laws, as are the States by the first section of the Fourteenth Amendment. It would seem, ...

476 The Federal Government And The Obligation Of Contracts: No specific inhibition is laid upon the Federal Government by the Constitution with reference to the impairment of the obligation of contracts. That government is, however, forbidden by the Fifth Amen...

Chapter XLVII. Prohibitions Laid Upon The States. 477. Prohibitions Upon The States: The prohibitions upon state action imposed by the federal Constitution are of two kinds: (1) those which arise from the fact that their exercise would be inconsistent with the powers possessed by the ...

478. Bills Of Credit: The first clause of Section X of Article I of the Constitution declares that no State shall . . . emit bills of credit; [or] make anything but gold and silver coin a tender in payment of debts. In ...

479. Ex Post Facto Legislation: By Section X, Clause I of Article I, the States are forbidden to pass any ex post facto law. The same prohibition is laid upon the federal legislature by the third clause of Section IX, and the force ...

480. Equal Protection Of The Law: As in the case of due process of law, the requirement of the Fourteenth Amendment as to equal protection of the law receives specific incidental consideration, throughout this treatise. It is, therefo...

481. Corporations Protected: Corporations equally with natural persons are entitled to the protection of the clause. The inhibition of the amendment . . . was designed to prevent any person or class of persons from being singled...

482. Illustrative Cases Arising Under The Equal Protection Cause: The enumeration of some of the specific applications which the requirement of equal protection of the laws has received will sufficiently illustrate its scope and intent. The provision of the Fourtee...

483. Yick Wo V. Hopkins: The case of Yick Wo v. Hopkins19 involved the validity of an ordinance of the City of San Francisco which required all persons desiring to establish laundries in frame houses to obtain the consent of ...

483. Equal Protection Of The Law Does Not Control The Grant Of Political Rights: The requirement as to equal protection of the law does not operate to prevent the States from restricting the enjoyment of political privileges to such classes of their citizens as they may see fit,21...

484. Classifications: When there are reasonable economic or political or social reasons for doing so, certain ocupations or industries, or even classes of persons may be selected out for special regulation or for the enjoy...

485. Classifications Must Be Reasonable: From what has gone before, it is clear that while classification of persons and businesses for purposes of regulation is not prohibited by the requirement of equal protection of the law, these classif...

486. State Laws And Judicial Systems Not Required To Be Uniform Throughout The State: In Missouri v. Lewis29 the important principle was laid down that the equal protection clause of the Fourteenth Amendment does not prevent the application by a State of different laws and different sy...

487. Equal Protection Requires Similar But Not The Same Privileges: Where similar or substantially similar conveniences and comforts are offered, transportation companies, inns, theaters, and other public service companies may by law be permitted or required to provid...

Chapter XLVIII. The Obligation Of Contracts. 488. The Obligation Of Contracts Clause: In addition to being prohibited by the Fourteenth Amendment from depriving any person of life, liberty, or property, without due process of law, the States are, by Section X, Article I of the Constitu...

489. Changes In Means Or Manner Of Enforcement Of Contracts: The obligation of a contract is not impaired by a law which changes the legal or equitable means for its enforcement, existing at the time it was entered into, provided an adequate even though not so ...

490. Contracts May Be Validated By Curing Technical Defects: Laws which operate to remedy or cure technical defects so as to give validity to otherwise invalid contracts are constitutional, their effect being to confirm rather than to impair the obligation of c...

491. Contracts By The State Not To Tax: Elsewhere in this treatise it is pointed out that, to a certain extent, the State's right of taxation may, in return for a substantial consideration, be parted with.5 When thus parted with, the undert...

492. Contracts To Which A State Is A Party: The contracts, the obligation of which is secured from impairment by the States, include agreements between the States and between a State and an individual or individuals, as well as those between in...

493. What Constitutes A Contract: Election or appointment to a public office does not create a contract between the State and the one so appointed.7 Marriage, though in some respects properly describable as a contract, is not one the...

494. Foreign Corporations: Permission To Do Business Within The State: Generally speaking, the right of a foreign corporation to do business within a State is in the nature of a license which that State may revoke or modify at discretion. Where, however, the foreign corp...

495. Charters Of Public Corporations: The charters of public corporations, investing them with subordinate legislative and other governmental powers are not contracts within the meaning of the obligation clause, and, so far as the federal...

496. Contracts By Municipal Corporations: Where, however, municipalities or other subordinate political corporations have, in the exercise of their charter powers, entered into contracts, those contracts are protected from subsequent impairme...

497. Charters Of Private Corporations Are Contracts: The Dartmouth College Case: In 1819 in the Dartmouth College case19 a charter of a private corporation was held to be contract between the State granting it and the corporation, which the former might not impair by subsequent le...

498. Charter Grants Strictly Construed: With reference to the strictness with which charter grants are to be construed the courts have laid down the doctrine that the State is to be held to have granted only such powers or immunities as are...

499. Charles River Bridge Co. V. Warren Bridge Co: The Charles River Bridge Co. v. Warren Bridge Co.28 case is another case in point. The facts of this famous case were these: The plaintiff company, under charter authority, had at great expense erecte...

500. Other Cases: In Wheeling & Belmont Bridge Co. v. Wheeling Bridge Co.29 it was held that the existence of a state law prohibiting the courts of the counties from licensing a ferry within a mile from an established ...

501. Regulation Of Charges Of Public Service Corporations: In the Railway Commission Cases31 was involved the question as to the power of the States to bind themselves by charter contracts with reference to the control of the rates legally chargeable by publi...

502. The Police Power And The Obligation Of Contracts: The extent of the power of the States in the exercise of their police powers to control the operations of domestic corporations as well as the strictness with which the charter grants are to be constr...

503. Tax Exemptions: Arguing from the fact that all charter contracts are presumed to be entered into with a knowledge and consent that they are, in their performance, subject to a legitimate exercise of the police power,...

504. Impairment Of Contracts By Taxation: When, however, the States and their political subdivisions have endeavored to use their taxing power as an indirect means of avoiding explicit contract obligations, the Supreme Court has not hesitated...

505. Instances Of Incapacity Of The States To Contract: With reference, also, to various matters which, properly speaking, cannot be said to fall within the domain of the police power, the state legislatures have been held to be incompetent to contract. 4...

506. Regulation Of Rates: With reference to the foregoing it is perhaps worthy of special mention that the right of public service corporations to fix their own charges or tolls is one which the legislature may grant, and, whe...

507. Eminent Domain And The Obligation Of Contracts: That property of incorporated companies, like other species of property, are subject to the State's power of eminent domain, is not questioned. In Long Island Water Supply Co. v. Brooklyn52 it is decl...

508. The Construction Of Contracts: Under the obligation clause no general power is given to the federal Supreme Court to review the decisions of state courts as to the proper construction to be given to the terms of a subsisting contra...

509. Existence Of A Contract A Federal Question: The rule is well established that the federal Supreme Court will determine for itself, that is, by its own independent judgment, whether or not that which is alleged to be a contract and to have been ...

510. Constitutionality Of State Laws Alleged To Impair Contracts A Federal Question: Generally speaking, as is well known, the federal Supreme Court holds itself bound by the decisions of the state courts as to the constitutionality of state laws as determined by their respective stat...

511. Decisions Of State Courts: How Far Controlling In Federal Courts: In State Bank of Ohio v. Knoop,57 a case brought up by writ of error to the state court, the federal Supreme Court reversed a decision of the state court which held that a state law of 1845, providing...

512. Doctrine In Cases Reaching The Supreme Court By Writs Of Error To State Courts: It is to be observed that all of these cases had reached the Supreme Court by writ of error to the state courts, and that the federal tribunal had been appealed to upon the ground that the contracts h...

513. Mccullough V. Virginia: .McCullough v. Virginia was one of a number of cases coming before the Supreme Court of the United States growing out of the attempt of the State of Virginia to avoid the acceptance, in payment of cer...

