CHAPTER IV:
OF THE RIGHTS, PRIVILEGES, AND IMMUNITIES OF THE CITIZEN
The rights, privileges, and immunities now enjoyed by
citizens of the States composing the United States, whether as
citizens of the States or of the United States, originated in
rights possessed or claimed by the inhabitants of the thirteen
American colonies, while they were dependencies of Great Britain.
The struggle of the American colonists for independence was based
upon the claim that they were denied, by the parent government,
rights, privileges, and immunities which were their common
heritage as British freemen, or which had from time to time been
granted specifically to the American colonies.
No written chart in existence, then or now, has ever
attempted to enumerate, clarify, and define in one succinct
expression, the rights, liberties, and franchises possessed by
English subjects, nor is it the purpose of this volume to attempt
to do that. It is sufficient to say that the liberties and right
of self-government of the British people, beginning with the
declarations of Magna Carte, have been ascertained and declared
from time to time, during six centuries of conflict between the
people of the British realm and their successive sovereigns,
until they are now well established and quite thoroughly
understood.
Notwithstanding the British people have retained in their
government the form of a limited monarchy, they have established
for themselves as against their constitutional monarch, a measure
of popular sovereignty and personal liberty as great as that
possessed by any other people in the world. Our boast is that
ours is a free republic; that it is doubtful whether, although we
have a president instead of a king, and a supreme court with
certain power to control both executive and legislative action,
the King of England, on the whole, possesses as much independent
authority as the President of the United States.
Although the struggle of the American colonists was based
upon the claim that the parent government denied the inhabitants
of the colonies the guaranteed rights of British citizens, the
American colonists, even under British dominion, were accorded
and actually enjoyed many rights, privileges, and franchises,
peculiar to themselves, not enjoyed by Englishmen at home, or
even of British origin; some of which have not, to this day, been
adopted in their entirety in England.
Source of American Plan of Government
and Rights of Citizenship
Many of the declarations of popular rights set forth in the
American Declaration of Independence were of rights which were
not of English origin. The American colonists had become
familiar with the rights of citizenship possessed in other
countries, both from the fact that some of them resided in
Holland for a time, before they came to America, and from the
further fact that the New York colony was essentially Dutch in
its original settlement and government. It is plain to see, by
comparison with other historic documents, that the Declaration of
Independence of 1776 was modeled, to a large extent, not upon
English precedents, but upon the written constitution of the
Netherlands Republic, called The Union of Utrecht, of 1579.
The manifesto issued by the rebels at the time of Bacon's
Rebellion in Virginia in 1676 contains much from the same source.
The Union of Utrecht and Bacon's Rebellion antedated, one by one
hundred years and the other by three years, the Exclusion Act of
1679, by which James ][I of England was deposed, and which, by
some writers, has been referred to as the source from which the
claim set forth in the Declaration of Independence were derived.
Nor did the American ideas of a written constitution and a
supreme court emanate altogether from Englishmen. They were the
results of the co-operative labors of Puritans and Cavaliers,
Dutchmen, Huguenots, and Scotch-Irishmen, assembled in convention
in America, working for a common end, upon models derived from
many countries with whose governments they were familiar. For
example, the demand for the separation of Church and State, which
is a leading tenet of American government, is not of British
origin. Virginia was foremost in this contention. She abolished
tithes and forfeited glebe lands. The change was brought about
through the influence of Patrick Henry, a Scotch dissenter; and
of Thomas Jefferson, a man of Welsh origin, with views derived
from a study of Dutch precedents.
So, too, the abolition of privileged classes was distinctly
anti-English.
The American system of land tenures, the abolition of
entails and primogenitures, and our methods of transfer of real
estate, are all anti-English in their origin. Entails and
primogenitures were cherished institutions of England. Our system
of transferring real estate by the registration of deeds came
from Holland, and has not, even to the present day, been fully
adopted in England. Our laws governing the transfer of personal
property and our whole system of mercantile law are adaptations
of Continental and Roman methods, modified so as to make them
applicable to our modern conditions. We owe nothing to England
for our system of elections or for our public prosecutors. The
idea of a public prosecutor or commonwealth's attorney came from
Holland.
Our system of charitable institutions, hospitals, and
prisons is not modeled upon English precedents. The charitable
institutions, hospitals, and prisons of the colonies antedated
those in England. The first of these established in the American
colonies were copied from Dutch models, and the admirable system
now existing in England is derived largely from a study and
adoption of those which were first established in the Dutch
colony of New York and in the Quaker colony of Pennsylvania.
So, too, the American citizen derived his principles of
religious toleration, not from England, but from the Dutch. As
late as 1663, when the representatives of the Crown in the
English colonies were, under orders from England, persecuting
Quakers and Anabaptists and demanding that they take the oath of
allegiance and conformity or suffer punishment; when Puritans
were driving Pilgrims from Massachusetts into Rhode Island, and
Virginians placing the King's broad arrow on the houses of
dissenters in Maryland, the Dutch colony of New York was
receiving orders from Amsterdam proclaiming that the conscience
of men ought to remain free. The orders read: "Let every one
remain free as long as he is modest, moderate, his political
conduct irreproachable, and as long as he does not offend others
or oppose the government"(1) This was twenty years before Penn
came to America, and, even after he came, the Scotch-Irish and
Germans were driven from Pennsylvania by Logan's oppressive
administration of the Quaker laws, and sought asylum in the
Shenandoah valley of Virginia.
The Pilgrims in Rhode Island proscribed Catholics and
deprived them of suffrage, on account of their religion, from
1719 to 1783.
Mr. Madison is authority for the statement that the example
of Holland led to the constitutional provision forbidding
Congress from making any enactment "respecting an establishment
of religion" or abridging the freedom of the press.
Perhaps there is no other thing in which the citizen of the
United States takes greater pride than in our system of public
education. The privilege of public-school education for his
children is possessed by every citizen of the United States in
the State of which he is a citizen, no matter how humble or
ignorant he may be or how limited his own rights. This privilege,
like the others named, is distinctly not of English origin. At
the time of tho departure of the original colonists from England
for America, no system of public education existed in Great
Britain. None exists there to-day, comparable, in thoroughness,
with our own. Long residence in Holland made some of the earliest
American settlers familiar with the benefits of public education
and the advantages of the free school system of the Dutch. But a
thorough system of free education was installed in the Dutch
colony of New York fully twenty years before any school system
was adopted by the New England colony,. Sparseness of population
in the southern colonies rendered free schools almost
impracticable there. But they were established in the populous
Dutch communities and among the Scotch-Irish of the Shenandoah
valley in Virginia, from the time of the earliest settlements
there.
Notwithstanding the southern colonies were backward, the
greatest impetus to public education in the Northwest Territory,
after the colonies were independent, came from the southern
section; for when Virginia ceded her rights in the Northwest
Territory to the Federal government, she demanded through her
representatives in Congress, Richard Henry Lee and Paul
Carrington, the condition in the Ohio ordinance of 1787,
requiring that alternate sections of the public lands should be
dedicated to purposes of public education.(2)
Having now traced the ideas of the American colonists
concerning plans of government and rights of citizenship to the
sources whence they sprung, let us next consider how far these
rights have been incorporated in the governments which they
established.(3)
Rights of Citizens of the States
Let us first examine the rights of citizens as citizens of
the States; for these clearly antedate whatever rights they
possess as citizens of the United States, by a period equal to
that which elapsed between the acknowledgment of the independence
of the thirteen independent colonies by Great Britain, and the
formation of the Union by the States themselves.
No State in the Union has ever sought to embody in one
written chart a full expression of all the rights, privileges,
and immunities of its citizens. Nor will the attempt now be made.
On this subject we shall content ourselves with the language of
Mr. Justice Washington, construing Section 2 of Article IV of the
Constitution of the United States, which provides: "Citizens of
each State shall be entitled to all privileges and immunities of
citizens in the several States." He said:
"The inquiry is, What are the privileges and immunities of
citizens in the several States? We feel no hesitation in
confining these expressions to those privileges and immunities
which are in their nature fundamental, which belong of right to
the citizens of all free governments, and which have at all times
been enjoyed by the citizens of the several States which compose
this Union, from the time of their becoming free, independent,
and sovereign. What these fundamental principles are, it would
perhaps be more tedious than difficult to enumerate. They may,
however, be all comprehended under the following general beads:
protection by the government; the enjoyment of life and liberty,
with the right to acquire and possess property of every kind, and
to pursue and obtain happiness and safety; subject, nevertheless,
to such restraints as the government may justly prescribe for the
general good of the whole."(4)
Mr. Justice Miller, in the Slaughter-House Cases,(5) said,
with reference to this observation of Mr. Justice Washington:
"The description, when taken to include others not named,
but which are of the same general character, embraces nearly
every civil right for the establishment and protection of
which organized government is instituted."
While it is undoubtedly true that the attempt to enumerate
these rights of citizenship would be more tedious than difficult,
and while it may be unnecessary to enumerate and classify them,
especially as the order of their enumeration varies in the
different States, it seems proper to advert to the earlier
expressions in the first bill of rights framed by one of the
original States, to ascertain what our Revolutionary forefathers
conceived to be the most important of the rights for which they
were contending.
State Bills of Rights
The Bill of Rights of Virginia, drafted by George Mason, is
perhaps the most famous of all these bills of rights, and may be
taken as an example, as it was made the model of many States
afterwards formed. It was unanimously adopted by the Virginia
convention, June 12, 1776.(6) It recites the following as basic
and foundational principles of government, and declares that they
pertain to the good people of the commonwealth and their
posterity:
1. That all men are by nature equally free, independent,
and have certain inherent rights, of which, when they
enter into a state of society, they cannot, by any
compact, deprive or divest their posterity; namely, the
enjoyment of life and liberty, with the means of
acquiring and possessing property, and pursuing and
obtaining happiness and safety.
2. That all power is vested in, and consequently derived
from, the people; that magistrates are their trustees
and servants, and at all times amenable.
3. That government is, or ought to be, instituted for the
common benefit, protection, and security of the people,
nation, or community; of all the various forms and
modes of government, that is beat which is capable of
producing the greatest degree of happiness and safety,
and is most effectually secured against the, danger of
maladministration; and that, when any government shall
be found inadequate or contrary to these purposes, a
majority of the community hath an indubitable,
unalienable, and indefeasible right to reform, alter,
or abolish it in such manner as shall be judged most
conducive to the public weal.
4. That no man, or set of men, are entitled to exclusive
or separate emoluments or privileges from the
community, but in consideration of public services;
which not being descendible, neither ought the offices
of magistrate, legislator, or judge to be hereditary.
5. That the legislative and executive powers of the State
should be separate and distinct from the judiciary;
and, that the members of the two first may be
restrained from oppression, by feeling and
participating the burdens of the people, they should,
at fixed periods, be reduced to a private station,
return into the body from which they were originally
taken, and the vacancies be supplied by frequent,
certain, and regular elections, in which all or any
part of the former members to be again eligible, or
ineligible, as the laws shall direct.
6. That election of members to serve as representatives of
the people, in assembly, ought to be free; and that all
men having sufficient evidence of permanent common
interest with and attachment to the community, have the
right of suffrage, and cannot be taxed or deprived of
their property for public uses, without their own
consent, or that of their representatives so elected,
nor bound by any law to which they have not in like
manner assented for the public good.
7. That all power of suspending laws, or the execution of
laws, by any authority, without consent of the
representatives of the people, is injurious to their
rights, and ought not to be exercised.
8. That, in all capital or criminal prosecutions, a man
hath a right to demand the cause and nature of his
accusation, to be confronted with the accusers and
witnesses, to call for evidence in his favor, and to a
speedy trial and impartial by of his vicinage, without
whose unanimous consent he cannot be found guilty; nor
can he be compelled to give evidence against himself;
that no mun be deprived of his liberty except by the
law of the land, or the judgment of his pears.
9. That excessive bail ought not to be required, nor
excessive fines imposed, nor cruel and unusual
punishments indicted.
10. That general warrants, whereby an officer or messenger
may be commanded to search suspected place without
evidence of a fact committed, or to seize any person or
persons not named, or whose offense is not particularly
described and supported by evidence, are grievous and
oppressive and ought not to be granted.
11. That, in controversies respecting property, and in
suits between man and man, the ancient trial by jury is
preferable to any other, and ought to be held sacred.
12. That the freedom of the press is one of the great
bulwarks of liberty, and can never be restrained but by
despotic governments.
13. That a well-regulated militia, composed of the body of
the people, trained to arms, is the proper, natural,
and safe defense of a free state; that standing armies,
in time of peace, should be avoided, us dangerous to
liberty; and that in all cases the military should be
under strict subordination to, and governed by, the
civil power.
14. That the people have a right to uniform government; and
therefore, that no government separate from, or
independent of, the government of Virginia ought to be
erected or established within the limits thereof.
15. That no free government, or the blessings of liberty,
can be preserved to any people, but by a firm adherence
to justice, moderation, temperance, frugality, and
virtue, and by frequent recurrence to fundamental
principles.
16. That religion, or the duty which we owe to our Creator,
and the manner of discharging it, can be directed only
by reason and conviction, not by force or violence; and
therefore all men are equally entitled to the free
exercise of religion, according to the dictates of
conscience, and that it is the mutual duty of all to
practice Christian forbearance, love and charity,
towards each other.
This immortal declaration of the principles of popular
sovereignty has been set forth at length because it embodies in
itself the substance of all similar declarations in the other
colonial conventions, and was either incorporated into the
Declaration of Independence itself, which was adopted twenty-two
days later, or into the earliest amendments of the Constitution
of the United States. Of the first ten amendments to the
Constitution of the United States, which may be considered as
adopted contemporaneously with the Constitution itself, six
merely reaffirm the principles enunciated in George Mason's bill
of rights.
National Declaration of Independence
When we come to a study of the Declaration of Independence
itself we find a reassertion of c concerning the equality of men,
their unalienable rights, that government is instituted to secure
those rights, that it derives its just power from the consent of
the governed, and the right of the people, when it becomes
destructive of those ends, to alter or abolish it and institute a
new government.
After declaring that long established governments should not
be changed for light and transient causes, it proceeds to arraign
the British government for a long train of abuses and
usurpations. We may gather, from the enumeration of those abuses,
the following claims made by the revolutionists concerning the
rights, privileges, and immunities of citizens:
1. The right of representation in the legislature, a right
inestimable to them.
2. The right to have representative bodies assembled at
usual and comfortable places convenient to the
depository of their public records.
3. The right to have frequent sessions of the legislature.
4. The right to have a system of naturalization laws.
5. The right to have an independent judiciary.
6. The right to oppose a multitude of offices.
7. The right to oppose standing armies in time of peace.
8. The right to have the civil power superior to the
military power.
9. The right to resist quartering of armed troops among
them.
10. The right to trade with the outside world.
11. The right to as voice in taxation.
12. The right to trial by a jury of the vicinage.
13. The right of Local self-government.
The Federal Constitution
We have already seen that during the period in which the
States co-operated under articles of confederation, the rights,
privileges, and immunities of their citizens were derived
exclusively from their respective States, and that the power of
the United States did not extend to the control of the
individual, save in a few limited and specified cases; and that
as then constituted the United States did not attempt to grant or
guarantee to the individual citizen any rights, privileges, or
immunities, save to citizens of one State in another State.(7)
When, upon the adoption of the Federal Constitution, Federal
power operated directly upon individual citizens of the limited
States, the number of Federal guarantees of their rights was
extended also. These guarantees were the necessary correlatives
of the specific powers granted to the Federal government, and are
the supreme law of the land on the subjects to which they refer.
But it by no means follows from this that the Federal
government is supreme concerning all the rights, privileges, and
immunities of the citizen. On the contrary, while it is supreme
in its sphere and possesses ample authority to enforce the powers
expressly delegated to it by the Constitution, it is only a
government of delegated and limited powers, and the States, in
forming it, expressly retained and reserved in themselves the
absolute control, direction, and sovereignty over their citizens
concerning a vast residuum of rights, privileges, and immunities
which, prior to the adoption of the Constitution, they had
regulated exclusively.(8) For instance, it has never been
contended that the Constitution, as originally framed, created in
the Federal government any power to establish any code of
municipal law applicable to the States composing it, regulative
of all private rights between man and man in society, or that
Congress may usurp the powers of State legislatures concerning
such legislation. The Supreme Court of the United States has
repeatedly taken occasion to point out that no such power exists,
either under the original Constitution or by virtue of any of the
amendments.(9) As we shall see later, a vast amount of litigation
which has arisen under the constitutional amendments has been
based upon a confused notion that the XIII, XIV, and XV
Amendments in some way altered and extended the general scope of
Federal powers, even to the point of effecting this fundamental
change. But an unbroken line of Federal decisions has denied that
such a change in the organic structure of the Federal government
was either contemplated or effected by the amendments, and point
out that the legislation which Congress is authorized to enact
under the amendments is not general legislation upon the rights
of citizens, but only certain corrective legislation, if such be
necessary, to counteract State legislation prohibited by the
amendments upon special subjects named in the amendments.(10)
When we come to examine the multitudinous decisions of the
Supreme Court on questions which have arisen under the amendments
it will be seen that the cases have for the most part not
originated in any alleged act of the Federal government invading
the sphere of State action, but upon the contention made by
citizens of the States that Federal powers, as enlarged by the
amendments, are much more far-reaching and restrictive upon State
powers than the Federal courts themselves have been willing to
admit. The decisions rendered by the Supreme Court have in an
overwhelming majority of cases been against the broad effect of
the constitutional amendments as authorizing extended Federal
powers, or as restricting State powers, contended for by the
citizens; and they declare unanimously the continuing power of
the States, notwithstanding the amendments, to regulate
exclusively the rights, privileges, and immunities of citizens
upon the matters in issue, subject only to the particular
limitations named in the amendments.(10)
Seeing now that the rights, privileges, and immunities of
the citizens are dependent, for acknowledgment and protection,
upon dual governments, just as the allegiance of the citizen is
due to dual governments, let us next consider the safeguards and
protections of those rights offered to the citizen by the Federal
and State governments. And, as the Federal government, although
limited in its sphere, is supreme, and as all other rights, not
derived from or guaranteed by it, depend for their recognition
and protection upon the States, the orderly method of
consideration would seem to be, to inquire first what rights of
the citizen the Federal government grants or undertakes to
protect, and what it has neither granted nor undertaken to
guarantee. For all rights not so granted or guaranteed by the
Federal government are dependent for their existence and their
continuance upon the State of which the individual is a
citizen.(11)
Rights, Privileges, and Immunities Granted or
Guaranteed to the Citizen by the United States
These may be classified as follows:
1. Rights granted or guaranteed by the Constitution of the
United States as originally framed, or by the first
twelve amendments thereto.