514. Muhlker V. N. Y. & H. Ry. Co: In the Muhlker case, coming to the Supreme Court by writ of error from the supreme court of the State of New York, it was held that the owner of a piece of real property abutting on a street in New Yo...

515. Refusal Of Federal Courts To Follow State Decisions Holding State Laws Void: The cases which have been considered in the paragraphs which have gone immediately before have been ones in which there has been state legislation impairing contracts created by or resting upon prior ...

516. Distinction Between Cases Coming To The Supreme Court By Writs Of Error To State Courts And Those Originating In Lower Federal Courts: In passing upon decisions of state courts overruling their prior decisions and thereby invalidating contracts entered into in reliance upon such prior decisions, there is a sharp distinction drawn bet...

517. Cases Based On Diversity Of Citizenship: In those cases coming to the federal Supreme Court by way of appeal from a lower federal court there is no question of federal jurisdiction, and in them, the federal courts determine for themselves wh...

518. Gelpcke V. Dubuque: Disregarding the earlier case of Rowan v. Runnels73 in which, though the point was involved and passed upon, the argument was not elaborated, the first important case in which the doctrine was clearly...

519. Extension Of The Doctrine Of Gelpcke V. Dubuque: According to the doctrine declared in the Gelpcke case, contract rights acquired under a law which has been held constitutional by the state courts will be protected by the federal courts from impairm...

520. Great Southern Fireproof Hotel Co. V. Jones: In Great Southern Fireproof Hotel Co. v. Jones80 the authorities are carefully reviewed, and the doctrine definitely stated that the federal courts will not hold themselves concluded by the decisions ...

Chapter XLIX. Constitutional Limitations Upon The Taxing Powers Of The States. 521. Constitutional Provisions: The federal Constitution lays but one express limitation upon the States with reference to the exercise of their taxing powers. This is that no State shall, without the consent of the Congress, lay a...

522. Special Assessments: The taxing by the State of private property in the form of taxes is held to be justified and not a taking of property for a public use without compensation, upon the theory that compensation is return...

523. Taxes And Special Assessments Distinguished: Special assessments are, properly speaking, taxes, and yet they are of so peculiar a character that the courts have not infrequently refused to bring them within the meaning of the term tax. Thus wh...

524. Constitutional Requirements Of Special Assessments: The power of the legislature to establish special taxing districts upon the lands within which a special tax is to be levied, assessed, and collected is limited by the following rules: (1) There must ...

525. Resort To Special Assessments Discretionary With The Legislature: When a public improvement is to be undertaken which will result in special benefit to a particular district, it is not obligatory upon the legislature to levy a special assessment upon that district f...

526. Special Assessments In Excess Of Benefits: It has been seen that the justification for a special assessment is the special benefits received. Logically and justly, it would seem, therefore, that such special assessments should in no case be pe...

527. Doctrine Of Norwood V. Baker: In 189S, however, was decided the case of Norwood v. Baker,12 which seemed to state a new doctrine. The facts in this case were these: By an ordinance of the village of Norwood a street was cut throug...

528. Norwood V. Baker Explained And Limited By Later Cases: The decision in the case of Norwood v. Baker was for a time extraordinarily disconcerting. For if, as the case seemed to hold. a special assessment according to some uniform rule of assessment, such a...

Norwood V. Baker Explained And Limited By Later Cases. Part 2: In Wight v. Davidson,17 decided at the same time as Tonawanda v. Lyon and French v. Barber Asphalt Paving Co., the objection was raised to an act of Congress relating to the District of Columbia, that...

Norwood Vs. Baker Explained And Limited By Later Cases. Part 3: In Martin v. District of Columbia22 was involved a law of Congress relating to the District of Columbia providing for the opening of alleys and the assessment of damages upon the lots in the squares c...

529. Summary: Summarizing the result, or rather the tendency of the cases reviewed, it would appear that the Supreme Court has drawn away from the doctrine stated in its earlier cases that a special assessment will...

530. Property Taxed Must Be Within The Jurisdiction Of The State: By reason of the due process clause of the Fourteenth Amendment, and as a result from the fact that no State may give extraterritorial force to its laws, the States of the Union are constitutionally d...

531. Personal Liability Of The Property Owners: The right to tax depending upon the actual or constructive presence within the jurisdiction of the property taxed, and the tax thus operating in rem rather than in personam against the owner, it follo...

532. Incorporeal Hereditaments, Franchises, Etc: All incorporeal hereditaments, such, for example, as corporate franchises, may be taxed only in the State from whose law they are derived and where, consequently, they have their legal situs.27 26 Af...

533. Taxation Of Tangible Personal Property: The right of the State to tax all real property situated within its 'borders,29 has never been questioned. Its inability to tax real Constitutional Limitations Upon Taxing Powers. 947 property beyond ...

534. Taxation Of Property Situated In Several Jurisdictions: The instrumentalities through which commerce is carried on between the States and with foreign countries may be taxed by the States as property to the extent that such instrumentalities are within the...

535. The Unit Rule: As to railroad, telegraph, and sleeping-car companies engaged in interstate commerce the rule thus is, as stated by the court in Adams Express Co. v. Ohio State Auditor,33 that their property in the ...

536. Adams Express Co. V. Ohio: This unit in use principle of valuation received an extensive application in the case of Adams Express Co. v. Ohio State Auditor,36 decided in 1897, for there the actual tangible property within th...

537. Taxation Of Capital Stock Of Companies Operating In Two Or More States: In taxing the property within the State of a company operating in two or more States the not unusual practice has been to levy the tax on the capital stock of the company, taking as the basis of asses...

538. Taxation Of Movables: In a series of cases the Supreme Court has held that in taxing the rolling stock of railway, sleeping-car and refrigerator companies, a State may estimate the number of cars upon the average kept and ...

539. Taxation Of Intangible Personal Property: Whereas, with reference to the taxation of tangible personal property, the practice has been to determine its situs by its actual location, with respect to intangible personalty, the principle of mobi...

540. Doctrine Of State Tax On Foreign-Held Bonds Case: However, in the case of State Tax on Foreign-Held Bonds,44 decided in 1873, was laid down a rule which, if strictly adhered to, would have greatly embarrassed the States in their attempts to tax intan...

541. Taxation Of Shares Of Stock: Shares of stock in incorporated companies may be viewed either as property in the hands of their holders or as representing the property of the company. Thus they are viewed in the latter light when t...

542. Taxation Of Mortgages: In Savings and Loan Society v. Multnomah51 the broad dicta of the court in the State Tax on Foreign-Held Bonds cases were again modified, this time with reference to the taxation of mortgages. In this...

543. Taxation Of Credits: In the preceding paragraphs we have seen that mortgages and shares of stock have been taken out of the broad doctrine declared in the State Tax on Foreign-Held Bonds cases, .and placed under the rule ...

544. Taxation Of Franchises: The State which incorporates, and that State only, may tax the franchise of a corporation, that is, its right to be and operate as a corporation. In Louisville & Jeffersonville Ferry Co. v. Kentucky63...

545. Taxation Of Good-Will: That a franchise may be taxed as a piece of property, and that, in estimating the value of this property, the value of the goodwill of the company may be included, is clearly established in Adams Expr...

546. Tax Exemptions And The Obligation Of Contracts: This Subject Has Been Considered In The Preceding Chapter. ...

547. Double Taxation: We have seen that the right of a State to tax depends upon its jurisdiction over the object taxed, and that this jurisdiction is obtained by either actual or constructive presence of the object within...

Chapter L. The Federal Judiciary Organization. 548. Constitutional Provisions: Its Organization. The Constitution provides that there shall be a Supreme Court of the United States, and such inferior courts as Congress may from time to time ordain and establish. It is also provi...

549. Inferior Federal Courts: By the original Judiciary Act of 1789 provision was made for inferior federal courts to be known as District and Circuit Courts. The territory of the Union was divided into districts composed of a Sta...