2. Rights granted or guaranteed by the XIII, XIV, and XV
Amendments.
First, then, the rights, privileges, or immunities granted
or guaranteed to the citizen by the Constitution of the United
States as originally framed, or by the first twelve amendments
thereto, are, in the order of their enumeration, or by necessary
implication, as follows:
1. A right, That citizens of the States composing the
Union, having the qualifications requisite for electors
of the most numerous branch of the State legislature,
shall possess the right and privilege of electors for
members of the House of Representatives of the United
States chosen every second year by the people of the
United States. (Art. 1, Sec. 2, Cl. 1.) (12)
2. A privilege. That such citizens shall be eligible to
membership of the House of Representatives, if they
possess certain qualifications of age, length of
citizenship, and are inhabitants of the State from
which they are chosen. (Art. 1, Sec. 2, Cl. 2.)
3. A right. That representatives and direct taxes shall be
apportioned, among the several States, according to
their respective numbers, which shall be determined by
adding to the whole number of free persons, including
those bound to service for a term of years, and
excluding Indians not taxed, three-fifths of all other
persons. This clause is, however., amended, in respect
to apportionment of representation, by the XIV
Amendment, Sec. 2. (13)
4. A right. To have an enumeration or census, every ten
years, according to law, to determine the basis of
representation, but with a proviso that representatives
shall not exceed one for every 30,000, but that each
State shall have at least one representative. (Art. I,
Sec. 2, Cl.3, Par. 2) (14)
5. A privilege. That citizens possessing defined
(qualifications of age, length of residence, and
habitation, shall be eligible as United Staten
senators. (Art. I, @. 3, 01. 3.)
6. An immunity. Against the trial of impeachments by any
other body than the Senate, or conviction without a
concurrence of two-thirds of the members present; and
against any judgment in such case extending further
than to removal from office and disqualification to
hold and enjoy any office of honor, trust, or profit
under the United States. (Art. I, @. 3, Cl. 6.)(15)
7. An immunity. From arrest, except for treason, felony,
or breach of the peace, while attending Congress as a
member or going to or returning from the same; and from
being questioned for any speech or debate in either
House. (Art. I, Sec. 6, Cl. 1.)(16)
8. A right. That all bills for raising revenue shall
originate in the House of Representatives. (Art. I,
Sec. 7, Cl. 1.)(17)
9. A right. To have the executive sanction of all laws
before they become effective, unless they be passed
over the President's veto. (Art. I, Sec. 7, Cl. 2.)
(18)
10. A right. That all duties, imposts, and excises imposed
by Congress shall be uniform throughout the United
States. (Art. 1, Sec. 8, Cl. 1.)(19)
11. An immunity. From any laws passed by any State, or
other authority than Congress, regulating commerce with
foreign nations and among the several States, and with
the Indian tribes. (Art. I. Sec. 8, Cl. 3.)(20)
12. A right. To uniform Federal laws of naturalization and
bankruptcy throughout the United States. (Art. 1, Sec.
8, Cl. 4.)(21)
13. A right. To a Federal coinage and standard of weights
and measures. (Art. 1, See. 8. Cl. 5.)(22)
14. A right. To an established Federal postal system and
post roads. (Art. I, See. 8, CL 6.)(23)
15. A right. To a Federal system of patent rights and
copyrights. (Art. 1, Sec. 8, Cl. 8.)(24)
16. A right. To a supreme court and a system of federal
courts inferior to the supreme court. (Art. HI, Bees. I
and 2; Art. 1, Sec. 8, Cl. 9.)(25)
17. A right To Federal protection against piracies and
felonies committed on the high seas and offenses
against the law of nations. (Art. 1, Sec. 8, Cl.
10.)(26)
18. An immunity. Against any declaration of war or the
granting of letters of marque and reprisal except by
the United Staten. Art. 1, Sec. 8, Cl. 4.)(27)
19. An immunity. Against any appropriations for war
purposes by Congress, under its power to raise and
support armies, for a longer term than two years. (Art.
I, See. 8, Cl. 12.)(28)
20. A right. To the creation and maintenance of a navy by
the Federal government (Art. 1, Sec. 8, Cl. 13.)(29)
21. A right. To the use of the militia under the call of
the Federal government, for executing the laws of the
Union, suppressing insurrections, and repelling
invasions. (Art. 1, See. 8, 01. 15.)(30)
22. A right. To exclusive Federal legislation by Congress
over a territory not exceeding ten miles square as a
seat of government, and like authority over all places
purchased for forts, magazines, arsenals, and
dockyards. (Art. 1, See. 8, Cl. 17.)(31)
23. A right. To the privilege of the writ of habeas corpus,
save when it may be suspended for public safety, in
time of rebellion or invasion. (Art. 1, Sec. 9, Cl.
2.)(32)
24. An immunity. Against any bill of attainder or ex post
facto law. (Art. 1, Sec. 9, Cl. 3.)(33)
25. An immunity. Against any capitation or other direct tax
except in proportion to the census above provided for.
(Art. 1, See. 9, Cl. 4.)(34)
26. An immunity. Against any tax or duty on articles
exported from any State. (Art, I, See. 9, Cl. 5.)(35)
27. An immunity. Against any preference to the ports of one
State over those of another; and against the entrance,
clearance, or payment of duties by vessels bound to or
from the ports of one State to or from the ports of
another State. (Art. 1, Sec. 9, Cl. 6.)(36)
28. An immunity. Against the granting of any titles of
nobility by the United States. (Art. 1, Sec. 9, Cl.
8.)(37)
29. Immunities. Against any treaty, alliance, or
confederation entered into by any State, and the
granting of letters of marque or reprisal by any State,
and against the coinage of money or emission of bills
of credit by any State and the making of anything but
gold and silver coin a tender in payment of debts by
any State; and the passage of any bill of attainder or
ex post facto law, or law impairing the obligation of
contracts, or grant of any title of nobility by any
State. (Art. 1, Sec. 10, Cl. 1.)(38)
30. An immunity. From the laying of any impost or duties on
imports or exports by any State, without the consent of
Congress. (Art. I, See. 10, Cl. 2.)(39)
31. Immunities. From any duty of tonnage laid by any State
without the consent of Congress, or the keeping of
troops or ships of war in time of peace by any State,
or the entering into an agreement or compact with
another State or a foreign power, or engaging in war
unless actually invaded or in such immediate danger as
will not admit of delay. (Art. I, Sec. 10, Cl. 3.)(40)
32. A privilege. Of being presidential and vice
presidential elector in the manner provided by the
legislation of. the State. (Art. 11, Sec. 1, Cl.1 and
2.)(41)
33. A privilege. Of being President provided the citizen
possesses the requisite qualifications of birth, age,
and residence. (Art II, Sec. 1, Cl. 4.)(42)
34. A privilege. Of being Vice-President subject to the
same qualifications as last named. (Art. 11, Sec. 1,
Cl. 4.)
35. A privilege. Of suing in the federal courts, on the
terms and subject to the conditions of jurisdiction set
forth in the Constitution and laws. (Art. Ill, Secs. I
Cl. 2.)
36. A right. To trial by jury in the State where the crime
is charged to have been committed in any trial for
crime in a federal court, except in case of
impeachment, and when the crime is not committed within
any State the trial to be at such place or places as
Congress directs. (Art. 111, Sec. 2.)(43)
37. An immunity. From the charge of treason against the
United States, except for levying war against them, or
for adhering to their enemies, giving them aid and
comfort (Art III, Sec. 3, Cl. 1. See Of Treason, supra,
pp. 74 et seq.)
38. A right. To demand, in cases of trial for treason, the
testimony of two witnesses to the same overt act, or a
confession in open court, as the only basis, of
conviction. (Art. III, Sec. 3, Cl. 1.)(44)
39. An Immunity. Against any attainder of treason working
corruption of blood or forfeiture, except during the
life of the person attainted. (Art. III, Sec. 3, Cl.
2.)(45)
40. A right. To demand that each State shall give full
faith and credit to the public acts, records, etc., and
judicial proceedings of every other State. (Art. IV,
Sec. 1.)(46)
41. A right. In the citizens of each State to enjoy all the
Privileges and immunities of citizens in the several
States. (Art. IV, Sec. 2, Cl. 1.)(47)
42. A right. To demand from any State the extradition and
removal of any person who shall flee thereto, who is
charged, in another State, with treason, felony, or
other crane. (Art. IV, Sec. 21 Cl. 2)(48)
43. A right. To demand the delivery, on claim of the party
entitled, of any person held to service or labor, in
one State, who has escaped to another State. (Art. IV,
Sec. 2, 01. 3.)(49)
44. A right. To the performance of the guarantee of the
United States that every State in the Union shall have
a republican form of government, and that the United
States will protect each of them from invasion and
against domestic violence. (Art. IV, Sec. 4.)(50)
45. A right. In each State to equal suffrage in the Senate.
(Art. V.)
These being the only rights, privileges, and immunities
guaranteed to citizens by the Constitution itself, the following
additional appear in the first twelve amendments to the
Constitution: (51)
46. An immunity. Against any law of Congress respecting an
establishment of religion, or prohibiting the free
exercise thereof, or abridging the freedom of speech or
of the press. (Art. 1.)(52)
47. A right. Of the people peaceably to assemble, and to
petition the government for a redress of grievances.
(Art. I)(53)
48. A right. Of the people to keep and bear arms. A right
not to be infringed. (Art. II.)(54)
49. An immunity. From the quartering of troops in any house
in time of peace without the consent of the owner, or
in time of war, except in a manner to be prescribed by
law. (Art. III.)
50. An immunity. Against unreasonable searches or seizures.
(Art. IV.)(55)
51. A right. To demand that search warrants shall not issue
except upon probable cause, supported by oath or
affirmation and particularly describing the place to be
searched, and the person or things to be seized. (Art.
IV.)(56)
52. A right. That no citizen be held to answer to the
Federal government for a capital or otherwise infamous
crime, unless on a presentment or indictment of a grand
jury, except in cases arising in the land or naval
forces, or in the militia, when in actual service.
(Art. V.)(57)
53. An immunity. From being twice put in jeopardy of life
or Limb for the same offense. (Art. V.)(58)
54. An immunity. From being a witness against himself.
(Art. V.)(59)
55. A right. To due process of law before being deprived of
life, liberty, or property. (Art. V.)(60)
56. A right. To just compensation for any property taken
for public use. (Art. V.)(61)
57. A right. To speedy and public trial in all cases of
criminal prosecutions by an impartial jury of the
district wherein any crime is charged to have been
committed, the district to have been previously
ascertained by law; to be informed of the nature and,
cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for
obtaining witnesses in his favor; and to have the
assistance of counsel for his defense. (Art. VI.)(62)
58. A right. In suits at common law, involving a value
exceeding twenty dollars, to a trial by jury. (Art.
VII.)(63)
59. An immunity. From having any fact tried by a jury re-
examined in any court of the United States, otherwise
than according to the rules of common law. (Art.
VII.)(64)
60. An immunity. Against the requirement of excessive bail,
against the imposition of excessive fines, and against
the infliction of cruel and unusual punishments. (Art.
VIII.)(65)
61. A declaration. That the enumeration in the Constitution
of certain rights shall not be construed to deny or
disparage others retained by the people. (Art. IX.)(66)
62. A guarantee. That the powers not delegated to the
United States by the Constitution, nor prohibited to
the States, are reserved to the States respectively, or
to the people. (Art. X.)(67)
In Lloyd v. Dollinson, decided on May 16,1904, the Supreme
Court said that the first eight amendments to the Constitution of
the United States have reference to powers exercised by the
government of the United States and not to those of the
states.(68)
The Eleventh Amendment to the Constitution relates simply to
a limitation of Federal judicial power, and the Twelfth Amendment
to the manner in which presidential and vice-presidential
electors shall meet and cast and certify the electoral vote, and
to the manner of deciding the result; so that they have no direct
significance or bearing on the rights of citizenship.
The first ten amendments to the Constitution were proposed
to the legislatures of the several States by the First Congress,
September 25, 1789. They were ratified by the States, beginning
with New jersey, November 20, 1789, and ending with Virginia,
December 15, 1791. There is no evidence on the journals of
Congress that the legislatures of Connecticut, Georgia, or
Massachusetts ratified them. The Eleventh Amendment was proposed
to the legislatures of the several States by the Third Congress,
September 5, 1794, and was declared to have been ratified by the
legislatures of three-fourths of the States, in a message from
the President to Congress dated January 8, 1798.
The Twelfth Amendment to the Constitution was proposed to
the legislatures of the several States by the Eighth Congress,
December 12, 1803;, in lieu of the original third paragraph of
the first section of the second article, and was declared adopted
in a proclamation of the Secretary of State, September 25, 1804.
From 1804 to 1865 the Constitution and twelve amendments
remained unchanged.
It was not until February 1, 1865, that the Thirteenth
Amendment or first of the great "war amendments" was proposed. It
was declared adopted in a proclamation of the secretary of state,
dated December 18, 1865. The Fourteenth Amendment was proposed
June 16, 1866, and declared adopted July 21, 1868. The Fifteenth
Amendment was proposed February 27,1869, and proclaimed as
adopted March 30, 1870.
Let us now inquire into the rights, privileges, and
immunities of citizens, as citizens of the United States and of
their respective States, during the first seventy-six years of
the Union, and afterwards examine how far these rights have been
modified, or State and Federal control of them changed, by the
amendments consequent upon the great Civil War.
The following reflections must result to every student of
the subject, from the foregoing recital.
First. That the correlative relations of government and
citizenship were absolute and unqualified as between the States
and their citizens after the States gained independence and prior
to the formation of the Union.
Second. That the Federal government when formed was one of
limited scope and powers, and after its formation,
notwithstanding the creation and recognition of the sixty-odd
Federal rights, privileges, and immunities as citizens of the
Union, above set forth, a vast residuum of power and control over
the rights, privileges, and immunities of their citizens remained
in the States.
Third. That the Federal government, while supreme in its
sphere, was not framed to reach, and its creation did not affect,
the undelegated powers of the States, in municipal affairs, over
their own citizens and that its power over such was expressly
negatived by the instrument which brought it into being.
This is so manifest that the Constitution might well have
begun with the language of the last of the ten first amendments,
for the States existed before their representatives created the
Union by the delegation of certain enumerated powers, and it goes
without saying that "the powers not delegated to the United
States by the Constitution are reserved to the States
respectively or to the people."
The rights of citizens, both as citizens of the United
States and of the States, under nearly every clause of the
Constitution and the first twelve amendments, were fully
considered and defined before the outbreak of our great Civil
War, by the Supreme Court of the United States. To the great
glory of that tribunal it may be truly said that its
interpretations have been universally recognized as wise,
conservative and just; that if it has erred at all it has been
either towards the reserved powers of the States than towards an
enlargement of Federal power by implication; that for the most
part its judgments have remained unaffected by the excitements
and changes of civil conflict; and that, even concerning such of
its decisions as have been reversed by the logic of events, the
wisdom and justice of its action upon the law and the facts then
before it are now universally admitted, however bitterly they may
have been aspersed at the time those decisions were rendered.
The footnotes on the foregoing pages have set forth every
decision of the Supreme Court upon every clause of the
Constitution and amendments, bearing on the rights, privileges,
and immunities of citizens, and a careful study of those
decisions, as they relate to each of the subjects above set
forth, must be the only satisfactory road to a mastery of the
subjects. What follows is a mere surface index of the substance
of the decisions upon the most important of those questions,
intended to stimulate to a thorough study of the cases.
The citation of authorities in connection with a statement
of the minor topics is deemed a sufficient reference to them.
Proceeding to consider the more important topics in the
order of their presentation above, we come first to the subject -
---
Taxation of the Citizens
(Right 3 above)
The power of taxation of the citizen by the States is
unlimited by law save concerning taxes on exports or imports or
tonnage duties. It is limited in the United States by only three
conditions, the first being that it cannot tax exports, the
second that direct taxes shall be apportioned among the several
States according to their respective numbers, and the third that
all duties, imposts, and excises shall be uniform throughout the
United States. (69)
The grant of taxing power to the United States by the
Constitution has been held to be an absolute grant subject only
to the above limitations. Moreover, the power of taxation
possessed by the United States over citizens of the District of
Columbia has been held to be as unlimited as that possessed by
the States over their citizens.
Many cases have arisen in which the question was whether the
particular tax involved in the controversy was a direct tax; but
in all such cases the decision turned on that, as a question of
fact, and was not instructive beyond the understanding of the
particular statute involved; for, with the nature of the tax
settled, the legal principles applicable to it were those stated
above.
A most thorough and exhaustive discussion of the nature and
extent of Federal taxing power and of what does and does not
constitute a direct tax will be found in the case of Pollock v.
Farmers' L. & T. Co.(70)
Of the Immunity of the Citizen from Arrest,
while Attending Congress, and in Going to and
Returning from the Same, and from Being
Questioned in Any Other Place for Any Speech or Debate
(Immunity 7 above)
This is an old and salutary provision intended to secure to
the representative the utmost degree of freedom in the discharge
of his public duties. A similar provision will be found in the
constitutions of most of the States concerning their State
legislators, and the provision was adopted from the privileges
accorded to members of the British Parliament. As to the nature
and extent of the privilege, the case of Kilbourn v. Thompson(71)
will be found instructive. Mr. Justice Story in his Commentaries
on the Constitution (Sw. 866) refers to it as a "great and vital
privilege."
Of the Immunity of the Citizen from State
Interference with the Regulation of Commerce
with Foreign Nations, and among the Several
States and with the Indian Tribes
(Immunity 11 above)
This exclusive power of regulating commerce was conferred
upon Congress for a reason. It was the offspring of many short-
sighted, vexatious, and discriminating regulations imposed by the
States upon vessels from other States entering their ports, while
they retained the power to legislate on the subject under the
Articles of Confederation. The transfer of the subject to
exclusive Federal control was made deliberately after these
embarrassing experiences. Nearly a hundred years ago the Supreme
Court declared that it was doubtful whether any of the evils of
weakness under the Articles of Confederation contributed more to
the adoption of the Constitution than the conviction that
commerce ought to be regulated by Congress."