550. The Supreme Court: Its Organization: The Supreme Court is at present composed of nine justices - eight associate justices and one chief justice. It sits at Washington, D. C, and holds annual terms beginning in October and lasting till th...

551. Circuit Courts Of Appeal: Organization: The Circuit Courts of Appeal created by the act of 1891 are each held by three justices. These may be the Supreme Court justice of the circuit, the circuit judges, or one or more of the district judge...

552. Circuit Courts: Organization: There are nine judicial circuits, each circuit being subdivided into districts. In some cases two circuit judges, and in other cases three or more, being appointed for each circuit. One justice of the...

533. District Courts: Organization: There are now about eighty District Courts, nine of which are in the territories. In a few instances two districts are assigned to one judge. For each district a United States district attorney is app...

554. Court Of Claims: Organization: This tribunal was established in 1855, and is at present composed of five justices. It sits at Washington, D. C., holding one term yearly, beginning the first Monday in December. ...

555. Judiciary Of The District Of Columbia: The courts of the District of Columbia consist of Police Courts, a Supreme Court, and a Court of Appeals. The Supreme Court consists of a chief justice and five associate justices, each of whom indivi...

556. The Supreme Court: Original Jurisdiction: The jurisdiction of the Supreme Court is of two kinds -original and appellate. The appellate jurisdiction is, in turn, of two kinds; that coming by way of writ of error to the courts of the States, an...

557. Inferior Courts May Be Granted Jurisdiction Of Cases Within The Original Jurisdiction Of The Supreme Court: The implication from the foregoing, especially from the last clause, is that the Supreme Court may not take appellate jurisdiction in cases in which it might exercise original jurisdiction, and, there...

558. Supreme Court: Appellate Jurisdiction: The appellate jurisdiction of the Supreme Court, together with the entire jurisdiction of all the inferior federal courts is wholly13 9 629. 887. 10 4 Blatchf. 50. 11 111 U. S. 449; 4...

559. Appeals From Circuit And District Courts: As at present by statute provided, the Supreme Court has the following appellate jurisdiction with reference to the Circuit Courts. 14 7 Wall. 506; 19 L. ed. 264. Appeals or writs of error may be ta...

560. Appeals From Circuit Courts Of Appeal: All cases in the Circuit Courts of Appeal, not expressly made final, and in which the matter in controversy exceeds one thousand dollars besides costs, may be reviewed by the Supreme Court by appeal o...

561. Appeals From Territorial And Other Courts: To the Supreme Court is also given certain appellate jurisdiction in cases determined in the highest courts of the District of Columbia, the Territories, and the Insular Dependencies, in the Court of ...

562. Writs Of Error To State Courts: Appellate jurisdiction is exercised by the Supreme Court by writs of error directed to the highest courts of the State in which a decision could be had, in all cases where is drawn in question the va...

563. Circuit Courts Of Appeal : Jurisdiction: The Circuit Courts of Appeal have appellate jurisdiction over all cases heard in the Circuit and District Courts, except those which are carried to the Supreme Court. The judgments and decrees thus re...

564. Circuit Courts: Jurisdiction: The Circuit Courts since the act of 1891 creating the Circuit Courts of Appeal have had only original jurisdiction. This jurisdiction is, however, very wide, including, subject to a pecuniary limitati...

565. District Courts: Jurisdiction: The purposes of this treatise do not require a detailed and complete statement of the jurisdiction of the lower federal courts, but speaking generally, and excepting the less important classes of case...

566. Court Of Claims: Jurisdiction: This court, established in 1855,26 has general jurisdiction of all claims founded upon the Constitution of the United States or any law of Congress, except for pensions, or upon any negotiation of an...

567. Jurisdiction Of Federal Courts Based Upon Diversity Of Citizenship: By the Constitution jurisdiction in the federal courts may be founded upon either the subject-matter enumerated in Article III, or upon the character of the parties, that is, where the controversy is ...

568. Citizenship Of Corporations: It was early decided that a corporation is not a citizen within the meaning of the clause providing that the federal judicial power shall extend to controversies between citizens of different States, ...

569. National Banks: When the present national banking system was established, and for more than twenty years afterwards, an express statute authorized the National Banks to sue and be sued in the federal courts. Since 18...

570. Federally Chartered Corporations: It has also been held that a corporation chartered by the United States, except as specifically restricted by Congress, has the right to invoke jurisdiction of the federal courts in respect to any lit...

571. Fictitious Citizenship: Federal jurisdiction may not be created by the fictitious assignment of the cause of action, but where the transfer is real, and for a consideration, federal jurisdiction will attach even though the t...

572. Federal Jurisdiction Of Cases Arising Under The Constitution, Treaties And Acts Of Congress: The Constitution provides that the federal judicial power shall extend to all cases, in law or equity, arising under this Constitution, the laws of the United States, and treaties made, or which shal...

573. Removal Of Suits From State To Federal Courts: The protection of federal law and federal rights against possible invasion by state law and state authorities may be secured in three ways. First, by vesting in the federal courts exclusive cognizance...

574. Concurrent State Judicial Powers: The state courts are not excluded from the exercise of jurisdiction with reference to all of the classes of cases placed by the Constitution within the possible cognizance of the federal courts. Over ...

575. Statutory Provision For Removal From State To Federal Courts: By the original Judiciary Act of 1789 it was provided that suits brought in state courts might be removed into the federal courts only in case all the necessary defendants were aliens or all the neces...

576. Congress May Not Confer Jurisdiction Upon State Courts: As has been pointed out in Section 574 the state courts possess jurisdiction over certain cases concurrently with that possessed by the federal courts. This, however, is not a jurisdiction which is co...

Chapter LI. Political Questions. 577. Political Questions: Elsewhere in this treatise the well-known and well-established principle is considered that it is not within the province of the courts to pass judgment upon the policy of legislative or executive act...

578. Cherokee Indians V. Georgia: In the Cherokee Nation v. Georgia2 an injunction was prayed to restrain the State of Georgia from executing certain laws within that State, which, it was alleged, would annihilate the Cherokees as a p...

579. Georgia V. Stanton: The difficulty sometimes experienced in deciding between a justiciable and a non-justiciable question is well illustrated in this latter case. Here a bill was filed invoking the original jurisdiction...

580. Existence And Territorial Extent Of Sovereignty: The existence and territorial extent of the sovereignty of a State, involving, of course, the question as to the de jure character of a government, have been held to be political questions. In Foster...

581. War: Belligerency: Neutrality: From the cases already cited, it follows that determinations by the political departments as to existence of a status of independence, or of war, or of belligerency, are not reviewable by the courts. ...

582. Treaties: Whether or not a treaty or other international agreement which the United States may have entered into with a foreign country has been sufficiently ratified by that country is for the political depart...

583. Diplomatic Agents: Whether or not a given person is to be recognized as the accredited agent, consular or diplomatic, of a foreign government, is, also, a question for final determination by the political department.14 ...

584. Other Political Questions: The extent of the immunity from judicial control of matters of international concern is well illustrated in the case of United States ex rel. Boynton v. Blaine,15 decided in 1890, in which the general...

585. Suits Between The States: Though questions of the extent of political jurisdiction are, as has been seen, essentially political in character, they are as between the individual States of the Union justiciable in the Supreme Co...

586. Courts Will Exercise Jurisdiction When Private Rights Are Involved: In all these cases the courts have held themselves bound by the positions assumed by the executive and legislative departments. When, however, private justiciable rights are involved in a suit, the co...

587. Courts Will Not Perform Administrative Functions: From the foregoing it appears that the courts themselves decline to assume jurisdiction with reference to matters of a political character. So also, they have held that it is beyond the constitutional...

Chapter LII. The Law Administered By Federal Courts. 588. Federal Courts And International Law: Thus far in our consideration of the federal courts we have been concerned with their organization and fields of jurisdiction. We turn now to an inquiry as to the law which they administer. When exer...