No clause of the Federal Constitution has given rise to more
litigation than this so-called commerce clause. It was first
interpreted by Chief Justice Marshall in Gibbons v. Ogden,(72)
and its scope and legal effect have been under consideration in
about two hundred and fifty cases since then decided by the
Supreme Court of the United States. Many volumes have been
written concerning the rights of citizens under this clause, and
it would be beyond the scope of this work to set forth even an
epitome of the decisions interpreting it rendered by the Supreme
Court.
We shall content ourselves with a statement of a few of the
leading principles settled by the adjudicated cases, and the
remark that the litigation has, for the most part, arisen out of
acts of State legislatures, which have been challenged as
invading the exclusive province of Congress to regulate
interstate commerce, etc.
The first important case arising under this clause was, as
above stated, Gibbons v. Ogden,(73) and the last case of
importance decided by the Supreme Court is the celebrated so-
called "merger decision," involving the right of Congress, in the
exercise of its power to regulate commerce, to pass laws
forbidding the merger of corporations owning parallel and
competing lines and engaged in interstate commerce.(74)
The master mind of Marshall in the first case announced the
following fundamental principles, which remain undisturbed:
1. That the grant of powers to Congress, in the
particulars named, was not only absolute and embraced
the power to regulate navigation, but was exclusive of
any rights of States to legislate on the subject.
2. That it did not affect the right of the States to
legislate on purely internal commerce or to enact
inspection laws and health laws, or purely police
regulations.
3. That the laws last named "form a portion of that
immense mass of legislation which embraces everything
within the territory of a State, not surrendered to the
general government; all which can be most
advantageously exercised by the States themselves.
Inspection laws, quarantine laws, health laws of every
description, as well as laws for regulating the
internal commerce of a State, and those which respect
turnpike roads, ferries, etc., are component parts of
this mass. No direct general power over these objects
is granted to Congress, and consequently they remain
subject to State legislation."
4. But where the States, in the exercise of the powers
last mentioned, enact laws which come in conflict with
Federal laws regulating commerce, the acts of the State
must yield to the laws of Congress. That the nullity of
all such acts is produced by the declaration that the
Constitution is supreme.(75)
Throughout all the multitudinous litigation which has
followed arising under this clause the soundness of these
principles has never been questioned. If the case has arisen upon
a State statute the question has been, does the State statute
directly legislate on the forbidden subject? If so, it is void.
Does it although within the general scope of State power, in its
effect regulate interstate commerce, etc.? If so, it must yield
to the exclusive power of Congress to control.(76)
If it be a mere regulation of inspection, or health, or
exercise of the unquestioned police powers of the State, and its
effect on commerce be utterly incidental and not determinative,
then it is a law within the powers of the State.
If the question has arisen upon a Federal statute, the first
inquiry has invariably been, Is the law, fairly construed, a
regulation of that class of commerce committed absolutely and
exclusively by the Constitution to the regulation of Congress? If
so, it is a valid law, for the power to legislate is as broad as
the grant of exclusive control.
These questions have arisen in infinite variety and
complexity, presenting new aspects in each successive case, and
it is impossible to generalize them in this discussion. The
opposing views in each case are the result of two theories which
have given rise to most of the controversies between Federal and
State authority, viz., on the one hand, the theory of broad
latitudinarian construction of Federal powers, and, on the other,
the theory of strict construction. Pursuing the one or the other
of these theories, men of the highest intellect and character
have, from the foundation of the government, been arrayed in
opposition to each other upon every important question of
construction that has arisen, and perhaps no more striking
illustration of this irreconcilable conflict of views may be
found in our whole judicial literature than in the earnest,
almost angry, discordance of our Supreme Court in the last
important decision on this commerce clause.(77)
But the constitutional inhibition does not prevent the
States from enacting laws which prevent non-residents from
engaging in certain classes of employments within their limits.
Such, for example, is the right of a State to limit the right to
fish and hunt, within her borders to her own citizens. It has
been held that the States did not invest the Federal government
with any portion of their power and control over fishing and
hunting within their borders; that the fish and shellfish and
game in every State belong to, peculiarly and of right, and form
part of the food supply of, the people in each State, and that it
is within the police powers of the State, without any right of
interference by Federal authority, to determine who shall and who
shall not take the fish and game within her borders, and even to
prohibit the shipping of the same beyond the limits of the State.
Thus when a Virginia law punished a citizen of Maryland for
taking oysters from Virginia oyster beds, and he claimed that he
was engaged in commerce, the Supreme Court sustained the State
law, and denied the claim of license to fish in Virginia waters
as a matter of commercial right.(78) So, a law of Connecticut
regulating the manner of taking game in that State and forbidding
its exportation was held valid.(79) The duty of preserving the
game was declared to be a trust for her own people. And State
laws prohibiting exhaustive methods of fishing in waters within
State jurisdiction, or the use of destructive instruments, are
within the powers of the State.(80)
The Right of the Citizen to the Writ of Habeas Corpus (Right
23 above)
Blackstone calls the writ of habeas corpus "the most
celebrated writ in the English law,"(81) and he refers to the
ruinous Habeas Corpus Act of England, 31 Charles II, c. 2, as
"frequently considered as another Magna Carte."
The Supreme Court of the United States has characterized it:
"The great writ of habeas corpus has been for centuries esteemed
the best and only sufficient defense of personal freedom. In
England, after a long struggle, it was firmly guaranteed by the
famous Habeati Corpus Act of May 27, 1679. - - It was brought to
America by the colonists and claimed as among the immemorial
rights descended to them from their ancestors.(82) Of this writ
it may be said truly that it bas elicited more encomiums from
bench and bar than any other in the book, and that discussion of
it seems to arouse whatever of eloquence judges and advocates may
possess.
In form it is a writ emanating from the judicial source
intrusted with its keeping and issuance, directed to the
custodian of any person detained on a criminal or a civil charge,
directing him to produce the body of the person in custody at a
time and place designated in the writ, together with the causes
of his detention, and then and there to submit to and receive
whatever judgment the judge or court awarding the writ shall
consider in that behalf. The name of the writ originated in the
fact that at the time it came into use all writs in England were
written in Latin, and this particular writ directed the custodian
of the prisoner "habeas corpus," "thou shalt have the body" of so
and so, at such and such time and place.
It is not within the purpose of this work to elaborate the
different kinds of writs of habeas corpus aud the different
purposes for which they are invoked. That may be seen by
reference to the authorities quoted. There were writs of habeas
corpus ad respondendum, or to enable the party applying for the
writ to obtain an answer of some sort from the party in custody;
and writs ad satisfaciendum, or to satisfy a judgment or other
demand, which writ does not exist with us; or ad proseguendum, ad
testificandum, ad deliberandum, to prosecute something, to
testify about something, to deliberate about something. It is a
common thing, for example, where a prisoner confined in jail or
penitentiary is a necessary witness at a trial, to have him
produced in court by a writ of habeas corpus ad testificandum
issued by the trial judge or other authority.
But the common writ the one cherished as none other, is the
writ of habeas corpus ad subjiciendum et recipiendum, commanding
the custodian to produce the body of his prisoner and submit to
and receive whatever judgment the judge or court awarding the
writ shall see fit to render. The power of the judge or court
issuing the writ is, upon the production of the accused together
with the causes of his detention, and after hearing the matter
fully, to discharge him, admit him to bail, or remand him to
custody. Nearly all the States have guarantees of the privileges
of the writ of habeas corpus in their constitutions, and all have
statutes providing for the manner of its issuing.
But there is this distinction between writs of habeas corpus
issued by Federal courts and judges and those issued by State
courts and judges. A writ may issue from Federal authority to a
person holding another in custody under State authority, in
certain cases.(83) But a State court or judge cannot issue a writ
of habeas corpus against a person having a prisoner in custody
under the authority of the United States.(84)
The reason for the distinction is obvious from the frame of
the government, for the Federal jurisdiction is, in its sphere,
supreme, and where Federal and State laws conflict the latter
must yield to the former, and the view of their jurisdiction
taken by Federal tribunals must prevail. So that while an inquiry
by a Federal tribunal into a detention under State authority
would be determinative, a like inquiry by a State tribunal into a
detention under Federal authority would not be determinative or
obligatory on the Federal authority.(85)
The cases cited above in the note attached to the statement
of the rights of the citizen to the writ of habeas corpus (note
4, p. 125) will furnish the Student with such further information
as he may desire concerning the origin, nature and history of,
and the manner of applying for, the writ, and the cases to which
it does not extend, as well as those to which it does extend. We
may leave the subject with the final remark that the suspension
of the writ, no matter what may have been the exigency on which
such action has been justified, has always been viewed with the
utmost jealousy by the American people, and the opinion of Chief
Justice Taney in the habeas corpus case of Ex p. Milligan (86) is
one of the finest pieces of judicial eloquence in American
jurisprudence.
Of the Immunity of the Citizen Against Bills of
Attainder and Ex Post Facto Laws
(Immunity 24 above)
This immunity is guaranteed, both as against the Nation and
the State (Art. 1, Sec. 9, Cl. 3, and Art. I, See. 10, Cl.
1.)(87)
A bill of attainder is a legislative act which inflicts
punishments without a judicial trial.(88) Such bills were, in
England, sometimes directed against individuals by name and
sometimes against a class. They were contrary to the whole spirit
of our institutions, and so were forbidden by general consent in
the Constitution, both as against the Nation and the State.
No question of importance arose from any attempt to pass
such measures until the period of our Civil War, when laws
enacted by Missouri and West Virginia, and even the rules adopted
by the Supreme Court of the United States itself, were challenged
as in effect bills of attainder. The discussions in the arguments
and opinions in the case of Cummings v. Missouri,(89) and Ex p.
Garland,(90) are full of historical and legal information on this
subject, and should be carefully read by the student.
"An ex post facto law is one which renders an act punishable
in a manner in which it was not punishable when it was
committed." The State legislature can pass no ex post facto
law.(91) This is the language of Chief Justice Marshall in the
first case in which such legislation came under the eye of the
Supreme Court. And of the reasons leading to the adoption of
those clauses of the Constitution forbidding such legislation
either by the Nation or the State, he said: "Whatever respect
might have been felt for the State sovereignties, it is not to be
disguised that the framers of the Constitution viewed with some
apprehension the violent acts which might grow out of the
feelings of the moment.... The restrictions on the legislative
power of the States are obviously founded in this sentiment."
But an act imposing a succession tax on an estate after its
devolution, during the period of administration, was held not to
be an ex post facto law. (92)
Of the Immunity of the Citizen Against State Laws
Impairing the Obligation of Contracts
(Immunity 29 above)
The same reasons which prompted the Federal guarantee
against the passage of bills of attainder or ex post facto laws
by the States doubtless produced this guarantee also.(93) It has
given rise to an immense amount of litigation. The principle is
so plain that a statement of the law is sufficient, but the
difficulty and doubt in the many cases that have cussion of the
nature and extent of the rights off the arisen have been in
determining whether the State law assailed in a Particular case
did impair the vested right claimed.
As may be seen by reference to the long list of authorities
cited in connection with the statement of this immunity, it would
be impossible to consider, in this volume, the numerous phases
which the discussion of the nature and extent of the rights of
the citizen under this clause has assumed. That would make a
volume in itself.
The case which sets forth with most learning and ability the
nature and extent of this particular Federal guarantee, and the
one most frequently cited, is Charles River Bridge v. Warren
Bridge.(94) It was decided in 1837, and the opinion of the court
was delivered by Chief Justice Taney in one of the strongest of
his many able opinions. But there were three dissents. The
dissenting opinions of Mr. Justice McLean and Mr. Justice Story,
the latter concurred in by Mr. Justice Thompson, are such
striking, powerful presentations of opposing views that in them
is found the germ of many a subsequent effort made to unsettle
the principles fixed by the great decision. This case was
confined, however, to a discussion of how far public grants of
franchises are revocable by State legislation without violating
the clause of the Constitution above referred to. It did not
involve consideration of many other classes of State legislation
upon which the question of the impairment of contracts has
arisen.
One leading distinction, however, running through the
decisions, should be briefly referred to, to wit: The prohibition
does not restrain the States from changing remedies, and a change
in a remedy provided to enforce a right is not necessarily an
impairment of the right itself.(95)
To a full comprehension by the practicing lawyer of the
meaning of this clause and its bearing upon State legislation, a
study of the authorities cited in the footnote is necessary,
indeed indispensable. As there is no middle ground between this
brief consideration, and one so elaborate that it would occupy
unwarranted space in this general treatise, the subject is left
to some other author who shall deal with it as a specialty.
Of the Right of the Citizens of Each State
to All the Privileges and Immunities of
Citizens in the Several States
(Right 41 above)
This provision was in the Articles of Confederation. Indeed,
it was the only direct guarantee from the United States to the
individual citizen contained in that instrument.
In the first case decided by the Supreme Court, involving
the construction of this clause, Chief Justice Marshall said that
a corporation was "Certainly not a citizen" in the sense that the
word is used in the clause referred to.(96) And in the next case
the same illustrious authority held that a citizen of the United
States, residing in any State of the Union, is a citizen of that
State.(97) In later cases it has been repeatedly decided that
corporations are not citizens of the State of their creation
within the meaning of the clause now under consideration; that
they are creatures of the local law of the place of their
creation, without any absolute right to recognition in other
States.(98)
A State statute denying jurisdiction to the State courts
over a suit by a foreign corporation against a foreign
corporation has been held not to violate this clause of the
Constitution.(99) But when a State law made it a condition for
the admission of a foreign corporation to do business in the
State that the corporation so admitted would abstain from
removing any suits brought against it or otherwise resorting to
the federal courts, the condition was held to be void as in
conflict with the Constitution of the United States. This was
decided, however, rather as an abridgement of the rights of the
corporation under Amendment XIV than as against its right as the
citizen of another State.(100)
A State law admitting a foreign corporation to do business
in the State on the condition that creditors who were residents
of the State granting the permit should have priority in the
distribution of its assets over nonresident creditors was
likewise held to violate the constitutional guarantee against
discrimination.(101) It was said, in one of the cases, that the
only limit of the State's right to exclude foreign corporations
is where they are employed by the Federal government or are
strictly engaged in interstate or foreign commerce.(102)
A State law which imposes a tax upon resident merchants at
one rate, and another tax upon non-residents, for the privilege
of transacting the same character of business, at a higher or
discriminating rate, is a violation of the provision we are
discussing.(103)
In some of the cases which have been decided the State law
has been assailed on the double ground that it discriminated
against citizens of other States and was regulative of interstate
commerce. The decisions rendered have in some instances held the
law to be unconstitutional on the latter ground and have ignored
the former, although it was apparently equally tenable.(104)
Under the decision in the famous Dred Scott case a free
negro whose ancestors were brought to this country and sold as
slaves was held not to be a "Citizen" in the sense that the word
was used in the Constitution. Bitterly as this decision was
assailed at the time it was rendered, its logic was unanswerable
as the law then stood. This has been changed by the XIII, XIV,
and XV Amendments, and it has been frequently said in the
decisions upon those amendments that they were passed in order to
reverse this ruling.
There are, however, sundry things concerning which States
may legislate discriminating between residents and nonresidents,
One of the earliest of these decisions was that marital rights of
a special nature, bestowed by a State upon its own citizens
residing within its borders, do not accrue to the nonresident
widow of a deceased nonresident husband who owned property in
that State. It was held that such rights were attached to the
contract of marriage in cases in which the State controlled it
and were not of the class of personal rights of a citizen
intended by this clause of the Constitution.(105)
A State tax on shares of nonresidents in a corporation of
Connecticut, on a basis different from that on which residents
were taxed, was, under the peculiar tax laws of Connecticut, held
not to be a discrimination.(106)
And a State law saving the statute of limitations to a
resident plaintiff against an absent defendant, but allowing it
to run against a nonresident plaintiff, has been held not to
discriminate against the citizen of another State within the
meaning of this clause. It was held to be a change of remedy and
not the deprivation of a right.(107)
An act of a State legislature granting exclusive privileges
for twenty-five years to maintain within a designated area a
slaughter-house, landings for cattle, and yards for enclosing
cattle intended for sale or slaughter, and prohibiting all
others, was held to be within the police power of the State,
unaffected by the Federal Constitution or its amendments, and to
be a regulation for the health and comfort of the people.(108) A
law of the State of Iowa making persons liable for any damages
accruing from their allowing cattle from Texas to run at large
and spread a disease known as Texas fever was held to work no
discrimination, and to be within the police powers of the
States.(109) A similar law against introducing diseased live
stock into Colorado was upheld.(110) In the case of Rasmussen v.
Idaho,(111) the proclamation of the governor of Idaho forbidding
the introduction from other States of sheep with scab was held to
be no discrimination against other States and a legitimate
exercise of the police powers of the State.
State laws forbidding non-residents from fishing or hunting
within the limits of the State, or prescribing terms upon which
they way do so, have been upheld as constitutional, on the ground
that the States never surrendered to the Federal government any
of their rights touching fishing or hinting; that the fish or
game of the State is a part of the food supply of the citizens,
in which the citizens of other States have no interest or
personal rights or privileges; and that a State may control the
subject in the exercise of its police power,(112) and as a thing
held in trust for its own people.
The question of the right of the State to inspect meat and
provision and other food supplies, and her right to regulate the
liquor traffic, is the subject of a number of the decisions
hereinafter considered, but in those cases decided adversely to
the State the decision bas been placed either upon the interstate
commerce clause or upon the rights asserted under the XIV
Amendment, and they will be found under the discussion of the
latter subject.
Of the Federal Guarantee of Extradition of
Fugitives from Justice
(Right 42 above)
Pursuant to this obligation the Congress has enacted
statutes providing for the extradition from one State to another
of fugitives from justice. These Federal statutes control the
demand, and statutes have been passed in all the States providing
measures in accordance with the Federal laws. In the first case
of extradition presented to the Supreme Court, the prisoner was
indicted in Canada and requisition was made by the Canadian
government on the governor of Vermont, who undertook to deliver
him. He applied for a habeas corpus on the ground that such a
delivery could only be made to a foreign government on a
requisition upon the United States, and that the United States
would not, as had been shown by its action in another case, honor
the requisition because there was no treaty. The Vermont court
dismissed the writ, and the Supreme Court, by a divided court,
sustained the action of the State court.(113) In another case it
was held to be the duty of the governor of one State, on the
demand of the governor of another State, and the production of
the indictment, duly certified, to deliver up a fugitive from
justice; that the function of the former is merely ministerial,
and that he has no right to exercise any discretionary power;
that he is under moral obligation to perform the compact of the
Constitution, Congress having regulated the manner of
performance; but that no law of Congress could coerce a State
officer to perform his duty, and a motion for a mandamus against
the governor was denied.(114) And again it was held that the
Federal statute demanding surrender of a fugitive from justice
found in one of the States or Territories, to the State in which
he stands accused, applies to Territories as well as States and
embraces every offense known to the law, including
misdemeanors.(115)
In one case a man charged with crime in Kentucky fled to
West Virginia. A requisition issued for him. While the governor
of West Virginia was considering his extradition the man was
seized in West Virginia, forcibly abducted to Kentucky, and there
held for trial. He instituted proceedings seeking to have himself
returned to West Virginia. The Supreme Court held that there was
no mode provided by the Constitution or laws of the United
States, by which Federal authority could restore him to West
Virginia.(116)
And a fugitive returned to a demanding State has no immunity
from other indictments against him by the State from which he
fled, after he is returned.(117) But the Supreme Court has said
that to extradite a man on one charge and try him on another is
dishonorable.(118) The governor of a State, upon whom demand is
made for the surrender to another State of a citizen who is
charged with being a fugitive from justice, may refuse the
requisition if it be satisfactorily shown to him that the accused
was not in the State at the time the alleged offense was
committed, or since, for in that case the fact that he fled from
justice is negatived.(119)
From the foundation of the government and notwithstanding
the absolute power of Congress to regulate the terms of surrender
of fugitives, the governors of States have been disposed to show
independence on this subject of honoring requisitions. In the
days of slavery it was difficult to secure the surrender of
fugitive slaves, and impossible to secure the surrender of
persons charged in a slave State with having aided slaves to
escape and having then themselves fled. The case of Kentucky v.
Dennison(120) is an illustration in point. In some States the
executive, before honoring the requisition of the governor of the
demanding State, claims the right to examine the indictment upon
which the demand is based, and to determine whether it is in due
form, or to decide whether it charges an offense punishable under
the laws of the demanding State, which is equivalent to deciding
a demurrer to the indictment; and even to hear testimony to
determine the question of probable guilt or innocence. A notable
instance of this is the case of a recent governor, indicted for
complicity in the murder of his political rival, who, having fled
first to one and then to another State, was demanded by the
authorities of the State from which he fled, of the authorities
of both States in which he sought asylum, but has been protected
from delivery. Perhaps, in the instance cited, it was best so,
but the better opinion is that if a crime is charged and demand
is made, in due form, accompanied by an exemplified copy of the
indictment, the duty of the executive upon whom the demand is
made is to surrender the accused to the demanding State, whether
he may think him properly or improperly indicted, innocent or
guilty, leaving the questions of the sufficiency of the
indictment and his guilt or innocence to be determined by the
lawfully constituted authorities of the demanding State upon his
trial there.(121)
The Guarantee to the Citizen that Persons Held to
Service or Labor in One State and Escaping to
Another Shall Not be Discharged Thereby from
Such Service or Labor but Shall be Delivered Up
(Right 43 above)
This once exciting clause has, since the abolition of
slavery, ceased to possess much practical importance. It may be
left, with the authorities cited in connection with it, to the
study of those interested in the controversies to which slavery
gave rise.
Of the Federal Guarantee to the Citizen that His
State Shall Have a Republican Form of Government
(Right 44 above)
In the first case in which the Supreme Court was called upon
to enforce this guarantee it decided that the question which of
two rival governments existing in a State was the lawful
government of the State was not a judicial but a political
question; that is, that it was to be decided by the legislative
and executive departments and not by the judiciary. The case
arose out of conditions bordering upon civil war in the State of
Rhode Island in 1842, resulting from an attempt of certain
citizens of that State to change the organic law of Rhode Island
from government under a charter granted by Charles II, which it
had continued as its form of government after the Revolution, to
government under a new constitution framed by the people. The
trouble originated in the fact that while it was alleged that a
majority of the people desired a new constitution, there was no
provision in the existing law for the calling of any convention.
The charter government continued, notwithstanding certain people
assembled and framed and attempted to put into operation a new
government. One Dorr was chosen governor by the adherents of the
new government, and at once came in conflict with the old regime.
The dispute was popularly known as "Dorr's Rebellion," and the
situation soon led to military conflict, the arrest, trial, and
conviction of Dorr, and his sentence to imprisonment for life
(although he was subsequently pardoned). In the excitement the
Federal judiciary was appealed to, and to the appeal it gave the
above reply.
The Federal executive and other departments had held
intercourse with the old government and so continued to recognize
it, and, although neither of the State governments could, as they
were administered then, be said to be a republican government,
under the decision that it was a political question, to be
disposed of by Congress, the factions in Rhode Island were
allowed to flounder on, and finally untangle their troubles for
themselves without Federal interference. So in that instance this
Federal guarantee of a republican government proved to be not a
very practical thing.(122)
The next occasion upon which the Supreme Court considered
this Federal guarantee was after the great Civil War. The State
of Texas attempted, in 1861, to secede. Her government and her
people waged war on the United States for four years. In 1865 she
was overcome by force of arms, and her territory was occupied by
the military forces of the United States, and her government was
temporarily administered by provisional appointees of the
President of the United States and afterwards by governors
appointed under an act of Congress, by a military commander,
Texas being a part of Military District No. 5, composed of Texas
and Louisiana, pursuant to an Act of Congress of March, 1867. A
State convention, assembled under the authority of the United
States in 1866, passed an ordinance looking to the recovery of
certain bonds alleged to belong to the State, and one J. W.
Throckmorton, a governor whom that convention had elected,
authorized the bringing of the suit. Two subsequent military
governors, Hamilton and Pease, further ratified this action. The
bill was an original bill filed by Texas as a State in the
Supreme Court, and while this condition of her statehood
continued it prayed an injunction concerning certain bonds and
their delivery to the State. The defense, among other things,
questioned:
1. The authority of the parties named to prosecute a suit
in the name of Texas.
2. The right of Texas, after her course in the Civil War,
to sue as a State of the Union.
It fell to the lot of Chief Justice Chase to decide the
status of the States which had attempted to secede, after they
were conquered by the United States and before they were fully
restored to their relations as States of the Union. In a great
opinion the following points were decided:
1. That the term State, as used in the Constitution, most
frequently expresses the combined idea of people,
territory, and government; a political community of
free citizens, occupying a territory of defined
boundaries, and organized under a government sanctioned
and limited by a written constitution, and established
by the consent of the governed.
2. That the Union of these States under a common
Constitution, forming a distinct and greater political
unit, is that which was designated by the Constitution
as the United States, and made, of the people and
States composing it, one people and one country.
3. That the guarantee to every State of a republican form
of government was a guarantee to the people of that
State.
4. That the Union was indissoluble.
5. That the States nevertheless possessed a right of self-
government, sovereignty, freedom, and independence, and
every power, jurisdiction, and right not expressly or
by fair implication delegated to the Union; that
without the States in union there could be no such
political body as the United States.
6. That the preservation and the maintenance of their
governments was as much within the care of the Federal
authority as was the preservation of the national
government itself.
7. That the United States was an indestructible government
of indestructible States.
8. That the guarantee of republican government in the
Union, to the State, was as binding on the United
States as the guarantee of perpetual union, and that
Texas was entitled to the performance of that guarantee
by the final act whereby she became a new member of the
Union.
9. That her attempt at secession and all acts intended to
give it effect were null.
10. That the State continued to exist as a member of the
Union, notwithstanding its temporary government had
been destroyed to preserve the Union.
11. That the United States, having preserved its own
existence, was engaged in performing its equally sacred
obligation to provide a republican form of government
to the State.
12. That this was a political guarantee to be performed by
the Congress.
13. That Congress was empowered to judge of the ways and
means of accomplishing that result, and the provisional
and temporary military governments then existing were
lawful means to that end in a case in which the hostile
State government had been destroyed, and until new and
loyal republican State governments could be organized.
14. That it behooved the judiciary to recognize the
continual existence of the seceding States as members
of the Union, notwithstanding the temporary suspension
of their relations to the Union by the force of the
events above referred to.
No epitome of this great decision can do it justice. It is
among the most luminous expositions extant of the vital questions
of which it treats, and was followed thenceforth in every
department of the government.(123)
In a later case the point was made that the form of
government of a State was not republican in the sense guaranteed
by the Constitution; that is to say, that certain State statutes
in the frame and execution were not. The Supreme Court reiterated
that the question was a political question, and that if the "form
of government" existing in a State was recognized by the
legislative and executive departments, the judiciary ought not to
question it, and must follow the interpretations of the State
laws placed on them by the highest State court.(124)
In a very recent case the Supreme Court, called upon to
decide upon the case of rival contestants for the office of
governor of a State, declined to do so, declaring that it was
pre-eminently a case for decision by the court of last resort in
the State. When the Federal guarantee off a republican form of
government, and the XIV Amendment were invoked, it dismissed the
contention by declaring that the enforcement of that guarantee
was intrusted to the political department of the government, and
that the powers of the judiciary concerning it were not so
enlarged by anything in the XIV Amendment as to give the court
power to review the judgment of a State court of last resort on a
question of State elections.(125)
From the foregoing, which embrace all the utterances of the
Supreme Court concerning its powers under the guarantee clause,
it will be seen that the citizen has little or nothing to hope
for, in the way of its enforcement, from the Federal judiciary.
Indeed, judging by the recent utterances of that court, not only
in this regard, but on the subject of extradition,(126) and in
numerous cases where attempts have been made to secure its aid
against gross frauds the suffrage,(127) it would seem to be
willing to surrender its existence and power as a coordinate
department of the Federal government, and gladly abandon to
Congress and the executive all efforts to enforce the law, except
in matters not political.
We come now to consider those rights, privileges, and
immunities of the citizen guaranteed by the early amendments to
the Constitution.
The Immunity of the Citizen Against Any Law of
Congress Respecting an Establishment of Religion
or Prohibiting the Free Exercise Thereof
(Amendment I)
Either by the bill of rights, the constitution, or the law,
of every State of the Union, a similar guarantee is given to its
citizens, concerning State laws. This does not mean that the
people either of the Nation or of the State hold religion in
contempt or desire to belittle it. On the contrary, the oldest of
the bills of rights contains reverential references to religion
or the duty which we owe to our Maker. The Christian religion was
judicially declared to be a part of the common law of
Pennsylvania.(128) But the English Established Church had become
exceedingly obnoxious to the colonists, and their ideas of
religious liberty had been imbibed from Dutch and Lutheran
examples, and stimulated by what they regarded as oppressions of
the regularly established Church. Hence the prohibition above set
forth.(129)
The first case arising under this clause involved the effect
of the constitutions, national and State, and laws enacted
thereunder, upon property of the Episcopal Church in Virginia.
The case arose touching certain church property in Alexandria,
which city was at that time in the District of Columbia. The
court held that the religious establishment of England was
adopted, so far as applicable, in the colony of Virginia, and
that the freehold of church lands was in the parson; that
legislative grants were irrevocable; that the Act of Virginia of
1776, confirming to the Episcopal Church, as successor of the
Established Church, its rights to lands, was not contrary to the
State constitution and did not infringe any rights, civil,
political, or religious, under the State constitution; that later
acts seeking to divest the Episcopal Church of Virginia of
property acquired previous to the Revolution were null, etc.(130)
By this decision, and others similar in other States, the
Episcopal Church retained much property in the older colonies.
The Supreme Court has held that the prohibition above does
not make good the plea of a person accused of an offense against
morality and decency, that he has acted pursuant to the tenets of
his religious belief, which were those of a Mormon.(131) It was
said, "Religious freedom is guaranteed everywhere throughout the
United States so far as congressional interference is concerned."
Congress was deprived of all legislative power over mere opinion,
but was left free to reach actions which were violative of social
duties or subversive of good order. "Polygamy has always been
odious among the northern and western nations of Europe, and,
until the establishment of the Mormon Church, was almost
exclusively a feature of the life of Asiatic and of African
people.' ' The law punishing polygamy was upheld as intended to
prevent a pernicious practice, no matter what was the belief of
the party engaging in it The opinion delivered by Chief Justice
Waite is both interesting and instructive and equally applicable
to other religious immoralities than polygamy.
In a later case the Supreme Court declared that bigamy and
polygamy are crimes by the laws of the United States, by the laws
of Idaho, and by the laws of all civilized and Christian
countries; and to call their advocacy a tenet of religion is to
offend the common sense of mankind; that a crime is none the less
such, nor less odious, because sanctioned by what any particular
sect may designate as religion; and that the first amendment to
the Constitution was never intended as a protection from
punishment for acts inimical to the peace, good order, and morals
of society.(132)
In a case recently decided, it was held that placing an
isolated hospital building built by the government in charge of
another hospital, which was under the control of Sisters of the
Roman Catholic Church, was not obnoxious to the constitutional
prohibition against laws respecting an establishment of
religion.(133)
Of the Right of the Citizen to Free Speech.
(Amendment I)
This right is also guaranteed to their citizens by all the
States. Of it, it is sufficient to say that it is a right to be
confined within the bounds of decency and morality, and gives mo
immunity from arrest and punishment for treasonable, seditious,
and inflammatory appeals. In time of war numerous arrests have
been made by 'the authority of military commissions, aud citizens
have been actually deported by presidential orders without trial
by jury, and after vainly seeking redress under habeas corpus
proceedings.(134) And in time of peace, under Federal statutes
authorizing the deportation of anarchists, persons have, from
time to time, been indicted, arrested, and punished or deported,
for seditious, anarchistic, and nihilistic utterances and
publications.
The justification for such action is that while the
constitutions, Federal and State, guarantee freedom of speech and
of the press, the persons so speaking or publishing are
answerable to the public authorities for their acts in the
interests of good citizenship, morality, and decency.(135)
Of the Freedom of the Press
(Amendment I)
The freedom of the press has been described as one of the
great bulwarks of liberty. Unquestionably the suppression of fair
discussion of public measures in the press was, under the system
against which the colonists rebelled, one of the most odious
forms of tyranny. On the other hand, those who, in that day, were
so ardent for the absolute liberty of the press could not have
foreseen the immense increase in public and private printed
matter which was to occur; the almost unlimited power for good or
evil which the press was to possess; the irreparable nature of
the injuries which it is often able to inflict; or the
irresponsible hands into which so large a portion of the press of
our day was, in time, to pass.(136)
The State constitutions and statutes which guarantee the
freedom of the press, for the most part, couple with that
guarantee the condition that the persons so printing shall be
answerable in damages for any abuse of the privilege. But the
privilege itself is regarded as of such dignity and sanctity that
the courts of sundry States have held that an injunction will not
lie to restrain the publication of an alleged libel, and the only
redress of a party libeled is to bring an action for damages
after the fact or prosecute the offender criminally.(137)
Rights Guaranteed by Amendments II - VIII,
XI, and XII
Of the other rights guaranteed by the amendments from II to
VIII we shall not speak in detail, because their nature, extent,
and full interpretation will be found sufficiently considered in
the authorities cited in connection with their statement.(138)
Nor do the amendments numbered XI and XII bear directly on our
subject.
Having now come to the war amendments, let us proceed to
consider them in their order.
Footnotes:
(1) Broadhead's History of New York, 1770.
(2) "The practice of setting apart section No. 16 of every
township of public lands, for the maintenance of public
schools is traceable to the ordinances of 1785, being the
first enactment for the disposal by sale of the public lands
in the western territory. The appropriation of public lands
for that object became a fundamental principle by the
ordinance of 1787, which settled terms of compact between
the people and States of the northwestern territory, and the
original States, unalterable except by consent. One of the
articles affirmed that `religion, morality, and knowledge,
being necessary for good government and the happiness of
mankind.' and ordained that 'schools. and the means of
education, should be forever encouraged.' This principle was
extended, first by congressional enactment (1 Stat. at
large, 550, para. 6), and afterward, in 1802, by compact
between the United States and Georgia, to the southwestern
territory. The earliest development of this article in
practical legislation, is to be found in the organization of
the state of Ohio, and the adjustment of its civil polity,
according to the ordinance. preparatory to its admission to
the Union." Cooper v. Roberts, (1855) 18 How. U.S. 177.
(3) So persuasive of all our early acts were the examples of the
Dutch that even our national emblem is singularly like the
flag of the United Netherlands.
(4) Corfield v. Coryell. (1823) 4 Wash. U.S. 371. See also Ward
v. Maryland, (1870) 12 Wall. U.S. 430.
(5) 16 Wall U.S. 76. "The Constitution does not define the
privileges and immunities of citizens. For that definition
we must look elsewhere." Minor v. Happersett, (1874) 21
Wall. U.S. 170.
(6) Revised Code of Virginia, 1819, Vol. 1. page 31.
(7) "The Confederation was a league of friendship of the States
with each other, so declared in the articles and entered
into `for their common defense, the security of their
liberties, and their mutual aud general welfare, binding
themselves to assist each other against all force offered to
or attacks made upon them, or any of them, on account of
religion. sovereignty, trade. or any other pretense
whatever.' But its articles did not form a constitution or
ordinance of government, with power to enforce its
provisions upon each other, or even a compact having any
coherence or binding force other than that of a league of
friendship, which its members only claimed them to
constitute." Wharton v. Wise. (1894) 153 U.S. 167.
(8) "A reasonable interpretation of that instrument [the Federal
Constitution] necessarily leads to the conclusion that the
powers so granted are never exclusive of similar powers
existing in the States, unless where the Constitution has
expressly. in terms, given an exclusive power to Congress,
or the exercise of a like power is prohibited to the States,
or there is a direct repugnancy or incompatibility in the
exercise of it by the States. The example of the first claim
is to be found In the exclusive legislation delegated to
Congress over places purchased by the consent of the
legislature of the State in which the same shall be, for
forts, arsenals, dock-yards, etc.; of the second claim, the
prohibition of a State to coin money or emit bills of
credit; of the third class, as this court have already held,
the power to establish an uniform rule of naturalization,
and the delegation of admiralty and maritime jurisdiction.
In all other cases not falling within the classes already
mentioned, it seems unquestionable that the States retain
concurrent authority with Congress, not only upon the latter
and spirit of the Eleventh Amendment of the Constitution,
but, upon the soundest principles of general reasoning.