Federal Courts And International Law. Continued: An interesting case with reference to the municipal force of international usages is The Paquete Habana.7 This case involved the question whether, in the absence of a municipal law so providing, the ...

589. Federal Criminal Law: There is no common, non-statutory, federal criminal law. The federal courts have no criminal jurisdiction save that given them by statute of Congress; and no act is recognized as a crime against the p...

590. Federal Courts And The Construction Of State Laws: By the Constitution the federal courts are given jurisdiction of all suits between two or more States, between a State and citizens of another State, between citizens of different States, between citi...

591. Force Of State Interpretations: What the proper construction of the state law is, which they are to apply, the Supreme Court of the United States has repeatedly declared is, subject to the exceptions hereinafter to be described, to...

592. Rule Not One Of Constitutional Necessity: Exceptions: From the quotations which have been made, the general rule governing the construction of state law by the federal courts is sufficiently clear. We have now to consider the exceptions which have been m...

593. Equity: Even this statutory requirement, it is to be observed, is a limited one, its application being limited to trials at common law, the entire field of equity procedure thus being omitted from its control...

594. Rules Of Evidence: Generally speaking, Congress may of course provide the rules of evidence to be adopted by the federal courts, and itself establish, or empower the courts themselves to establish, the rules governing t...

595. Unsettled Construction Of State Law: In Green v. Neal23 it was held that where a state court had changed its former construction of a law, the federal courts, upon a subsequent case coming before them, should do likewise and thus keep ev...

596. The Obligation Of Contracts And The Construction Of State Law: In an earlier chapter has been considered the circumstances under which the federal courts refuse to be bound by the construction given to state law by the state courts when the impairment of the obli...

597. Federal Courts And The Common Law: The general principle usually stated is that there is no federal common law - that, in other words, the law which the federal courts apply consists wholly and exclusively of the federal Constitution, ...

598. Interstate Commerce And Common Law: This general doctrine that there is no federal common law requires considerable explanation, if not qualification. In the first place, with reference to those matters of which interstate commerce is t...

599. General Principles Of The Common Law As Distinguished From Their Special And Local Applications: In Olcott v. The Supervisors37 Justice Strong, speaking for the court, says: It must be kept in mind that it is only decisions upon local questions, those which are peculiar to the several States, or...

600. General Commercial Law: Swift V. Tyson: * The doctrine that when the question is not one of peculiarly local law and local interest, the federal courts will determine for themselves, without reference to the decisions of local courts what t...

General Commercial Law: Swift V. Tyson. Continued: In Smith v. Alabama (124 U. S. 465; 8 Sup. Ct. Rep. 504; 31 L. ed. 508) the court say: A determination in a given case of what that [common] law is may be different in a court of the United States fr...

Chapter LIII. Suits Between States And To Which A State Or The United States Is A Party Plaintiff. 601. Constitutional Provisions: Article III of the Constitution provides that the judicial power of the United States shall extend to controversies between two or more States. During the colonial period disputes between the coloni...

602. Boundary Disputes: The most important class of cases which have required the exercise of the authority granted by the Supreme Court under the present Constitution to adjudicate between States have been those relating to...

603. Maladministration Of Laws Of A State To Injury Of Citizens Of Another State Not Justiciable In A Suit Between The States: In Louisiana v. Texas20 complaint was made by the plaintiff State that the agents of the defendant State were administering certain quarantine powers in a manner that discriminated against citizens of...

604. State As Parens Patriae: Missouri V. Illinois: In Missouri v. Illinois21 was raised the interesting point whether the general health and prosperity of its citizens give to a State, as such, an interest sufficiently direct to enable it to prosecute...

605. Irrigation Works: Kansas V. Colorado: In Kansas v. Colorado24 the question was raised whether one State has the right, by the construction of its irrigation works, seriously to deplete the water supply of a river which, rising in the defe...

Irrigation Works: Kansas V. Colorado. Continued: The demurrer to the bill, alleging want of jurisdiction, was, therefore, overruled, without prejudice to any question, and leave to answer granted. Coming before the Supreme Court again upon its meri...

606. Justiciable Quasi-Sovereign Rights Of The States: The case of Georgia v. Tennessee Copper Co.,30 though not one between States, illustrates a further definition by the Supreme Court of what will constitute a justiciable interest upon the part of a St...

607. New Hampshire V. Louisiana And South Dakota V. North Carolina: The interesting cases of New Hampshire v. Louisiana31 and South Dakota v. North Carolina32 will receive consideration in the chapter entitled The Suability of the States. ...

608. Suits Of States Against Individuals: The question as to the character of interests requisite for the institution and maintenance of suits by the States of the Union has necessarily to be considered as well when individuals have been proc...

609. Suits Between The United States And A State Of The Union: Article III does not in express terms grant jurisdiction in suits between a State and the United States, but in a number of instances suits brought by the United States against individual States of th...

610. Suits Between A State And Foreign States Or Their Citizens: As regards controversies between a State, . . . and foreign States, citizens, or subjects, it may be said that no such raits have ever been brought, and one can, therefore, only speculate as to the ...

Chapter LIV. The Suability Of States. 611. A Sovereign State May Not Be Sued Without Its Consent: That a sovereign is not subject to suit, without its consent, is a principle that has come down unchallenged since the time of Rome. It has found expression in the rule that the sovereign can do no w...

612. Chisholm V. Georgia: Hamilton's and Marshall's position that, under the new Constitution, the States of the Union would not be held amenable to suits brought by citizens of other States soon proved erroneous. In the case ...

613. The Eleventh Amendment: The popular objection to this decision immediately aroused and manifested in the adoption of the Eleventh Amendment is a matter of familiar history. The phraseology that the judicial power of the Unit...

614. South Dakota V. North Carolina: In the case of South Dakota v. North Carolina,8 however, the true party of interest was shown to be the plaintiff State. Jurisdiction was assumed by the Supreme Court and a judgment and decree awarded...

615. Eleventh Amendment Does Not Apply To Suits Instituted By A State: Cohens V. Virginia: In the great case of Cohens v. Virginia23 the question arose whether the Supreme Court of the United States might exercise jurisdiction in cases appealed to it from the highest court of a State, in ca...

616. Corporations Chartered By, And Of Which The State Is A Stockholder, May Be Sued: In Bank of the United States v. The Planters' Bank of Georgia25 it was held that a suit against a corporation chartered and partly owned by the State was not a suit against the State. The State does...

617. Effect Of Eleventh Amendment Upon Federal Constitutional Rights Guaranteed Against State Violation: In a series of great cases the Supreme Court of the United States has laid down the doctrine that the Eleventh Amendment does not grant to States nor to their agents a power, unrestrainable by judicia...

618. Suits Against State Officers: When Considered Suits Against The State: Though, as has been seen, the suability of the United States, and, since the Eleventh Amendment, of an individual State of the Union, by a citizen is not and has not been questioned, the courts have o...

619. United States V. Peters: In the case of United States v. Peters,29 decided in 1809, a judgment was given against the heirs of the state treasurer of Pennsylvania, for money improperly received and held by him as such treasure...

620. Osborn V. Bank Of The United States: In the case of Osborn v. Bank of the United States30 an injunction was asked of the federal court to restrain the auditor of the State of Ohio from proceeding against the Bank of the United States und...

621. Rule As To States Being Parties Of Record: As a conclusion from his argument in Osborn v. Bank of the United States, Marshall laid down the following rule: It may, we think, be laid down as a rule that in all cases where jurisdiction depends...

622. Mandamus To State Officials: The case of Louisiana v. Jumel35 is a leading one upon the question as to when the Supreme Court will award a mandamus to compel the performance by a state officer of a duty which, under color of an u...

623. The Virginia Debt Controversy: The question of the suability of a State has been so fully and illuminatingly developed in the efforts of the State of Virginia to avoid the payment of certain parts of its debt, that a somewhat detai...

The Virginia Debt Controversy. Continued: The ratio decidendi in this class of cases, the opinion continues, is very plain. A defendant sued as a wrongdoer, who seeks to substitute the State in his place, or to justify by the authority of ...