There is this reserve, however, that in cases of concurrent
authority, where the laws of the States and of the Union are
in direct and manifest collision on the same subject, those
of the Union, being 'the supreme law of tho land,' are of
paramount authority, and the State laws, so far, and so far
only, as such incompatibility exists, must necessarily
yield." Houston v. Moore, (1820) 5 Wheat. U.S. 49. See also
M'Culloch v. Maryland, (1819) 4 Wheat. U.S. 406; Cohen v.
Virginia, (1821) 6 Wheat U.S. 414; Ableman w. Booth, (1858)
21 How. U.S. 516; Legal Tender Cases, (1870) 12 Wall. U.S.
543; Tarble's Case, (1871) 13 Wall. U.S. 406; Ex p. Siebold.
(1879) 100 U. S. 398; Chinese Exclusion Case, (1889) 130
U.S. 604; Is re Quarles, (1895) 158 U.S. 535.
(9) Civil Rights Cases, (1883 109 U.S. 3.
(10) "A State has the same undeniable and unlimited jurisdiction
over all persons and things within its territorial limits,
as any foreign nation, where that jurisdiction is not
surrendered or retained by the Constitution of the United
States. By virtue of this, it is not only the right, but the
boundless and solemn duty of a State, to advance the safety.
happiness, and prosperity of its people, and to provide for
its general welfare, by any and every act of legislation
which it may deem to be conducive to these ends, where the
power over the particular subject, or the manner of its
exercise is not surrendered or restrained in the manner just
stated. All those powers which relate to merely municipal
legislation, or what may, perhaps, more properly be called
`internal police,' are not thus surrendered or restrained;
and consequently, in relation to these, the authority of the
State is complete, unqualified, and exclusive." New York v.
Mila, (1837) 11Pet. U.S. 139.
"Both the States and the United States existed before the
Constitution. The people, through that instrument,
established a more perfect union by substituting a national
government, acting, with ample power, directly upon the
citizens, instead of the confederate government, which
acted, with powers greatly restricted, only upon the States.
But in many articles of the Constitution the necessary
existence of the States, and, within their proper spheres,
the independent authority of the States, is distinctly
recognized. To them nearly the whole charge of interior
regulation is committed or left; to them and to the people
all powers not expressly delegated to the national
government are reserved. The general condition was well
stated by Mr. Madison in The Federalist, thus: `The Federal
and State governments are in fact but different agents and
trustees of the people, constituted with different powers
and designated for different purposes'" Lane County v.
Oregon, (1868) 7Wall. U.S. 76.
(11) Under the very peculiar constitution of this government,
although the citizens owe supreme allegiance to the Federal
government, they owe also a qualified allegiance to the
State in which they are domiciled. Their persons and
property are subject to its laws. The Brig Army Warwick,
(1862) 2 Black U.S. 673.
(12) Ex p. Yarbrough. (1884) 110 U.S. 651; in re Green, (1890)
134 U.S. 377; McPherson v. Blacker, (1892) 146 U.S. 1; Wiley
v. Sinkler, (1900) 179 U.S. 58; Swaford v. Templeton,.
(1902) 185 U.S. 487.
"The right to vote for members of the Congress of the
United States is not derived merely from the constitution
and laws of the State in which they are chosen, but has its
foundation in the Constitution of the United States." Wiley
v. Sinkler (1900) 179 U.S. 58, approving Ex p.Yarbrough,
(1884) 110 U.S. 651.
(13) Dred Scott v. Sandford, (1856) 19 How. U.S. 393; Veazie Bank
v. Fenno, (1869) 8 Wall. U.S. 533; Scholey v. Rew, (1874) 23
Wall. U.S. 331; De Treville v. Smalls, (1878) 98 U.S. 517;
Gibbons v. District of Columbia, (1886) 116 U.S. 404;
Pollock v. Farmers' L & T. Co., (1895) 157 U.S. 429; Pollock
v. Farmers' L. & T. Co., 158 U.S. 601; Thomas v. U.S, (1904)
192 U. S. 363. See infra note 9, P. 114.
"The men who framed and adopted that instrument [the
Constitution] had just emerged from the struggle for
independence, whose rallying cry had been that `taxation and
representation go together'.... The States were about, for
all national purposes embraced in the Constitution, to
become one, united under the same laws. But as they still
retained their jurisdiction over all persons and things
within their territorial limits, except where surrendered to
the general government or restrained by the Constitution,
they were careful to see to it that taxation and
representation should go together, so that the sovereignty
reserved should not be impaired, and that when Congress, and
especially the House of Representatives, where it was
specifically provided that all revenue bills must originate,
voted a tax upon property, it should be with the
consciousness, and under the responsibility, that in so
doing the tax so voted would proportionately upon the
immediate constituents of those who imposed it." Pollock v.
Farmers' L.& T.Co., (1895) 157 U.S. 429.
(14) "The direct and declared object of this census is, to
furnish a standard by which `representatives, and direct
taxes, may be apportioned among the several States which may
be included within this Union.'" Loughborough v. Blake,
(1820) 5 Wheat. U.S. 317.
(15) "The House of Representatives has the sole right to impeach
officers of the government. and the Senate to try him."
Kilbourn v. Thompson, (1880) 103 U.S.190.
(16) Anderson v.Dunn, (1821) 6 Wheat. U.S. 204; Coxe v.
MClenachan, (1798) 3 Dall. U.S. 478; Kilbourn v. Thompson,
(1880) 103 U.S. 168.
(17) Field v.Clark, (1802) 143 U.S. 649; Twin City Bank v.
Nebeker (1897) 167 U.S. 196.
"The construction of this limitation is practically well
settled by the uniform action of Congress. According to that
construction, it has been confined to bills to levy taxes in
the strict sense of the words, and has not been understood
to extend to bills for other purposes which incidentally
create revenue.'" U.S. v. Norton, (1875) 1 U.S. 569; Twin
City Bank v. Nebeker, (1897) 167 U.S. 202.
(18) Field v. Clark (1892) 143 U.S. 649; U.S. v. Ballin (1892)
144 U.S. 1; Twin City Bank v. Nebeker (1897) 167 U. S. 196;
La Abra Silver Min. Co. v. U. S., (1899) 176 U. S. 423;
Wilkes County v. Coler, (1901) 180 U.S. 506; Fourteen
Diamond Rings v. U.S. (1901) 183 U. S. 176.
"The purpose of the Constitution is to secure to the people
of this country the best legislation by the simplest means.
Its framers being mindful of the errors and oversights which
are bred in the heat and strife and divided responsibility
of legislative assemblies, and which they had repeatedly
beheld in State legislatures, determined to secure to the
people the benefits of revision. and to unite with the power
of revision the check of undivided responsibility, and to
place the power in the hands of the person in whom the
nation reposed, for the time being. the most confidence"
U.S. v. Well, (1894) 29 Ct. Cl. 540.
(19) Hylton v. U.S. (1796) 3 Dall. U.S. 171; M'Culloch v.
Maryland, (1819) 4 Wbeat. U.S. 316; Loughborough v. Blake,
(1820) 5 Wheat. U.S. 317; Obborn v. U. S. Bank (1824) 9
Wheat. U.S. 738; Weston w. Charleston, (1829) 2 Pet. U.S.
449; Dobbins v. Erie County, (1842) 16 Pet. U.S. 435;
Thurlow v. Massachusetts, (1947) 5 How. U.S. 504; Cooley v.
Board of Wardens, (1851) 12 How. U.S. 299; McGuire v.
Massachusetts, (1865) 3 Wall. U.S. 387; Van Allen v.
Assessors, (1865) 3 Wall. U.S. 573; Bradley v. People,
(1866) 4 Wall. U.S. 459; License Tax Cases (1866) 5 Wall.
U.S. 462; Pervear w. Massachusetts. (1866) 5 Wall. U.S. 475;
Woodruff v. Patham, (1868) 8 Wall. U.S. 123; Hinson v. Lott,
(1868) 8 Wall. U.S. 148; Veazie Bank v. Fenno, (1869) 8
Wall. U.S. 633; Collector v. Day, (1870) 11 Wall. U.S. 113;
U.S. v. Singer, (1872) 15 Wall. U.S. 111; State Tax on
Foreign-held Bonds, (1872) 15 Wall. U.S. 300; U.S. v.
Baltimre, etc., R. Co., (1872) 17 Wall U.S. 322; Union Pac.
R. Co. v. Peniston, (1873) 18 Wall. U.S. 5; Scholey v. Row,
(1874) 23 Wall. U.S. 331; Merchants Nat. Bank v. U.S. (1879)
101 U. S. 1; Springer v. U.S. (1881) 102 U.S. 592; Legal
Tender Cases, (1884) 110 U.S. 421; Head Money Cases (1884)
112 U.S. 680; Van Brocklin v. Tennessee 117 U.S. 151; Field
w. Clark, (1892) 143 U. S. 649. New York, etc., R. Co. v.
Pennsylvania, (1894) 153 U.S. 628; Pollack v. Farmers' L. &
T. Co., (1895) 157 U.S. 429; U.S. v. Realty Co., (1896) 163
U.S. 427; In re Kollock, (1807) 165 U.S. 526; Nicol v. Ames,
(1899) 173 U.S. 509; Knowlton v. Moore, (1900) 178 U.S. 41;
Delima v. Bidwell, (1901) 182 U.S. 1; Dooley v. U.S. (1901)
182 U.S. 222; Fourteen Diamond Rings v. U.S. (1901) 183 U.S.
176; Felsenbeld v. U.S., (1902) 186 U.S. 126; Thomas v. U.S.
(1904) 192 U.S. 363. See supra, note 3, p. 112.
(20) Gibbons v. Ogden, (1824) 9 Wheat. U.S. 1; Brown v. Maryland
(1827) 12 Wheat U.S. 419; Willson w. Black Bird Creek Marsh
Co., (1829) 2 Pet. U.S. 245; Worcester v. Georgia, (1832) 6
Pet. U.S. 515; New York v. Miln, (1837) 11 Pet. U.S. 102; U.
S. v. Coombs, (1838) 12 Pet. U.S. 72; Holmes v. Jennison,
(1840) 14 Pet. U.S. 640; Thurlow v. Massachusetta, (1847) 5
How. U.S. 604; Smith v. Turner, (1849) 7 How. U.S. 283;
Nathan v. Louisiana (1850) 8 How. U.S. 73; Mager v. Grima
(1850) 8 How. U.S. 490; U. S. v. Marigold. (1850) 9 How.
U.S. 560; Cooley v. Board of Wardens, (1851) 12 How. U.S.
299; The Propeller Genesee Chief v. Fitzhugh, (1851) 12 How.
U.S. 443; Pennsylvania v. Wheeling, etc., Bridge Co., (1851)
13 How. U.S. 518; Veazie v. Moore, (1862) 14 How. U.S. 568;
Smith v. Maryland, (1855) 18 How. U.S. 71; Pennsylvania v.
Wheeling. etc., Bridge Co., (1853) 18 How. U.S. 421; Sinnot
v. Davenport (1859) 22 How. U.S. 227; Foster v. Davenport.
(1859) 22 How. U.S. 244; Conway v. Taylor(1861) 1 Black U.S.
603; U.S. v. Holliday, (1865) 3 Wall. U.S. 407; Gilman v.
Philadelphia (1865) 3 Wall. U.S. 713; The Passaic Bridges, 3
Wall. U.S. 782; Southern Steamship Co. v. Port Wardens
(1867) 6 Wall. U.S. 31; Crandall v. Nevada, (1867) 6 Wall.
U.S. 35; White's Bank v. Smith (1868) 7 Wall. U.S. 646;
Waring v. Mobile (1868) 8 Wall. U.S. 110; Paul v. Virginia
(1868) 8 Wall. U.S. 168; Thomson v. Pacific R. Co. (1869) 9
Wall.U.S. 579; Downham v. Alexandria (1869) 10 Wall. U.S.
173; Clinton Bridge (1870) 10 Wall. U.S. 454; The Daniel
Ball (1870) 10 Wall U.S.557; Liverpool Ins. Co. v.
Massachusetts (1870) 10 Wall U.S. 566; The Montello (1870)
11 Wall. U.S. 411; Ex p. McNiel (1871) 13 Wall U.S. 236;
State Freight Tax Case (1872) 15 Wall. U.S. 232; State Tax
on Railway Gross Receipts (1872) 15Wall. U.S. 284; Osborne
v. Mobile (1872) 16 Wall. U.S. 479; Chicago, etc., R. Co. v.
Fuller (1873) 17Wall. U.S.560; Bartemeyer v. Iowa (1873) 18
Wall. U.S. 129; Delaware Railroad Tax (1873) 18 Wall. U.S.
206; Peete v. Morgan (1873) 19 Wall. U.S. 581; Dubuque,
etc., R. Co. v. Richmond (1873) 19 Wall. U.S. 584;
Baltimore, etc., R. Co. v. Maryland (1874) Wall. U.S. 456;
The Lottawanna, (1874) 21 Wall. U.S. 558; Waltan v.
Missouri, (1875) 91 U.S. 275; Henderson v. New York. (1876)
92 U. & 259; Chy Long v. Freedman. (1875) 92 U.S. 275; South
Carolina v. Georgia, (1876) 93 U.S. 4; Sherlock v. Alling,
(1876) 93 U.S. 99; U.S. v. 43 Gallons of Whisky, (1876) 93
U.S. 188; Foster v. New Orleans (1876) 94 U.S. 246; MaCready
v. Virginia, (1876) 94 U.S. 391; @niW, Hannibal Etc., R. Co.
v. Husen, (1877) 95 U.S. 465; Pound v. Turck, (1877) 95 U.S.
459; Hall v. De Cuir, (1877) 95 U.S. 485; Pensacola Tel. Co.
v. Western Union Tel. Co., (1877) 96 U.S. 1; Boston Beer co.
v. Massachusetts (1877) 97 U.S. 25; Cook v. Pennsylvania
(1878) 97 U.S. 566; Wheeling, etc., Transp. Co. v. Wheeling
(1878) 99 U.S. 273; Northwestern Union Packet Co. v.
St.Louis (1879) 100 U.S. 423; Guy v. Baltimore (1879) 100
U.S. 434; Kirtland v. Hotchkiss (1879) 100 U. S. 491; Howe
Mach. Co. v. Gage, (1879) 100 U. S. 676; Trade-mark Cases
(1879) 100 U.S. 82; Wilson v. McNamee, (1881) 102 U.S. 572;
Tiernan v. Rinker, (1880) 102 U. S. 123; Lord v. Goodall,
etc., Steamship Co., (1881) 102 U. S. 641; Mobile County v.
Kimball, (1881) 102 U.S. 691; Western Union Tel. Co. v.
Texas, (1881) 105 U.S. 460; Newport, etc., Bridge Co. v.
U.S., (1881) 105 U. S. 470; Wiggins Ferry Co. v. East St.
Louis, (1882) 107 U.S. 365; Turuer v. Maryland, (1882) 107
U.S. 38; Escanaba etc., Transp. Co. v. Chicago, (1892) 107
U. S. 678; Miller v. New York, (1883) 169 U.S. 383; Moran v.
New Orleans. (1884) 112 U.S. 69; Foster v. Kansas, (1884)
112 U.S. 201; Head Money Cases. (l884) 112 U.S. 680;
Cardwell v. American Bridge Co., (1885) 113 U. S. 205;
Cooper Mfg. Co. v. Ferguson, (1885) 113 U.S. 727; Gloucester
Ferry Co. v. Pennsylvania. (1885) 114 U.S. 196; Brown v.
Houston. (1895) 114 U.S. 622; Railroad Commission Cases
(1886) 116 U.S. 307, 347, 352; Walling v. Michigan, (1886)
116 U.S. 446; Coe v. Errol, (1886) 116 U.S. 517; Pickard v.
Pullman Southern Car. Co., (1886) 117 U.S. 34; Tennessee
v.Pullman Southern Car Co. (1886) 117 U.S. 51; Morgan's
Steamship Co. v. Louisiana Board of Health (1886) 118 U.S.
455; Wabash, etc., R. Co. v. Illinois (1886) 118 U.S. 557;
U.S. v. Kagama (1886) 118 U.S. 375; Philadelphia Fire Assoc
v. New York (1886) 119 U.S. 110; Johson v. Chicago, etc.,
Elevator Co. (1886) 119 U.S. 388; Robbins v. Shelby County
Taxing Dist. (1887) 120 U.S. 489; Corson v. Maryland, (1887)
120 U. S. 502; Fargo v. Michigan, (1887) 121 U.S. 230;
Philadelphia.. etc., Steamship Co., v. Pennsylvania. (1887)
122 U.S. 322; Western Union Tel. Co. v. Pendleton (1887) 122
U.S. 347; Sands v. Manitee River Imp. Co.. (1887) 123 U.S.
288; Smith v. Alabama (1888) 124 U.S. 465; Willamette Iron
Bridge Co. v. Hatch (1888) 125 U.S. 1; Pembina Consol.
Silver Min., etc., Co. v. Pennsylvania (1888) 126 U.S. 181;
Bowman v. Chicago, etc., R. co. (1888) 125 U.S. 406; Western
Union Tel. Co. v. Atty.-Gen. (1888) 125. U.S. 630;
California v. Central Pac. R. Co., (1889) 127 U. S. 1;
Ratterman v. Western Union Tel. Co. (1888) 127 U.S. 411;
Leloup v. Mobile, (1888) 127 U.S. 640; Kidd v. Pearsaon,
(1888) 128 U. S. 1; Asher v. Texas (1888) 128 U.S. 129;
Nashville, etc., R. co. v. Alabama, (1888) 128 U.S. 96,
Stoutenburgh v. Hennick, (1889) 129 U.S. 141; Kimmish v.
Ball, (1889) 129 U.S. 217; Western Union Tel. Co. v. Alabama
State Board of Assessment, (1889) 132 U.S. 472; Fritts v.
Palmer, (1889) 132 U.S. 282; Louisville, etc. R. Co. v.
Mississippi, (1890) 133 U.S. 587; Leisy v. Hardin (1890) 135
U.S. 100; Cherokee Nation v. Southern Kansas R. Co. (1890)
135 U.S. 641; McCall v. California, (1890) 136 U.S. 104;
Norfolk, etc., R. Co. v. Pennsylvania, (1890) 136 U.S. 114;
Minnesota v. Barber, (1890) 136 U.S. 318, Texas, etc., R.