624. In Re Ayers: In 1884, the State of Virginia had passed an act which became known as the coupom crusher, which provided that when coupons were tendered, the collector was to report the fact to the law officer of ...

625. Reagan V. Trust Co: In Reagan v. Farmers' Loan & Trust Co.57 an injunction was sustained against the attorney-general of a State and the members of a state board of railway commissioners, restraining them from putting in...

626. Fitts V. Mcghee: Furthermore, in Fitts v. McGhee,61 a case in which was dissolved an injunction obtained by a railroad company preventing the attorney-general of a State from executing an act which the plaintiff alleg...

627. In Re Young: In Re Young63 a further extension of the authority of the federal courts to enjoin the execution by state officials of a state law alleged to be unconstitutional was made necessary. In this case a max...

628. Suits To Recover Specific Pieces Of Property Held By The State: Thus far in the discussion of the suability of the State, according to American constitutional law, reference has been had to suits involving the recovery of money judgments or the issuance of writs o...

629. Set-Offs Against The State: In United States v. Clarke66 it was declared by Marshall that the United States was not suable of common right, and that unless the plaintiff could bring his suit within the terms of some perm...

630. Liens: The interesting point was, however, made in this case, that though a lien attaching to a piece of property owned by the State is not enforceable, the lien itself may exist, and becomes enforceable as ...

631. The Arlington Case: United States V. Lee: In 1882 was decided the famous case of United States v. Lee.69 The facts upon which the case was based were these: The Robert E. Lee homestead, the Arlington Estate, had been for ten years in possessi...

632. The Doctrine Of United States V. Lee Applied To A State: In Tindal v. Wesley73 the doctrine of United States v. Lee was applied to a State of the Union, the court in its opinion saying: Whether the one or the other party is entitled in law to possession is...

633. Suit Maintainable Only Where The Action Against The Officer Is A Possessory One: This language in Tindal v. Wesley causes the doctrine declared in United States v. Lee to appear more plainly to be that the court still holds to the doctrine that any suit against officers of a State...

634. Recent Cases: The latest judicial phases of the suability of the United States are to be found in Belknap v. Schild,76 Minnesota v. Hitchcock,77 Oregon v. Hitchcock,78 and International Postal Supply Co. v. Bruce.7...

635. Suability Of Minor Political Bodies: In conclusion of this subject it is to be observed that the principle of the non-amenability of the States of the Union to suit does not extend to their political subdivisions. These may be sued in co...

636. Statutory Consent Of The United States And Of The States To Be Sued: The United States by act of Congress and various of the States of the Union by constitutional or statutory provision, have consented to be sued by individuals as to specified matters.85 In all cases,...

Chapter LV. Admiralty And Maritime Jurisdiction. 637. Admiralty And Maritime Jurisdiction Defined: Section II, Clause 1, of Article III provides that The judicial power shall extend ... to all cases of admiralty and maritime jurisdiction. Admiralty jurisdiction refers to that class of oases whic...

638. Extent Of Admiralty Jurisdiction: Following strictly the rule of giving to the technical terms of the Constitution the meanings attached to them in the English common law, the admiralty jurisdiction of the United States courts, so far...

639. Admiralty Jurisdiction Extends To Navigable Waters Wholly Within A State: The federal admiralty jurisdiction being wholly independent of the power to regulate interstate commerce, and attaching whenever the cause of action has arisen on navigable water, jurisdiction extends...

640. Extent Of Federal Admiralty Jurisdiction: Federal admiralty jurisdiction being distinct from the commerce power, and navigability accepted as the criterion warranting the exercise of federal authority, it might appear that there would be no c...

641. Canals: In later cases the admiralty jurisdiction of the United States has been construed to extend to cases arising on canals.7 In the former of these cases it was held that the canals are navigable waters ...

642. Repairs On Land And In Dry Dock: It has been held that repairs made to, or injuries sustained by, a ship while in dry dock are maritime in character, but the dry dock not being itself used for the purpose of navigation is not a subje...

643. Admiralty Jurisdiction Does Not Carry With It General Political Jurisdiction Over Navigable Waters: It has been held in an unbroken line of cases that the grant to the United States of admiralty jurisdiction does not, in itself, carry with it any general or political jurisdiction. That is to say, un...

644. Admiralty Courts: During the colonial period admiralty jurisdiction in this country was exercised by vice-admiralty courts created by commissions from the British High Court of Admiralty, authority being given to the c...

645. State Legislative Powers With Reference To Admiralty Matters: It will be observed that the act vesting admiralty jurisdiction in the district courts saves to suitors, in all cases, their right to a common-law remedy, where that law is competent to give it. The e...

646. Legislative Powers Of Congress Flowing From Admiralty And Maritime Jurisdiction: The Constitution does not in express terms confer upon Congress the power to legislate with reference to matters maritime, but the grant to the judiciary of jurisdiction over all cases of admiralty an...

647. The Determination Of The Sphere Of Admiralty Jurisdiction A Judicial Question: Though, as appears from the foregoing, Congress, and to a certain extent the state legislatures as well, have the power to fix the substantive law which the federal admiralty courts are to apply, it i...

Chapter LVL Impeachment. 648. Constitutional Provisions: The constitutional provisions for impeachments are contained in the clauses quoted in the footnote.1 The term impeachment was a well known one at the time the Constitution was adopted, having been ...

649. Persons Subject To Impeachment: It will be observed that the Constitution makes no mention as to what persons shall be subject to impeachment. According to English precedent all citizens are subject to impeachment, and it was first ...

650. Who Are Civil Officers: Military officers are not subject to impeachment. No attempt has ever been made to impeach an officer of the army or of the navy, and, therefore, there have been no pronouncements upon this point. But...

651. When A Civil Officer May Be Impeached: By Story it was held that, to be impeachable, the accused must be at the time in office. He says: If, then, there must be a judgment of removal from office, it would seem to follow that the Constitut...

652. For What Offenses Impeachment Will Lie: The constitutional provision is that impeachment may be had for treason, bribery, or other high crimes or misdemeanors. The terms treason and bribery require no definition. Treason is, indeed, ...

653. Punishment: It is constitutionally provided that conviction upon impeachment must result in removal from office. To this may be added disqualification to hold and enjoy in the future any office of honor, trust, o...

654. Effect Of Dissolution Of Congress: Whether or not the dissolution of the House preferring the impeachment operates to terminate the charges made has not been determined, the occasion for the determination not having arisen. Reason and ...

Chapter LVII. The Election Of The President And Vice-President. 655. The Executive Department: The President and Vice-President are the only federal executive officers for whose selection and. functions the Constitution makes direct provision, unless, indeed, one includes the Senate to which is...

656. Appointment Of Presidential Electors; Plenary Powers Of The States: The Constitution provides that Each State shall appoint, in such manner as the legislature thereof may direct, a number of l Art. II, Sec. II. CI. 1; Art. II, Sec. II, CI. 2. electors, equal to the ...

657. Vacancies: The States having plenary power over the appointment of electors may make provision by law for the contingency of an elector dying between the date of his appointment and the time for the casting of h...

658. Original Provisions Of Constitution As To Election Of President And Vice-President; Inadequacy Of: According to the original provisions of the Constitution the electors might vote for two persons without indicating which was their choice for President, and which for Vice-President. The person havin...

659. Twelfth Amendment: The inadequacy of the original constitutional provisions for the election of the President and Vice-President early became manifest John Adams became Vice-President in 1796 though he did not receive h...

660. Counting The Votes: With reference to the action of the Houses of Congress, after the selection of electors has been certified to them, the Twelfth Amendment, copying the language of the original provision of the Constit...

661. Law Of 1887: By a law of February 3, 1887,8 the whole matter of the election of the President is attempted to be regulated. By the first section the second Monday in the January succeeding their appointment is fix...

662. Constitutionality Of: The constitutionality of this section has been questioned upon two opposite grounds. Professor Burgess has criticized it as giving an undue power to the States.9 This language reveals at the outset,...

663. Criticism Of The Act Of 1887: This act in many respects embodies prior legislative practice, and is certainly founded upon the same constitutional theory as to the extent of the powers of Congress with reference to the subject. Th...

Criticism Of The Act Of 1887. Continued: The language, comments Dougherty, is none too strong. If a Congress, protected by an adequate vote in each chamber, wished to destroy the government, this provision would enable it to do so. It per...

Chapter LVIII Presidential Succession. 664. Constitutional Provisions: The Constitution provides that: In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall d...

665. Act Of 1792: The act of March 1, 1792, relative to the election of the President and Vice-President also fixed the succession in case of the death, removal, resignation, or disability of these officers. It declare...

666. Act Of 1886: In 1886 (January 19) was enacted the following law: Be it enacted, etc. . . . That in case of removal, death, resignation, or inability of both the President and Vice-President of the United States,...

667. Questions Undetermined: A criticism that may be made both to the constitutional provision and to the acts of 1792 and 1886 is that the term inability to discharge the powers and duties of the presidential office is not def...

668. Third Term: The Constitution provides that the President and Vice-President shall hold office for the term of four years. The proper length of term, and the propriety of forbidding re-election, were discussed in ...

Chapter LIX. The Powers And Duties Of The President. 669. The Oath Of Office: Before entering upon the execution of his office, the President is constitutionally required to take the following oath or affirmation: I do solemnly swear (or affirm) that I will faithfully execute ...

670. Constitutional Powers Of The President As Chief Executive: By Section I of Article II, it is declared that The executive power shall be vested in the President. By Section III it is required that he shall take care that the laws are faithfully executed....

671. The Neagle Case: In these ways Congress has by law provided means by which resistance to federal authority may be overcome or punished, and federal agents protected in the performance of their federal duties. In the c...

672. The President As Administrative Chief: The functions of a chief executive of a sovereign State are, generally speaking, of two kinds - political and administrative. In different countries, with different governmental forms, the emphasis la...

673. Originally Intent That The President Should Be Primarily A Political Chief: Congressional Control Of Administration: In the United States it was undoubtedly intended that the President should be little more than a political chief; that is to say, one whose functions should, in the main, consist in the performance of...

674. Development Of The Administrative Powers Of The President: Despite this obvious original intention to confine the duties of the President mainly to the political field, the President has in practice become the head of the federal administrative system.8 This ...

675. President Acts Through The Heads Of Departments: In general the courts have recognized that the President acts through the chiefs of the Departments and that their acts are, in the view of the law, his acts. In proper cases, also, the acts of subord...

676. Except When His Personal Judgment Is Demanded: Where, however, from the nature of the case, or by express constitutional or statutory declaration, it is evident that the personal, individual judgment of the President is required to be exercised, t...

677. Administrative Appeals: The courts have laid down the general doctrine that where a power of supervision and direction is given to an administrative superior, this power may be exercised either by way of direct order, or by ...

678. Administrative Decentralization In The States: In general it may be said that the administrative systems of the States are much less centralized than that of the United States. As contrasted with the federal system the governors have no general po...

679. Increasing Integration Of Federal Administration: The federal administrative system has exhibited a steady increase in integration. In the earlier years subordinate administrative officials were accustomed to act in individual cases without feeling t...

680. Administrative Interpretations: In the interpretation of the law one administrative officer is not bound by that given to it by his predecessors. He will not, however, disturb the application of the law that has been made in a given...

681. Administrative Regulations: The authority on the part of an administrative officer to issue a regulation carries with it as the court say in United States v. 18 American Administrative Law, p. 142. 19 Opinions of the Atty.-Gen...

682. Power Of The President To Control The Institution And Prosecution Of Suits By The Department Of Justice: The power of the President to control the institution and continuance of suits by the Attorney-General and his assistants may seem to some an improper one, but its existence has been recognized since ...

683. Information To Congress: The constitutional obligation that the President shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall ju...

684. The President's Control Of Foreign Relations: In the chapter dealing with the Treaty-Making Power, the extent of the President's control of the foreign relations of the United States was fully considered. ...

685. The Veto Power Of The President: The exercise by the President of the veto power has given rise to very few constitutional questions, and, where these have arisen, they have been considered, incidentally, elsewhere in this treatise.3...

686. The President's Pardoning Power: The Constitution provides that the President shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. 31 92 U. S. 105; 23 L. ed. 605....

687. The Pardoning Power May Not Be Limited By Congress: The power is a purely discretionary one in the President, and, therefore, may not in any way be limited by Congress. In Ex parte Garland38 the court say: The power thus conferred is unlimited, with t...

688. Acts Of Amnesty And Remission Of Penalties: Though Congress has thus no power to limit in any way the exercise of the pardoning power by the President, it may itself exercise that power to a certain extent, if exercised prior to conviction. Thu...

689. Suspension Of Sentences: The power to suspend sentence, it has been held, is by the common law inherent in the judicial power, and its exercise, therefore, would not be in conflict with the executive power to grant reprieves ...

Chapter LX. The Appointment And Removal Of Officers. 690. Constitutional Provisions: The Constitution provides that the President shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme...

691. "Officer" Of The United States Defined: The definition of the term officer of the United States has been determined in United States v. Germaine1 and United States v. Mouat.2 In the latter case the court say: What is necessary to consti...

692. Inferior Officers: The Constitution does not define the term inferior officers, but it would appear that in this class are included all officers subordinate or inferior to those officers in whom other appointments may...

693. Nominations: With reference to the President's power of appointment it is to be observed that nominating, appointing, and commissioning to office are distinct acts. The nomination is exclusively in the hands of t...

694. Creation Of Offices: All offices are created either by the Constitution itself, or by Congress. The President, therefore, has not the power to create an office by directing some person to perform certain functions. Howeve...

695. Appointing Powers Of Congress: The Congress has no appointing power, beyond the selection of its own officers. It may create an office but not designate the one to fill it Congress, by acts passed in 1823, 1834, and 1849, directed ...

696. Appointing Power May Be Vested Only As Provided By The Constitution: The Congress may not vest the appointment of officers elsewhere than, as permitted by the Constitution, in the President alone, the President and the Senate or the heads of departments. In Ekiu v. Uni...

697. Civil Service Requirements: The question has been at times raised as to the constitutional power of Congress, while providing for the appointment of officials by the President, by and with the advice of the Senate, to require th...

698. The Power Of Removal: Though the Supreme Court has never had occasion to pass squarely upon the point, executive practice, and, with the exception of the tenure of office acts of 1867 and 1869, Congressional enactment has ...

699. Congress May Regulate The Removal Of Inferior Officers: In United States v. Perkins16 it was held that when Congress by law vests the appointment of inferior officers in the heads of departments, it may at the same time limit and restrict the power of remo...

700. Injunctions To Prevent Removal: In White v. Berry17 it was held that, in the absence, at least of express statutory authorization, the courts will not grant a writ of injunction to prevent the removal of an officer from the classifi...

701. Mandamus To Reinstate In Office: In Keim v. United States18 it was held that the action of the Secretary of the Interior in discharging a clerk in his department for incompetency was not subject to review in the courts either by mand...

702. Note. - The Powers Of Removal By State Governors: From the foregoing pages it is seen to be established that the right of removal from office exists in the President unless taken away in plain and unambiguous language, and that it is by no means cert...

Chapter LXI. Military Law. 703. Military Powers Of The General Government: Under the Articles of Confederation the General Government had not been granted adequate military authority. To it had been conceded by the States the power to build and equip a navy. But for its la...

704. Military Law: With Reference To Members Of The Army And Navy: The Constitution provides, as has been seen, that Congress shall have the power to provide and to make rules for the government and regulation of the land and naval forces. It is also provided that th...