Co. v. Southern Pac. Co., (1890) 137 U.S. 48; Brimmer v.
Rebman, (1891) 138 U.S. 78; Manchester v. Massachusetts
(1891) 139 U. S. 240; In re Rahrer, (1891) 140 U.S. 646;
Pullman's Palace Car Co. v. Pennsylvania, (1891) 141 U.S.
18; Massachusetts v. Western Union Tel. Co.. (1891) 141 U.S.
40; Crutcher v. Kentucky, (1891) 141 U.S. 47; Voight v.
Wright (1891) 141 U.S. 62; Henderson Bridge Co. v. Henderson
(1891) 141 U.S. 679; In re Garnett (1891) 141 U.S. 1; Maine
v. Grand Trunk R. Co., (1881) 142 U.S. 217; Nishimura Ekiu
v. U.S. (1892) 142 U.S. 651; Pacific Express Co. v. Seibert,
(1802) 142 U.S. 339; Horn Silver Min. Co. v. New York,
(1892) 143 U.S. 305; Field v. Clark. (1892) 143 U.S. 849;
O'Neil v. Vermont. (l892) 144 U.S. 323; Ficklen v. Shelby
County Taxing Dist. (1892) 145 U.S. 1; Lehigh Valley R. Co.
v. Pennsylvania. (1892) 145 U.S. 102; Harman v. Chicago,
(1893) 147 U.S. 396; Monongahela Navs Co. v. U.S. (1893) 148
U.S. 312; Brennan v. Titusville, (1894) 153 U.S. 289; Brass
v. North Dakota. (1894) 163 U.S. 391; Ashley v. Ryan. (1894)
153 U.S. 436; Luxton v. North River Bridge Co. (1894) 153
U.S. 525; Postal Tel.-Cable Co. v. Charleston (1894) 153
U.S. 692; Covington, etc.. Bridge Co. v. Kentucky (1894) 154
U.S. 204; Interstate Commerce Commission v. Brimson (1894)
154 U.S. 447; Plumley v. Massachusetts(1894) 155 U.S. 461;
Texas, etc. R. Co. v. Interstate Transp. Co., (1895) 155U.S.
585; Hooper v. California (1895) 155 U.S. 648; Postal Tel.-
Cable Co. v. Adams (1895) 155 U.S. 688; U.S. v. E.C. Knight
Co., (1895) 156 U.S. 1; Emert v. Missouri (1895) 156 U.S.
296; Pittsburg, etc., Coal Co. v. Louisiana (1895) 156 U.S.
590; Gulf, etc., R. Co. v. Hefley (1895) 158 U.S. 98; New
York, etc., R. Co. v. Pennsylvania (1895) 158 U.S. 431; In
re Debs (1895) 158 U.S. 564; Greer v. Connecticut (1896) 161
U.S. 519; Western Union Tel. Co. v. James, (1896) 162 U.S.
650; Western Union Tel. Co. v. Taggart, (1896) 163 U. S. 1;
Illinois Cent. R. Co. v. Illinois, (1896) 163 U. S. 142;
Hennington v. Georgia (1896) 163 U.S. 299; Osborne v.
Florida, (1897) 164 U.S. 650; Scott v. Donald, (1897) 165
U.S. 58; Adams Express Co. v. Ohio State Auditor (1897) 165
U.S. 194; Lake Shore, etc., R. Co. v. Ohio (1897) 165
U.S.365; New York, etc., R.Co.v.New York (1897) 165 U.S.
628; Gladson v. Minnesota (1897) 166 U.S. 427; Henderson
Bridge Co.v. Kentucky (1897) 166 U.S. 150; St. Anthony Falls
Water Power Co. v. St. Paul Water Com'rs (1897) 168 U.S.
349; Chicago, etc., R. Co. v. Solan (1898) 169 U.S. 133;
Missourti, Etc., R. Co. v. Haber (1898) 169 U.S. 613;
Richmond, etc., R. Co. v. R. A. Patterson Tobacco Co.,
(1898) 169 U.S. 311; Rhodes v. Iowa (1898) 170 U.S. 412;
Vance v. W.A. Vandercook Co., (1898) 170U.S. 438;
Schollenberger v. Pennsylvania (1898) 171 U.S. 1; Collins v.
New hampshire (1898) 171 U.S. 30; Patapaco Guano Co. v.
North Carolina Board of Agriculture (1898) 171 U.S. 345; New
York v. Roberts (1898) 171 U.S. 658; Hopkins v. U.S. (1898)
171 U.S. 578; Anderson v. U.S. (1898) 171 U.S. 604; Green
Bay, etc., Canal Co. v. Patten Paper Col, (1898) 172 U.S.
58; lake Shore, etc., R. Co. v. Ohio (1899) 173U.S. 285;
Henderson Bridge Co. v. Henderson (1899) 173U.S. 592;
Missouri, etc., R. Co. v. McCann (1899) 174 U.S. 580;
Addyston Pipe, etc., Co. v. U.S. (1899) 175 U.S.
211;Louisiana v. Texas (1900) 176 U.S. 1; U.S. v. Bellingham
Bay Boom Co. (1900) 176 U.S. 211; Lindsay, etc., Co. v.
Mullen (1900) 176 U.S. 126; Water-Pierce Oil Co. v. Texas
(1900) 177 U.S. 28 New York L. Ins.Co. v. Cravens (1900) 178
U.S. 389; Scranton v. Wheeler (1900) 179 U.S. 141; Williams
v. Fears (1900) 179 U.S. 270; Wisconsin etc., R. Co. v.
Jacobson (1900) 179 U.S. 287; Chesapeake, etc., R. Co. v.
Kentucky (1900) 179 U.S. 388; Reymann Brewing Co. v. Brister
(1900) 179 U.S. 445; W. W. Cargill Co. v. Minnesota (1900)
180 U.S. 452; Rasmussen v. Idaho (1901) 181 U.S. 198; Smith
v. St. Louis, etc., R. Co. (1901) 181 U.S. 248; Capital City
Dairy Co. v. Ohio (1902) 183 U.S. 238; Louisville, etc., R.
Co. V Kentucky (1902) 183 U.S.503; Nutting v. Massachusetts
(1902) 183 U.S. 553; McChord v. Louisville, etc., R.
Co.(1902) 183 U.S. 483; Louisville, Etc., R. Co. v. Eubank
(1902) 184 U.S. 27; Stockard v. Morgan (1902) 185 U.S. 27;
Minneapolis, etc., R. Co. v. Minnesota (1902) 186 U.S. 257;
Reid v. Colorado (1902) 187 U.S. 137; Western Union Tel. Co.
v. New Hope (1903) 187 U.S. 419; Diamond Glue Co. v. U.S.
Glue Co. (1903) 187 U.S. 611; Lousiville, etc., Ferry Co. v.
Kentucky (1902) 188 U.S. 385; U.S. v. Lynah (1903) 188U.S.
445; Cummings v. Chicago (1903) 188 U.S. 410; The Roanoke
(1903) 189 U.S. 185; Montgomery v. Portland (1903) 190 U.S.
89; Petterson v. Bark Eudora (1903) 190 U.S. 169; Allen v.
Pullman's Palace Car Co., (1903) 191 U.S. 171; New York v.
Knight (1904) 192 U.S. 21; Postal Tel.-Cable Co. v. Taylor
(1904) 192 U.S. 64; Crossman v. Lurman (1904) 192 U.S. 189;
St. ClairCounty v. Interstate Sand Co., etc., (1904) 192
U.S. 189; Buttfield v. Stranahan (1904) 192U.S. 470;
American Steel, etc., Co. v. Speed (1904) 192 U.S. 500;
Northern Securities Co. v. U.S. (1904) 193 U.S. 197.
(21) Sturges v. Crowninshield (1819) 4 Wheat. U.S. 122; M'Millan
v. M'Neill (1819) 4Wheat. U.S. 131; Ogden v. Saunders (1827)
12 Wheat. U.S. 213; Boylev. Zacharie (1832) 6 Pet. U.S. 348;
Gassies v. Ballon (1832) 6 Pet. U.S. 761; Beers v. haughton
(1835) 9Pet. U.S. 329; Suydam v. Broadmax (1840) 14 Pet.
U.S. 67; Cook v. Moffat (1847) 5 How. U.S. 295; Dred Scott
v. Sandford (1856) 19 How. U.S. 393; Nishimura Ekiu v. U.S.
(1892) 142 U.S. 651; Hanover Nat. Bank v. Moyses(1902) 186
U.S. 181.
The power of Congress to pass bankrupt laws is not
exclusive, but that power may be exercised by the States
except when it is actually exercised by Congress and the
State laws conflict with the Federal law. It is not the mere
existence of the power to enact such laws, but its exercise
by Congress, which is incompatible with the exercise of the
same power by the State. Otherwise with the power to pass
uniform Federal laws of naturalization. "The citizens of any
one state being entitled by the Constitution to enjoy the
rights of citizenship in every other state, that fact
creates an interest in this particular in each other's acts,
which does not exist with regard to their bankrupt laws;
since State acts of naturalization would thus be extra-
territorial in their operation, and have an influence on the
most vital interest of other States. On these grounds, State
laws of naturalization may be brought under one of the four
heads or classes of powers precluded to the States, to wit,
that of incompatibility." Ogden v. Saunders (1827) 12 Wheat
U.S. 277. See also Pierce v. New Hampshire (1847) 5 How.
U.S. 585; Dred Scott v. Sandford (18560 19 How. U.S. 405;
Gilman v. Lockwood (1866) 4 Wall. U.S. 410; Brown v. Smart
(1892) 145 U.S. 457.
(22) Briscoe v. Kentucky Com. Bank (1837)11 Pet. U.S. 267; Fox v.
Ohio (1847)5 How. U.S. 410; U.S. v. Marigold (1850) 9 How.
U.S. 560; Legal Tender Cases (1870) 12 Wall. U.S. 545; The
Miantinomi (1855) 3 Wall. Jr. (C.C.) 46,17 Fed. Cases No.
9,521.
"The Constitution was intended to frame a government as
distinguished from a league or compact, a government supreme
in some particulars over States and people. It was designed
to provide the same currency, having a uniform legal value
in all the States. It was for this reason the power to coin
money and regulate its value was conferred upon the Federal
Government, while the same power as well as the power to
emit bills of credit was withdrawn from the States. The
States can no longer declare what shall be money, or
regulate its value. Whatever power there is over the
currency is vested in Congress." Legal Tender Cases (1870)
12 Wall. U.S. 545.
(23) Pennsylvania v. Wheeling, etc., Bridge Co., (1855) 18 How.
U.S. 421; Pensacola Tel. Co. v. Western Union Tel. Co.,
(1877) 94 U.S. 1; Ex p. Jackson (1877) 96 U.S. 727; In re
Rapier, (1892) 143 U.S. 110; Horner v. U.S. (1892) 143 U. S.
207; In re Debs (1895) 158 U. S. 564; Illinois Cent. R. R.
Co. v. Illinois (1896) 163 U. S. 142; Gladson v. Minnesota,
(1897) 166 U. S. 427.
"Post-offices and post-roads are established to facilitate
the transmission of intelligence. Both commerce and the
postal service are place with in the power of Congress,
because, being national in their operation, they should be
under the protecting care of the national government.... As
they were entrusted to the general government for the good
of the nation, it is not only the right, but the duty, of
Congress to see to it that intercourse among the States and
the transmission of intelligence are not obstructed or
unnecessarily encumbered by State regulation." Pensacoal
Tel. Co. v. Western Union Tel. Co. (1877) 96 U.S. 1.
"The States before the Union was formed could establish post
offices and post-roads, and in doing so could bring into
play the police power in the protection of their citizens
from the use of the means so provided for purposes supposed
to exert a demoralizing influence on the people. When the
power to establish post offices and post-roads was
surrendered to the Congress it was as a complete power, and
the grant carried with it the right to exercise all the
powers which made that power effective." In re Rapier (1892)
143 U.S. 134.
(24) Grant v. Raymond, (1832) 6 Pet. U.S. 218; Wheaton v. Peters
(1834) 8 Pet. U.S. 501; Trade-Mark Cases (1879) 100 U.S. 82;
Burrow-Giles Lith.Co. v. Sarony (1884) 111 U.S. 53; U.S. v.
Duell (1899) 172 U.S. 576;
"No State can limit, control, or even exercise the power.
Woolen v. Banker (1877) 2 Flipp. U.S. 33,30 Fed. Cases No.
18,030.
(25) Chisholm v. Georgia (1793) 2 Dall. U.S. 419; Stuart v. Laird
(1803) 1Cranch. U.S. 299; U.S. v. Peters (1809) 5 Cranch
U.S. 115; Cohen v. Virginia (1821) 6 Wheat. U.S. 264; Martin
v. Hunter (1816) 1 Wheat. U.S. 304; Osborn v. U.S. Bank
(1824) 9 Wheat. U.S. 738; Benner v. Porter (1850) 9 How.
U.S. 235; U.S. v. Ritchie (1854) 17 How. U.S. 525; Murray v.
HobokenLand, etc., Co. (1855) 18 How. U.S. 272; Ex p.
Vallandigham (1863) 1 Wall. U.S. 243; Pennoyer v. Neff
(1877) 95 U.S. 714; U.S. v. Union Pac. R. Co. (1878) 98 U.S.
560; Mitchell v. Clark (1884) 110 U.S. 633; Ames v. Kansas
(1884) 111 U.S. 449; In re Loney (1890) 134 U.S. 373; In re
Green (1890) 134 U.S. 377; McAllister v. U.S. (1891) 141
U.S. 174; Robertson v. Baldwin (1897) 165 U.S. 275; Hanover
Nat.Bank v. Moyses (1902) 186 U.S. 181.
It is manifest that the Constitution requires a supreme
court to be established. But Congress is also bound "to
create some inferior courts, in which to vest all that
jurisdiction which, under the Constitution, is exclusively
vested in the United States, and of which the Supreme Court
cannot take original cognizance. They might establish one
ore more inferior courts; they might parcel out the
jurisdiction among such courts, from time to time, at their
own pleasure. But the whole judicial power of the United
States should be, at all time, vested either in an original
or appellate form, in some courts created under its
authority." Per Story, J., in Martin v. Hunter (1816) 1
Wheat. U.S. 331.
(26) U.S. v. Palmer (1818) 3 Wheat U.S. 610; U.S. v.
Wiltberger(1820) 5 Wheat U.S. 76; U.S. v. Smith (1820)
5Wheat U.S. 153; U.S. v. Furlong (1820) 5 Wheat. U.S. 184;
U.S. v. Arjona (1887) 120 U.S. 479.
The power of the United States to punish an act constituting
an offense against the law of nations does not prevent a
State from providing for the punishment of the same thing,
where the act is an offense against the authority of the
State as well as that of the United States. U.S. v. Arjona
(1887) 120 U.S. 479.
(27) Brown v. U.S. (1814) 8 Cranch U.S. 110; American Ins. Co. v.
356 Bales Cotton (1828) 1 Pet. U.S. 511; Mrs. Alexander's
Cotton (1864) 2 Wall U.S. 404; Miller v. U.S. (1870) 11
Wall. U.S. 268; Tyler v. Defrees (1870) 11 Wall. U.S. 331;
Stewart v. Kahn (1870) 11 Wall U.S. 493; hamiltonv. Dillin
(1874) 21 Wall U.S. 73; Lamar v. Browne (1875) 92 U.S. 187;
Mayfield v. Richards (1885) 115 U.S. 137; Chinese Exclusion
Case (1889) 130 U.S. 581; Church ofJesus Christ v. U.S.
(1890) 136 U.S. 1; Nishimura Ekiu v. U.S. 142 U.S. 651.
"The Federal power has a right to declare and prosecute
wars, and, as a necessary incident, to raise and transport
troops through and over the territory of any State of the
Union. If this right is dependent in any sense, however
limited, upon the pleasure of the State, the government
itself may be overthrown by an obstruction to its exercise."
Crandall v. Nevada (1807) 6 Wall. U.S. 44.
(28) Crandall v. Nevada (1867) 6 Wall. U.S. 35; Nishimura Ekiu v.
U.S. (1892) 142 U.S. 651.
"The legislation of the United States will be obliged, by
this provision, once at least in every two years, to
deliberate upon the propriety of keeping a military force on
foot; to come to a new resolution on this point; and to
declare their sense of the matter by a formal vote in the
face of their constituents. They are not at liberty to vest
in the executive department permanent funds for the support
of an army, if they were even uncautious enough to be
willing to repose in it so improper a confidence."
Hamilton, in The Federalist, No. XXVI.
"Among the powers assigned to the national government, is
the power to raise and support armies' and the power `to
provide for the government and regulation of the land and
naval forces.' The execution of these powers falls within
the line of its duties; and its control over the subject is
plenary and exclusive.... No interference with the
execution of this power of the national government in the
formation, organization, and government of its armies by any
State officials could be permitted without greatly impairing
the efficiency of, if it did not utterly destroy, this
branch of the public service." Tarble's Case (1871) 13 Wall.
U.S. 408.
(29) U.S. v. Bevans (1818) 3 Wheat. U.S. 336; Dynes v. Hoover
(1857) 20 How. U.S. 85.
"The authority to build and equip vessels of war is,
doubtless, implied in the power to declare war, but the same
authority is more directly conferred by the power to
`provide and maintain a navy.'" U.S. v. Burlington, etc.,
Ferry Co. (1884) 1 Abb.U.S. 28, 27 Fed. Cases No. 16,151.
(30) Houston v. Moore (1820) 5 Wheat. U.S. 1; Martin v. Mott
(1827) 12 Wheat. U.S. 19; Luther v. Borden (1849) 7 How.
U.S. 1; Crandall v. Nevada (1867)6Wall U.S. 35; Texas v.
White (1868)7 Wall U.S. 700; Presser v. Illinois (1886) 116
U.S. 252.
"So long as the militia are acting under the military
jurisdiction of the State to which they belong, the powers
of legislation over them are concurrent in the general and
State government. Congress has power to provide for
organizing, arming, and disciplining them; and this power
being unlimited, except in the two particulars of officering
and training them, according to the discipline to be
prescribed by Congress, it may be exercised to any extent
that may be deemed necessary by Congress. But as State
militia, the power of the State governments to legislate on
the same subjects, having existed prior to the formation of
the Constitution, and not having been prohibited by that
instrument, it remains with the States, subordinate
nevertheless to the paramount law of the general government,
operating upon the same subject." Houston v. Moore (1820) 5
Wheat. U.S. 16.