705. Articles Of War: The chief of these military laws, so far as they relate directly to the duties and obligations of the individual soldier, are embodied in the so-called Articles of War, which constitute sections 1312 ...

706. Obligations Assumed By Enlistment: By enrollment in the military forces of the United States, the individual assumes new obligations, and is subjected to certain limb for almost every crime. Gradually, however, they assumed something o...

707. Powers Of The Military Commander: In time of war, as we shall see, the powers of the military commander, in the control of his own men, and of the citizens of the State to which he belongs, are much broader than they are in time of pe...

708. Courts Martial: The tribunals in which those who violate the military law are commonly tried (except where urgency demands a more summary method) are termed courts martial. Article 64 of the Articles of War provides:...

709. Powers Of Courts Martial; Jurisdiction Of Civil Courts To Review Proceedings Of: A leading case fixing the constitutional status of courts martial is Dynes v. Hoover,10 decided in 1858. This was an action of trespass and false imprisonment brought by the plaintiff, lately a seaman...

710. Jurisdiction Of Courts Martial Over Offenses Which Are Also Violations Of The Local Civil Law: In Coleman v. Tennessee13 the court say: We do not call in question the correctness of the general doctrine . . . that the cial officers of that State. It does, indeed, disclaim any right of either t...

711. The Power Of Congress To Vest In Military Tribunals Exclusive Jurisdiction Over All Offenses Committed By Military Persons, Including Offenses Which Are Also Crimes Against The Civil Law: There is an obiter dictum upon this point in Coleman v. Tennessee.14 The point directly decided in that case was that a certain section (30) of the Enrollment Act had not, as a matter of fact, made th...

712. Powers Of Military Tribunals In Times Of War: In time of war, and especially upon the actual theatre of war, military courts have, without express legislative authorization, exclusive jurisdiction over the members of the military forces. As the c...

713. Powers Of The Commander-In-Chief Of The Army And Navy: The constitutional commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the service of the United States, is the President17 Through...

714. Declaration Of War: To Congress is expressly granted by the Constitution the power to declare war. By war is meant an armed conflict of a public nature, the parties to which are recognized as belligerents and entitled to...

715. The Prosecution Of War: The constitutional power given to the United States to declare and wage war, whether foreign or civil, carries with it the authority to use all means calculated to weaken the enemy and to bring the st...

716. The Organization And Disciplining Of The Militia: As has been seen, the organizing, arming and disciplining of the militia, and the prescribing of the discipline for training them is expressly placed within the control of Congress. The actual train...

717. The Militia As An Arm Of The Federal Government: The Constitution enumerates three purposes for aid in the effectuation of which the United States militia forces may be mandatorily called upon by the General Government. These are (1) to execute the ...

718. The Use Of The Militia And Federal Troops To Suppress Domestic Disorder: From the foregoing it is seen that in all cases in which the integrity or existence of the National Government is attacked or threatened, or a resistance offered to the execution of its laws too great...

719. Military Government: In a previous chapter the special administrative law governing persons in the military service of the United States has been considered. We have now to speak of the law regulating the conduct of the n...

720. Military Government Of Foreign Territory: Military government of foreign territory by the armed forces of the United States may exist either as the result of hostile occupation in time of war, or by friendly international agreement, in time o...

721. Military Government Of Hostile Domestic Territory: In practically all respects the laws governing the military occupation of hostile foreign territory apply to the military occupation of hostile domestic territory in time of a civil war which has assu...

722. Military Government Of Domestic Territory In Times Of Peace: Military governments established on foreign territory in time of war do not necessarily come to an end with the declaration of peace and the annexation of the occupied territory to the United States; ...

Military Government Of Domestic Territory In Times Of Peace. Continued: The powers of the military government in time of peace in domestic territory being those simply of a local administrative agent of the United States, are subject to two general limitations. First, bei...

Chapter LXII. Martial Law. 723. Martial Law Defined: In the most comprehensive sense of the term, Martial Law includes all law that has reference to, or is administered by, the military forces of the State. Thus it includes (1) Military Law Proper, that...

724. Martial Law A Form Of The Police Power: That which brings martial law closely into relation with military law is the fact that it is administered by the armed forces of the State, and that it partakes, in a measure at least, of its absolute...

725. Police Power Defined: One of the classic definitions of the Police Power is that of Chief Justice Shaw, given in his opinion in Commonwealth v. Alger.4 He says: We think it is a settled principle, growing out of the natur...

726. Police Power Limited: Though, as we have seen, there are necessarily many circumstances under which the political power, in behalf of public interests, may interfere with the freedom of action of the individual and the use...

727. Martial Law Does Not Abrogate Civil Law And Civil Guarantees: There is, then, strictly speaking, no such thing in American law as a declaration of martial law whereby military is substituted for civil law. So-called declarations of martial law are, indeed, often...

728. Martial Law And Military Government Distinguished: It is thus seen that martial rule, that is, the use of the military arm for the enforcement of civil law, is something quite different from the establishment of military government over territory conq...

729. Luther V. Borden: At the time of Dorr's Rebellion the legislature of Rhode Island passed the following act: Be it enacted . . . the State of Rhode Island and Providence Plantations is hereby placed under martial law, ...

730. Martial Rule And War Distinguished: The correctness of the reasoning and of the conclusion of the Chief Justice in this case cannot be questioned except in one respect. Speaking of the condition of affairs existing at the time the alleg...

731. Powers Of Military Commander In Cases Of Domestic Disorder: It is to be observed before leaving this point that, so far as regards the acts that may be done by military and civil authorities in effectuating their purposes, the necessity for them being present,...

732. Martial Law In Time Of War: Thus far the discussion has related to martial rule as exercisable in time of peace, that is, in times when, to be sure, civil disorder prevails, but when war - public war - does not exist. We have no...

733. Exercise Of Military Authority Outside The Immediate Theatre Of War: Ex Parte Milligan: Under the stress of military exigency, upon the actual theatre of war such civil guarantees as the writ of habeas corpus, immunity from search and seizure, etc., may, of course, be suspended. As to th...

Exercise Of Military Authority Outside The Immediate Theatre Of War: Ex Parte Milligan. Continued: It is said that the jurisdiction [of the military commission] is complete under the 'laws and usages of war.' It can serve no useful purpose to inquire what those laws and usages are, whence they ori...

734. Criticism: There would seem to be but little question but that the doctrine stated by the majority in the Milligan case is essentially a sound one, namely, that actual necessity and not constructive necessity as...

735. Mitchell V. Clark Considered: In 1863 Congress passed an act for the protection of military persons against suits for certain acts done by them during the war without authority of law. The fourth section of this law read: And be...

736. Habeas Corpus: The writ of habeas corpus ad subjiciendum is one of a number of so-called extraordinary judicial writs, which like those of certiorari, quo warranto, mandamus and injunction are issued by the courts e...

737. Suspension Of The Writ: The United States Constitution 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. 30 The...

738. Power Of The President To Suspend Its Writ: In Ex parte Bollman33 the Supreme Court in its opinion took for granted that the power of suspension lay with Congress, and the same view was held by Story in his Commentaries.34 In the Bollman case ...

Chapter LXIII. The Separation Of Powers. 739. The Separation Of Powers: A fundamental principle of American constitutional jurisprudence, accepted alike in the public law of the Federal Government and of the States, is that, so far as the requirements of efficient adminis...

740. Separation Of Powers In The States Not Compelled By The Federal Constitution: It is to be observed that this general acceptance by the States of the principle of the separation of powers is not one forced upon them by federal law,5 except in so far as the prohibition of the Fou...

741. Powers Separated In The Federal Government: The federal Constitution does not contain a specific distributing clause, but its equivalent is found in the clauses which provide that all legislative power herein granted shall be vested in a, cong...

742. Separation Of Powers Not Complete: While, as has been said, the principle of the separation of powers has generally been accepted as binding in our systems of constitutional jurisprudence - state and national - the practical necessitie...