(31) Hepburn v. Ellzey (1804) 2 Cranch U.S. 445; Loughborough v.
Blake (1820) 5 Wheat. U.S. 317; Cohen v. Virginia (1821) 6
Wheat. U.S. 264; American Ins. Co. v. 356 Bales of
Cotton(1828) 1 Pet. U.S. 511; Kendall v. U.S. (1838) 12 Pet.
U.S. 524; U.S. v. Dewitt (1869) 9 Wall. U.S. 41; Dunphy v.
Kleinsmith (1870) 11 Wall. U.S. 610; Willard v. Presbury
(1871) 14 Wall U.S. 676; Kohl v. U.S. (1875) 91 U.S. 367;
Phillips v. Payne (1875) 92 U.S. 130; U.S. v. Fox (1876) 94
U.S. 315; Ft. Leavenworth R. Co. v. Lowe (1885) 114 U.S.
525; Gibbons v. District of Columbia (1886) 116 U.S. 404;
Van Brocklin v. Tennessee (1886) 117 U.S. 151; Stoutenburgh
v. Hennick (1889) 129U.S. 141; Geofroy v. Riggs(1890) 133
U.S. 258; Benson v. U.S. (1892) 146 U.S. 325; Shoemaker v.
U.S. (1893) 147 U.S. 282; Chappell v. U.S. (1896) 160 U.S.
499; Ohio v. Thomas (1899) 173 U.S. 276; wightv. Davidson
(1901) 181 U.S. 371.
"When the title is acquired by purchase by consent of the
legislatures of the States, the Federal jurisdiction is
exclusive of all State authority. This follows from the
declaration of the Constitution that Congress shall have
`like authority' over such places as it has over the
district which is the seat of government; that is, the power
of `exclusive legislation in all cases whatsoever.' Broader
or clearer language could not be used to exclude all other
authority than that of Congress." Ft. Leavenworth R. Co. v.
Lowe (1885) 114 U.S. 532.
(32) U.S. v. Hamilton, (1795) 3 Dall. U.S. 17; Hepburn v. Eltzey,
(1804) 2 Cranch U.S. 446; Ex p. Bollman, (1807) 4 Cranch
U.S. 76; Ex p. Kearney, (1822) 7 Wheat. U.S. 38; Ex p.
Watkins, (1830) 3 Pet. U.S. 193; Ex p. Milburn, (1636) 9
Pet. U.S. 704; Holmes v. Jennison, (1840) 14 Pet. U.S. 640;
Ex p. Dorr (1845) 3 How. U.S. 103; Luther v. Borden, (1849)
7 How. U.S. 1; Ableman v. Booth, (1858) 21 How. U.S. 506; Ex
p. Vallandigham, (1863) 1 Wall. U.S. 243; Ex p. Milligan,
(1868) 4 Wall. U.S. 2; Ex p. McCardle, (1868) 7 Wall. U.S.
508; Ex p. Yerger, (1868) 8 Wall. U.S. 85; Tarble's Case,
(1871) 13 Wall. U.S. 307; Ex p. Lange, (1873) 18 Wall. U.S.
163; Ex p. Parks, (1876) 93 U.S. 18; Ex p. Karstendick,
(1876) 93 U. S. 396; Ex p. Virginia, (1879) 100 U.S. 339; In
re Neagle (1890) 135 U. S. 1; in re Frederich (1893) 149
U.S. 70.
"The Constitution also declares that the privilege of the
writ of habeas corpus shall not be suspended, unless when in
cases of rebellion or invasion the public safety may require
it. No express power is given to Congress to secure this
invaluable right in the non-enumerated cases, or to suspend
the writ in cases of rebellion or invasion. And yet it would
be difficult to say, since this great writ of liberty is
usually provided for by the ordinary functions of
legislation, and can be effectually provided for only in
this way, that it ought not to be deemed by necessary
implication within the scope of the legislative power of
Congress." Prigg v. Pennsylvania (1842) 16Pet. U.S. 619.
(33) Fletcher v. Peck (1810) 6 Cranch U.S. 87; Ogden v. Saunders
(1827) 12 Wheat.U.S. 213; Watson v. Mercer (1834) 9 Pet.
U.S. 88; Carpenter v. Pennsylvania (1854) 17 How. U.S. 456;
Locke v. New Orleans (1866) 4 Wall U.S. 172; Cummings v.
Missouri (1866) 4 Wall. U.S. 277; Ex p. Garland (1866) 4
Wall. (C.S.) 333; Drehman v. Tittle (1869) 8 Wall. U.S. 595;
Klinger v. Missouri (1871) 13 Wall. U.S. 257; Pierce v.
Carskadon (1872) 16 Wall.U.S. 234; Hopt v. Utah (1884) 110
U.S. 574; Cook v. U.S. (1891) 138 U.S. 157; Neely v. Henkel
(1901) 180 U.S. 109; Southwestern coal Co. v. McBride (1902)
185 U.S. 499.
(34) License Tax Cases (1866) 5 Wall. U.S. 462; Springer v. U.S.
(1881) 102 U.S. 586; Nicol v. Ames (1899) 173 U.S. 509.
"If Congress sees fit to impose a capitation, or other
direct tax, it must be laid in proportion to the census; if
Congress determines to impose duties, imposts, and excesses,
they must be uniform throughout the United States. These are
not strictly limitations of power. They are rules
prescribing the mode in which it shall be exercised." Veazie
Bank v. Fenno (1869) 8 Wall. U.S. 541.
(35) Cooley v. Board of Wardens (1851) 12 How. U.S. 299; Pace v.
Burgess (1875) 92 U.S. 372; Turpin v. Burgess (1886) 117
U.S. 504; Pittsburg, Etc., Coal Co. v. Bates (1895) 156 U.S.
577; Nicol v. Ames (1899) 173 U.S. 509; Williams v. Fears
(1900) 179 U.S. 270; De Lima v. Bidwell (1901) 182 U.S.
151; Fourteen Diamond Rings v. U.S. (1901) 183 U.S. 176;
Cornell v. Coyne (1904) 192 U.S. 418.
"The purpose of the restriction is that exportation, all
exportation, shall be free from national burden." Fairbank
v. U.S. (1901) 181 U.S. 292.
(36) Cooley v. Board of Wardens (1851) 12 How. U.S. 299;
Pennsylvania v. Wheeling,Etc., Bridge Co. (1855) 18 How.
U.S. 421; Munn v. Illinois (1876) 94 U.S. 113; Northwestern
Union Packet Co. v. St. Louis (1879) 100 U.S. 423;
Cincinnati, etc., Packet Co. v. Catlettsburg (1881) 105
U.S. 559; Spraigue v. Thompson (1886) 118 U.S. 90; Morgan's
Steamship co. v. Louisiana Board of Health (1886) 118 U.S.
455; Johnson v. Chicago, etc., Elevator Co. (1886) 119 U.S.
388.
This clause "is a limitation upon the power of Congress to
regulate commerce, for the purpose of producing entire
commercial equality within the United States, and also a
prohibition upon the State to destroy such equality by any
legislation prescribing a condition upon which vessels bound
from one State shall enter the ports of another State." Per
Mr. Justice Wayne, in Norris v. Boston (1849) 7 How. U.S.
414. See also Pennsylvania v. Wheeling, etc., Bridge Co.
(1855) 18 How. U.S. 433; Williams v. The Lizzie Henderson
(1880) 20 Fed. Cases No. 17,726a.
"This provision operates only as a limitation of the powers
of Congress, and in no respect affects the States in the
regulation of their domestic affairs." Munn v. Illinois
(1876) 94 U.S. 135.
(37) "A State is forbidden to enter into any treaty, alliance, or
confederation. If these compacts are with foreign nations,
they interfere with the treaty-making power which is
conferred entirely on the general government; if with each
other, for political purposes, they can scarcely fail to
interfere with the general purpose and intent of the
Constitution. To grant letters of marque and reprisal, would
lead directly to war; the power of declaring which is
expressly given to Congress." Per Mr. Chief Justice
Marshall, in Barron v. Baltimore (1833) 7 Pet. U.S. 249.
(38) Decisions relating to making anything but gold and silver
coin a tender in payment of debts. Craig v. Missouri (1830)
4 Pet. U.S. 410;Byrne v. Missourti (1834) 8 Pet. U.S. 40;
Briscoe v. Kentucky Com. Bank (1837) 11 Pet. U.S. 257;
Darrington v. Branch Bank (1851) 13 How. U.S. 12.
Decisions relating to ex post facto law. Calder v. Bull
(1798) 3 Dall. U.S. 386; Watson v. Mercer (1834) 8 Pet. U.S.
88; Carpenter v. Pennsylvania, (1854) 17 How. U.S. 466;
Locke v. New Orleans, (1866) 4 Wall. U.S. 172; Ex p. Garland
(1866) 4 Wall U.S. 333; Gut v. Minnesota, (1869) 9 Wall.
U.S. 35; Kring v. Missouri, (1882) 107 U.S. 221; Jaehne v.
New York (1888) 128 U.S. 189; Medley, Petitioner, (1890) 134
U.S. 160; Holden v. Minnesota (1890) 137 U.S. 483; Hawker v.
New York (1898) 170 U.S. 189; Thompson v. Missouri, (1898)
171 U.S. 380; McDonald v. Massachusetts, (1901) 180 U.S.
311; Mallett v. North Carolina (1901) 181 U.S. 589; Reetz v.
Michigan, (1903) 188 U. S. 505.
Decisions relating to laws impairing the obligation of
contracts. Fletcher v. Peck, (1810) 6 Cranch U.S. 87; New
Jersey v. Wilson, (1812) 7 Cranch U.S. 164; Sturges v.
Crowninshield. (1819) 4 Wheat. U.S. 122; M'Millan v.
M'Neill, (1819) 4 Wheat. U.S. 209; Dartmouth College v.
Woodward, (1819) 4 Wheat. U.S. 518; Owings v. Speed, (1820)
5 Wheat. U.S. 420; Farment etc., Bank v. Smith, (1821) 6
Wheat. U.S. 131; Green v. Biddle. (1823) 8 Wheat. U.S. 1,
Ogden v. Saunders (1827) 12 Wheat. U.S. 213; Mason v. Raile,
(1827) 12 Wheat. U.S. 370; Sauterlee v. Matthewson. (1829) 2
Pet. U.S. 380; Jackson v. Lamphire (1830) 3 Pet. U.S. 280;
Providence Bank v. Billings (183O) 4 Pet. U.S. 514; Mumma v.
Potomac Co., (1834) 8 Pet. U.S. 281; Beers v. Houghton.
(1835) 9 Pet. U.S. 329; Charles River Bridge v. Warren
Bridge, (1837) 11 Pet. U.S. 420; Armstrong v. Treasurer,
(1842) 16 Pet. U.S. 281; Bronson v. Kinzie. (1843) 1 How.
U.S. 311; McCracken v. Hayward (1844) 2 How. U.S. 608;
Gordon v. Appeal Tax Ct., (1845) 3 How. U.S. 133; Maryland
v. Baltimore, etc., R. Co., (1845) 3 How. U.S. 534; Neil v.
Ohio, (1845) 3 How. U.S. 720; Cook v. Moffat, (1847) 5 How.
U.S. 295; Planters' Bank v. Sharp (1848) 6 How. U.S. 301;
West River Bridge Co. v. Dix (1848) 6 How. U.S. 507;
Crawford v. Branch Bank, (1849) 7 How. U.S. 279; Woodruff v.
Trapnall, (1850) 10 How. U.S. 190; Paup v. Drew (1850) 10
How. U.S. 218; Baltimore. etc., R. Co. v. Nesbit, (1650) 10
How. U.S. 395; Butler v. Pennsylvania, (1850) 10 How. U.S.
402; Richmond, etc., R. Co. v. Louisa R. Co., (1851) 13 How.
U.S. 71; Vincennes University v. Indiana, (1852) 14 How.
U.S. 268; Curran v. Arkanue. (1853) 15 How. U.S. 304; Piqua
Branch of State Bank v. Knoop, (1853) 16 How. U.S. 369;
Dodge v. Woolsey, (1855) 18 How. U.S. 331; Beers v.
Arkansas, (1857) 20 How. U.S. 527; Aspinwall v. Daviess
County, (1859) 22 How. U.S. 364; Christ Church v.
Philadelphia County, (1860) 24 How. U.S. 300; Howard v.
Bugbee (1860) 24 How. U.S. 461; Jefferson Branch Bank v.
Skelly, (1861) 1 Black U.S. 436; Franklin Branch Bank v.
Ohio. (1861) 1 Black U.S. 474; Wabash, etc., Canal Co. v.
Beers, (1862) 2 Black U.S. 448; Gilman v. Sheboygan, (1862)
2 Black U.S. 510; Passaic River, etc.. Bridge v. Hoboken
Land etc. Co., (1863) 1 Wall. U.S. 116; Hawthorne v. Calef,
(1864) 2 Wall. U.S. 10; Binghampton Bridge, (1865) 3 Wall.
U.S. 51; Washington, etc., Turnpike Co. v. Maryland, (1865)
3 Wall. U.S. 210; Missouri, etc., R. Co. v. Rock, (1866) 4
Wall. U.S. 177; Cummings v. Missouri, (1866) 4 Wall. U.S.
177; Von Hoffman v. Quincy, (1866) 4 Wall. U.S. 536;
Mulligan v. Corbins, (1868) 7 Wall. U.S. 487; Furman v.
Nichol, (1868) 8 Wall. U.S. 44; Home of Friendless v. Rouse,
(1869) 8 Wall. U.S. 430; Washingion University v. Rouse.
(1869) 8 Wall. U.S. 439; Butz v. Muscatine (1869) 6 Wall.
U.S. 675; Drehman v. Stille, (1869) 8 Wall. U.S. 605;
Hepburn v. Griswold, (1869) 8 Wall. U.S. 603; Ohio, etc., R.
Co. v. McClure, (1870) 10 Wall. U.S. 511; Legal Tender
Cases, (1870) 12 Wall. U.S. 457; Curtis v. Whitney, (1871)
13 Wall. U.S. 68; Penniiylvania College Cases (1871) 13
Wall. U.S. 190; Wilmington etc., R. Co. v. Reid (1871) 13
Wall. U.S. 264, East Saginaw Salt Mfg. Co. v. East Saginaw,
(1871) 13 Wall. U.S. 373; Whits v. Hart, (1871) 13 Wall.
U.S. 646; Osborn v. Nicholson, (1871) 13 Wall. U.S. 854;
Norwich, etc., R. Co. v. Johnson. (1872) 15 Wall. U.S. 195;
State Tax on Foreign-held Bunds; (1872) 16 Wall. U.S. 300;
Tomlinson v. Jessup, (1872) 15 Wall. U.S. 464; Tomlinson v.
Branch. (1872) 15 Wall. U.S. 460; Miller v. New York (1872)
15 Wall. U.S. 478; Holyoke Water-Power Co. v. Lyman (1872)
16 Wall. U.S. 500; Gunn v. Barry (1872) 16 Wall. U.S. 610;
Humphrey v. Pegues (1872) 16 Wall. U.S. 244; Walker v.
Whitehead, (1872) 16 Wall. U.S. 314; Sohn v. Waterson (1873)
17 Wall. U.S. 596; Barings v. Dabney. (1873) 19 Wall. U.S.
1; Head v. Missouri University (1873) 19 Wall. U.S. 526;
Pacific R. Co. v. Maguire (1873) 20 Wall. U.S. 36; Garrison
v. New York, (1874) 21 Wall. U.S. 196; Ochiltree v. Iowa R.
Contracting Co., (1874) 21 Wall. (U. S.) 249; Wilmington,
etc., R. Co. v. King. (1875) 91 U.S. 3; Moultire County v.
Rockingham Ten-Cent Sav.-Bank (1875) 92 U.S. 631; Home Ins.
Co. v. Augusta (1876) 93 U.S. 118; West Wisconsin R. Co. v.
Trempealeau County, (1876) 93 U.S. 596; New Jersey v. Yard
(1877) 95 U.S. 104; Cairo, etc., R. Co. v. Hecht (1877) 95
U.S. 168; Terry v. Anderson (1877) 95 U.S. 628; Farrington
v. Tennessee (1877) 95 U.S. 679; Blount v. Windley, (1877)
95 U.S. 173; Murray v. Charleston, (1877) 96 U.S. 432;
Edwards v. Kearzey. (1877) 96 U.S. 595; Tennessee v. Sneed
(1877) 96 U.S. 69; Williams v. Bruffy (1877) 96 U.S. 176;
Richmond, etc., R Co. v.Richmond (1877) 96 U.S. 521; Boston
Beer Co. v. Massachusetts (1877) 97 U.S. 25; Northwestern
Fertilizer Co. v. Hyde Park (1878) 97 U.S. 659; Memphis,
etc., R. Co. v. Gaines. (1878) 97 U.S. 697; U.S. v. Memphis
(1877) 97 U.S. 284; Keith v. Clark (1878) 107 U.S. 454;
Atlantic, etc., R. Co. v. Georgia, (1878) 98 U.S. 359;
Northwestern University v. People, (1878) 99 U.S. 309;
Newton v. Mahoning County, (1879) 100 U.S. 548; Memphis,
etc., R. Co. v. Tennessee (1879) 101 U.S. 337; Wright v.
Nagle, (1879) 101 U.S. 791; Stone v. Mississippi (1879) 101
U.S.814; South, etc., Alabama R. Co. v. Alabama, (1879) 101
U.S. 832; Louisiana v. New Orleans (1880) 102 U.S. 203; Hall
v. Wisconsin (1880) 103 U.S. 5; Penniman's Case. (1880) 103
U.S. 714; Wolff v. New Orleans (1860) 103 U.S. 358;
Koshkonong v. Burton, (1882) 104 U.S. 668; New Haven, etc.,
R. Co. v. Hamersley (1881) 104 U.S. 1; Clay County v.
Savings Soc. (1882) 104 U.S. 579; New York Guaranty, etc.,
Co. v. Board of Liquidation, (1881) 105 U.S. 622; Greenwood
v. Union Freight R. Co. (1881) 103 U.S. 13; St. Anna's
Asylum v. New Orleans, (1881) 105 U.S. 362; Louisiana v.