743. The General Principle Stated: Thus it is not a correct statement of the principle of the separation of powers to say that it prohibits absolutely the performance by one department of acts which, by their essential nature, belong t...

744. Distinction Between Legislative And Judicial Acts: In a dissenting opinion rendered in the Sinking Fund Cases9 Justice Field says: The distinction between a judicial and legislative act is well defined. The one determines what the law is, and what ri...

745. Declaratory And Retroactive Legislation: The foregoing distinctions support the doctrines that have been established with reference to the legislative enactment of declaratory and retroactive statutes. Declaratory statutes, that is, those l...

746. Legislative Control Of Judicial Procedure And Powers: The power of the courts to refuse to apply legislative acts inconsistent with constitutional provisions has already been considered. This is as far as the courts will go in the control of the legislat...

747. Jurisdiction And Judicial Power Distinguished: It has been already pointed out that the jurisdictions of the inferior federal courts and the appellate jurisdiction of the Supreme Court is wholly within the control of Congress, depending as they do...

748. Powers Of Courts To Punish Contempts: Within recent years the question of the constitutional extent of the legislative control over the powers of the courts has been discussed with especial reference to the regulation of the courts' power...

749. Pardoning Powers Of The President And Contempts: Arguing from the general principle of the independence of the three departments of government it would seem that the question as to the power of the President to pardon persons adjudged by one of the ...

750. Power Of Congress To Punish For Contempt: In 1821 the Supreme Court by a decision rendered in the case of Anderson v. Dunn23 recognized the existence in Congress of a general power to punish for contempt persons disobeying its orders, especia...

751. The Performance Of Administrative Acts By The Courts: Courts have no hesitation in performing ministerial acts, if such acts are incidental to the exercise of their proper judicial functions. But they will not perform administrative acts not so connected...

752. Judicial Review Of Administrative Determinations: Though, as the foregoing cases show, the courts will not consent to exercise jurisdiction where their decisions are reviewable by administrative officials, they have not refused themselves Id review d...

753. Judicial Powers Of Administrative Agents: From what has gone before it will have been seen that though the courts will not perform administrative acts, there is no constitutional objection to vesting the performance of acts essentially judici...

Chapter LXIV. Conclusiveness Of Administrative Determinations. 754. Due Process Of Law Does Not Deman'D Determination Of Rights In Courts Of Law: Due process of law does not require that personal and property rights shall in all cases be finally determined in courts of law. A leading case upon this point is Murray v. Hoboken Land & Improvement ...

Due Process Of Law Does Not Deman'D Determination Of Rights In Courts Of Law. Continued: Of course, when we speak of the conclusive presumptions attending a patent for lands, we assume that it was issued in a case where the department had jurisdiction to act and execute it; that is to sa...

755. Fraud Orders: In Public Clearing House v. Coyne12 was sustained the constitutionality of a congressional delegation of authority to the Postmaster-General to determine, without the aid of the courts, whether the ma...

756. Chinese Exclusion Cases: In the various Chinese exclusion cases the same principles as those already laid down have been applied. Inasmuch, however, as their application has involved questions of personal liberty rather than ...

757. The Ju Toy Case: In United States v. Sing Tuck,22 the contention was made that the question, whether or not a person seeking admission was an alien, necessarily involved the authority of the immigration officials to a...

758. Constitutional Requirements Of Administrative Determinations: The series of cases, culminating in that of United States v. Ju Toy, considered in the preceding paragraphs, are to be construed as determining simply that when, by statute, the conclusive determinati...

759. Arbitrary Administrative Discretion: Generally speaking, it may be said that while wide discretionary power may constitutionally be granted to administrative agents, that discretion must be one which must be guided by reason, justice, an...

760. Mandamus: In an earlier chapter of this treatise it has been pointed out that the courts will not by mandamus or other writ attempt to control the exercise by executive or administrative agents of a discretion ...

761. Ministerial Acts: Marbury V. Madison: The American case which is usually cited as establishing once for all this rule is Marbury v. Madison.34 That case, however, was a contribution to the law of the subject, not as determining the princi...

762. Mandamus May Not Be Used In Place Of An Appeal: The courts will not interfere by mandamus with executive officers of the government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law. The...

763. The Amenability Of The President To Compulsory Judicial Process: From the foregoing it has appeared that, for the performance of a purely ministerial act, a mandamus will lie to the heads of the great departments of the Federal Government, and, a fortiori, to their...

764. Mississippi V. Johnson: In Mississippi v. Johnson,45 decided in 1866, a perpetual injunction was sought to restrain the President from executing the Reconstruction Acts, which were alleged to be unconstitutional. The petitio...

765. Georgia V. Stanton: The court having thus held that the President might not be restrained from executing the Reconstruction Acts an injunction was prayed to restrain the Secretary of War and other military officials from...

766. Head Of Executive Department Acting For The President; When Amenable To Writ: As was intimated in Marbury v. Madison, a chief of one of the executive departments, when acting under the direct orders of the President, with reference to a matter which has, by the Constitution, be...

767. Obligation Of The President To Enforce Laws Believed By Him To Be Unconstitutional: That the President has the right to veto an act of Congress because he believes it to be an unconstitutional measure, even though he thus substitutes his judgment as to this for that of Congress, is b...

768. Liability Of The State For The Acts Of Its Officers: The doctrine of the non-suability of the State prevents the prosecution of a claim against the United States, whether that claim be founded upon a tort of one of its agents, or is one arising out of a...

769. Legal Liability Of Public Officials To Private Individuals Injured By Their Acts; Ultra Vires Acts: As has elsewhere been shown in this treatise, a fundamental principle of American law is that the legality of acts of public officers is determined in the ordinary courts according to the same rules t...

770. Mandamus To Compel Performance Of Commands Of Administrative Superior: As earlier pointed out, where the performance of a ministerial duty is commanded by an administrative superior, mandamus will issue to the subordinate compelling obedience thereto.57 Moreover, in very...

771. Responsibility Of Officers For Improper Exercise Of Authority; Malice, Etc: Thus far we have been considering the criminal and civil responsibility of public officers for ultra vires and otherwise illegal acts. We have now to consider their responsibility to private individua...

772. Responsibility Of Judges Of Courts Of Superior Or General Jurisdiction: That judges of courts of superior or general jurisdiction are not liable to civil suits for judicial acts, even though maliciously or corruptly done, has already been indicated, the cases in point bei...

Chapter LXV. The Delegation Of Legislative Power. 773. Delegated Power May Not Be Delegated: One of the settled maxims in constitutional law is that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereig...

774. Local Governing Powers May Be Delegated: The exception is with reference to the delegation of powers to local governments. The courts have held, as to this, that the giving by the central legislative body of extensive law-making powers with ...

775. Power To Issue Administrative Ordinances May Be Delegated: The qualifications to the rule prohibiting the delegation of legislative power which have been earlier adverted to are those which provide that while the real law-making power may not be delegated, a ...

776. Field V. Clark: The doctrine thus declared is without objection so long as the facts which are to determine the executive acts are such as may be precisely stated by the legislature and certainly ascertained by the e...

777. Other Illustrative Cases: The question when an administrative discretion is so broad as to amount to a legislative power is one that may not be answered according to any fixed formula, but one that has to be answered in each i...

778. Delegation Of Rate-Making Powers: That the fixing of the rates or charges that may be collected by public service corporations for the services rendered by them is, primarily at least, a legislative function, is so well established th...

779. The Referendum As A Delegation Of Legislative Power: As to whether the so-called referendum employed in some of the States is an unconstitutional delegation by the legislature of law-making powers to the people, there is a conflict of authorities. The...

780. Administrative Ordinances: The authority that administrative agents may constitutionally exercise in the promulgation of rules and ordinances regulating in detail the execution of the laws the enforcement of which has been plac...

781. Penal Ordinances: The courts scrutinize with especial care those cases in which a criminal action is based upon the violation of an administrative order. It is not questioned that the legislature may attach a criminal ...

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