Pilsbury (1881) 105 U.S. 278; New Orleans v. Morris (1881)
105 U.S. 278; Close v. Glenwood Cemetery, (1882) 107 U.S.
466; Antoni v. Greenhow, (1882) 107 U.S. 769; Vance v.
Vance, (1883) 108 U.S. 514; Memphis Gas Light Co. v. Shelby
County Taxing Dist., (Itib3) 109 U.S. 398; Canada Southern
R. Co. v. Gebhard (1883) 109 U.S. 527; Louisiana v. New
Orleans, (1883) 109 U.S. 285; Gilfillan v. Union Canal Co.,
(1883) 109 U.S. 401; Spring Valley Water Works v. Schottler,
(1884) 110 U.S. 347; Butchers' Uulon Slaughter-House, etc.,
Co. v. Crescent City Live Stock Landing, etc, Co., (1884)
111 U.S. 746; Nelson v. Police Jury. (1884) 111 U.S. 716;
Marye v. Parsons, (1884) 114 U.S. 325; Poindexter v.
Greenhow, (1884) 114 U.S. 270; Amy v. Shelby County Taxing
Dist., (1885) 114 U.S. 387; Allen v. Baltimore, etc., R.
Co., (1884) 114 U.S. 311; Effinger v. Kenney, (1885) 115
U.S. 566; New Orleans Gas Co. v. Lousiana Light Co., (1885)
115 U.S. 650; Louisville Gas Co. v. Citizens Gas Co., (1885)
115 U.S. 693. New Orleans Water-Works Co. v. Rivers, (1885)
115 U.S. 674; Fisk v. Jefferson Police Jury, (1885) 166 U.S.
131; Mobile v. Watson (1886) 116 U.S. 289; New Orleans v.
Houston, (1896) 119 U.S. 265, St. Tammany Water-Works v. New
Orleans Water-Works, (1887) 120 U.S. 64; Church v. Kelsey
(1887) 121 U.S. 282; Lehigh Water Co. v. Easton, (1897) 121
U.S. 388; Seibert v. Lewis, (1887) 122 U.S. 284; New Orleans
Water-Works Co. v. Louisiana Sugar Refining Co. (1888) 125
U.S. 18; Maynard v. Hill, (1888) 125 U.S. 190; Denny v.
Bennett (1888) 128 U.S. 489; Williamson v. New Jersey (1889)
130 U.S. 189; Freeland v. Williams, (1889) 131 U.S. 405;
Campbell v. Wade. (1889) 132 U.S. 34; Pennsylvania R. Co. v.
Miller, (1889) 132 U.S. 75; Pennie v. Reis, (1889) 132 U.S.
464; Hans v. Louisiana, (1890) 134 U.S. 1; Crenshaw v. U.S.,
(1890) 134 U.S. 99; Chicago, etc., R. Co. v. Minnesota,
(1890) 134 U.S. 418; Minneapolis Eastern R. Co. v.
Minnesota, (1890) 134 U.S. 467; Hill v. Merchants' Mut. Ins.
Co., (1890) 134 U.S. 515; McGahey v. Virginia. (1890) 135
U.S. 662; U.S. v. North Carolina (189O) 136 U.S. 211;
Wheeler v. Jackson, (1890) 137 U.S. 245; Sioux City St. R.
Co. v. Sioux City, (1891) 138 U.S. 98; Wheeling, etc.,
Bridge Co. v. Wheeling bridge Co., (1891) 138 U.S. 287;
Pennoyer v. McConnaughy (1891) 140 U.S. 1; Scotland County
Ct. v. U. S., (Idol) 140 U.S. 41; Essex Public Road Board v.
Skinkle, (1891) 140 U.S. 334; Stein v. Bienville Water
Supply Co., (1891) 141 U.S. 67; New Orleans v. New Orleans
Water Works Co., (1891) 142 U.S. 79; New Orleans City, etc.,
R. Co. v. New Orleans (1892) 143 U.S. 199; Louisville Water
Co. v. Clark (1892) 143 U.S. 1; New York v. Squire, (1892)
145 U.S. 175; Baker v. Kilgore, (1892) 145 U.S. 487; Morley
v. Lake Shore R. Co. (1892) 146 U.S. 102; Hamilton Gas
Light, etc. Co. v. Hamilton, (1892) 146 U.S. 258;
Wilmington, etc.. R. Co. v. Alsbrook, (18021 146 U.S. 279;
Illinois Central R. Co. v. Illinois (1892) 146 U.S. 387;
Bier v. McGehee, (1893) 148 U.S. 137; People v. Cook, (1893)
148 U.S. 397; New York, etc., R. Co. v. Bristol, (1894) 151
U.S. 656; Bryan v. Board of Education (1894) 151 U.S. 639;
Duncan v. Missouri (1894) 152, U.S. 377; New Orleans v.
Benjuiuln, (1894) 153 U.S. 411; Eagle Ins. Co. v. Ohio,
(1804) 163 U.S. 440; New York, etc., R. Co. v. Pennsylvania
(1894) 153 U.S. 828; Mobile, etc., R. Co. v. Tennessee,
(1894) 153 U.S. 486; U.S. v. Thoman, (1895) 156 U.S. 353;
St. Louis, etc., R. Co. v. Gill, (1895) 156 U.S. 649; New
Orleans City, etc., R. Co. v. Louisiana (1895) 157 U.S. 210;
Bank of Commerce v. Tenneessee (1895) 161 U.S. 134; Baltzer
v. North Carolina (1896) 161 U.S. 240; Pearsall v. Great
Northern R. Co., (1896) 161 U.S. 646; Louisville, etc., R.
Co. v. Kentucky, (1896) 101 U.S. 677; Woodruff v.
Mississippi, (1896) 162 U.S. 201; Gibson v. Missiissippi
(1896) 162 U.S. 605; Barnitz v. Beverly, (1896) 163 U.S.
119; Hanford v. Davies, (1896) 163 U.S. 273; Covington,
etc., Turnpike Road Co. v. Sandford, (1896) 164 U.S. 578;
St. Louis, etc., R. Co. v. Mathews, (1897) 165 U.S. 1; Grand
Lodge, etc. v. New Orleans (1897) 166 U.S. 143; Baltimore v.
Baltimore Trust, etc., Co., (1897) 168 U.S. 673; City R. Co.
v. Citizens St. R. Co., (1897) 166 U.S. 657; Wabash R. Co.
v. Defiance, (1897) 167 U.S. 88; Shapleigh v. San Angelo,
(1897) 167 U.S. 646; St. Anthony Falls Water Power Co. v.
St. Paul Water Com'rs (1897) 168 U.S. 340; Douglas v.
Kentucky, (1897) 168 U.S. 488; Galveston, etc., R. Co. v.
Texas (1898) 170 U.S. 226; Houston, etc., R. Co. v. Texas
(1898) 170 U.S. 243; Williams v. Eggleston (1898) 170 U.S.
304; Chicago, etc., R. Co. v. Nebraska, (1898) 170 U.S. 57;
Missouri v. Murphy (1898) 170 U.S. 78; Louisville Water Co.
v. Kentucky, (1898) 170 U.S. 127; Walla Walla v. Walla Walla
Water Co, (1898) 172 U.S. 1; McCullough v. Virginia (1898)
172 U.S. 102; Connecticut Mut L. Co. v. Spratley, (1899) 172
U.S. 602; Citizens Savs Bank v. OwensLoro (1899) 173 U.S.
636; Lake Shore, etc., R. Co. v. Smith, (1899) 173 U.S. 684;
Covington v. Kentucky, (1899) 173 U.S. 231; Henderson Bridge
Co. v. Henderson (1899) 173 U.S. 592; Walsh v. Columbus,
etc., R. Co., (1900) 176 U.S. 469; Adirondack R. Co. v. New
York, (1900) 176 U.S. 335; New York L. Ins. Co. v. Cravens
(1900) 178 U.S. 389; Looker v. Maynard, (1900) 179 U.S. 46;
Stearns v. Minnesota. (1900) 179 U.S. 223; lllinois Cent. R.
Co. v. Adams, (1901) 180 U.S. 28; St. Paul Gas Light Co. v.
St. Paul, (1901) 181 U.S. 142; Red River Valley Nat. Bank v.
Craig, (1901) 181 U.S. 548; Bedford v. Eastern Bldg. etc.,
Assoc. (1901) 161 U.S. 227; Knoxville Iron Co. v. Harbison,
(1901) 183 U.S. 13; Orr v. Gilman, (1902) 183 U.S. 278;
Wilson v. Iseminger, (1902) 185 U.S. 55; Vicksburg Water-
Works Co. v. Vicksburg, (1902) 185 U.S. 65; Hanover Nat.
Bank v. Moyses (1902) 188 U.S. 181; Northern Cent. R. Co. v.
Maryland, (1902) 187 U.S. 256; Oshkosh Waterworks Co. v.
Oshkosh (1903) 187 U.S. 437; Diamond Glue Co. v. U.S. Glue
Co. (1903) 187 U.S. 611; Weber v. Rogan, (1903) 188 U.S. 10;
Blackstone v. Miller, (1903) 188 U.S. 189; Waggoner v.
Flack, (1903) 188 U.S. 595; Owensboro v. Owensboro
Waterworks Co., (1903) 191 U.S. 358; Wisconsin, etc., R. Co.
v. Powers, (1903) 191 U.S. 319; Deposit Bank v. Frankfort,
(1903) 191 U.S. 499; Citizens' Bank v. Parker, (1904) 192
U.S. 73; Stanislaus County v. San Joaquin, etc., Canal,
etc., Co., (1904) 192 U.S. 201.
(39) McCulloch v. Maryland, (1819) 4 Wheat. U.S. 316; Gibbons v.
Ogden (1824) 9 Wheat. U.S. 1; Brown v. Maryland, (1827) 12
Wheat. U.S. 419; Mager v. Grima (1850) 8 How. U. S. 490;
Cooley v. Board of Wardens, (1851) 12 How. U.S. 209; Almy v.
California. (1860) 24 How. U.S. 169; License Tax Cases
(1866) 5 Wall. U.S. 462; Crandall v. Nevada. (1867) 6 Wall.
U.S. 35; Waring v. Mobile, (1868) 8 Wall. U.S. 110, Woodruff
v. Parham, (1868) 8 Wall. U.S. 123; Hinson v. Lott (1868) 8
Wall. U.S. 148; State Tonnage Tax Cases (1870) 12 Wall.U.S.
204; State Tax on Railway Gross Receipts (1872) 15 Wall.
U.S. 284; Inman Steamship Co. v. Tinker (1876) 94 U.S. 238
Cook v. Pennsylvania (1878) 97 U.S. 566; Keokuk Northern
Line Packet Co. v. Keokuk, (1877) 95 U.S. 80; People v.
Compagnie Generale Transatlantique, (1882) 107 U.S. 69;
Turner v. Maryland, (1882) 107 U.S. 38; Brown v. Houston,
(1885) 114 U.S. 622; Coe. v. Errol (1886) 116 U.S. 517;
Turpin v. Burgess, (1886) 117 U.S. 504; Pittsburg, etc.,
Coal Co. v. Bates (1895) 156 U.S. 677; Pittsburg, etc., Coal
Co. v. Louisiana, (1895) 156 U.S. 500; Scott v. Donald,
(1897) 165 U.S. 58; Patapsco Guano Co. v. North Carolina
Board of Agriculture, (1898) 171 U.S. 345; May v. New
Orleans (1900) 178 U.S. 406; Dooley v. U.S., (1901) 193 U.S.
161; Cornell v. Coyne, (1904) 192 U.S. 418; American Steel
etc., Co. v. Speed, (1904) 192 U.S. 600.
"Prior to the adoption of the Constitution the States
attempted to regulate commerce, and they also levied duties
on imports and exports and duties of tonnage, and it was the
embarrassments growing out of such regulations and
conflicting obligations which mainly led to the abandonment
of the confederation and to the more perfect union under the
present Constitution." State Tonnage Tax Cases (1870) 12
Wall. U.S. 214. See also Brown v. Maryland (1827) 12 Wheat.
U.S. 439.
(40) Green v. Biddle, (1823) 8 Wheat. U.S. 1; Poole v. Fleeger
(1837) 11 Pet. U.S. 185; Cooley v. Board of Wardens (1851)
12 How. U.S. 299; Peete v. Morgan, (1873) 19 Wall. U.S. 591;
Cannon v. New Orleans, (1874) 20 Wall. U.S. 577; lnman
Steamship Co. v. Tinker, (1876) 94 U.S. 238; Wheeling. etc.,
Transp. Co. v. Wheeling. (1878) 99 U.S. 273; Northwestern
Union Packet Co. v. St. Louis (1870) 100 U.S. 423; Keokuk
Northern Line Packet Co. v. Keokuk, (1877) 95 U.S. 80;
Vicksburg v. Tobin, (1870) 100 U.S. 410; Cincinnati, etc.,
Packet Co. v. Catlettsburg (1881) 105 U.S. 659; Wiggins
Ferry Co. v. East St. Louis (1882) 107 U.S. 365;
Parkersburg. etc., Transp. Co. v. Parkersburg. (1882) 107
U.S. 691; Presser v. Illinois, (1886) 110 U.S. 252; U.S.
465; Huse v.. Glover. (1886) 119 U.S. 543; Quachita Packet
Co. v. Aiken. (1887) 121 U.S. 444; Indiana v. Kentucky.
(1890) 130 U.S. 479; Virginia v. Tennessee (1893) 148 U. S.
503; Wharton v. Wise (1894) 153 U.S. 155; St. Louis etc., R.
Co. v. James (1896) 161 U.S. 545.
"Looking at the clause [in the Federal Constitution] in
which the terms `compact' or `agreement' appear, it is
evident that the prohibition is directed to the formation of
any combination tending to the increase of political power
in the States, which may encroach upon or interfere with the
just supremacy of the United States." Virginia v. Tennessee
(1893) 148 U.S. 519.
(41) Field v. Clark (1892) 143 U.S. 649; Chisholm v. Georgia
(1793) 2 Dall. U.S. 419; Leitensdorfer v. Webb (1857) 20
How. U.S. 176; Ex p. Siebold, (1879) 100 U.S. 371; In re
Green, (1890) 134 U.S. 377; McPherson v. Blacker, (1892) 146
U.S. 1.
"Congress is empowered to determine the time of choosing the
electors and the day on which they are to give their votes,
which is required to be the same day throughout the United
States, but otherwise the power and jurisdiction of the
State is exclusive, with the exception of the provisions as
to the number of electors and the ineligibility of certain
persons, so framed that congressional and federal influence
might be excluded." McPherson v. Blacker,, (1892) 146 U.S.
35.
(42) Inglis v. Sailor's Snug Harbour, (1830) 3 Pet. U.S. 99.
(43) Hayburns Case (1792) 2 Dall. U.S. 410; Chisholm v. Georgia
(1793) 12 Dall. U.S. 410; Glass v. The Sloop Betsey (1794) 3
Dall. U.S. 6; U.S. v. La Vengeance (1796) 3 Dall. U.S. 297;
Hollingsworth v. Virginia. (1798) 3 Dall. U.S. 379; Moisman
v. Higginson, (1800) 4 Dall. U.S. 12; Marbury v. Madison,
(1803) 1 Cranch U.S. 137; Hepburn v. Ellzey, (1894) 2 Cranch
U.S. 445; U.S. v. More, (1806) 3 Cranch U.S. 159;
Strawbridge v. Curtis (1806) 3 Cranch U.S. 267; Ex p.
Bollman (1807) 4 Cranch U.S. 75; Rose v. Himely, (1808) 4
Cranch U.S. 241; Chappedelaine w. Dechenaux, (1806) 4 Cranch
U.S. 306; Hope Ins. Co. v. Boardman, (1800) 5 Cranch U.S.
57; U.S. Bank v. Deveaux, (1809) 5 Cranch U.S. 61; Hodgson
v. Bowerbank, (1809) 5 Cranch U.S. 303; Owings v. Norwood,
(1809) 5 Cranch U.S. 344; Dorousseau w. U.S.p (1810) 6
Cranch U.S. 307; U.S. v. Hudson, (1812) 7 Cranch U.S. 32;
Martin v. Hunter, (1816) 1 Wheat. U.S. 304; Colson v. Lewis,
(1817) 2 Wheat. U.S. 377; U.S. v. Bevans, (1818) 3 Wheat.
U.S. 336; Cohen v. Virginia, (1821) 6 Wheat. U.S. 264; Ex p.
v. Kear- ney, (1822) 7 Wheat. U.S. 38; Matthews v. Zane,
(1822) 7 Wheat. U.S. 164, Osnorn v. U.S. Bank, (1824) 9
Wheat. U.S. 738; U.S. v. Ortega (1826) 11 Wheat. U.S. 467;
American Ins. Co. v. 358 Bales Cotton, (1828) 1 Pet. U.S.
511; Jackson v. Twentyman, (1820) 2 Pet. U.S. 136; Cherokee
Nation v. Georgia, (1831) 5 Pet. U.S. 1; New Jersey v. New
York, (1831) 5 Pet. U.S. 284; Davis v. Packard, (1832) 6
Pet. U.S. 41, (1833) 7 Pet. U.S. 270; U.S. v. Arredondo,
(1832) 6 Pet. (U.iS.) 601; Breedlove v. Nicolet, (1833) 7
Pet. U.S. 413; Brown v. Keene. (1834) 8 Pet. U.S. 112; Davis
v. Packard (1834) 8 Pet. U.S. 312; New Orleans v. De Armas
(1835) 9. Pet. U.S. 224; Rhode lsland v. Massachusetts
(1838) 12 Pet. U.S. 657; Augusta Bank v. Earle, (1830) 13
Pet. U.S. 510; Commercial, etc., Bank v. Slocomb, (1840) 14
Pet. U.S. 60; Suydam v. Broadnax (1840) 14 Pet. U.S. 07;
Prigg v. Pennsylvania, (1842) 16 Pet. U.S. 539; Louisville,
etc., R. Co. v. Letson, (1844) 2 How. U.S. 497; Cary v.
Curtis, (1845) 3 How. U.S. 236; Waring v. Clarke, (1847) 5
How. U.S. 441; Luther v. Borden, (1849) 7 How. U.S. 1;
Sheldon v. Sill, (1850) 8 How. U.S. 441; The Propeller
Genesee Chief v. Fitzhugh (1851) 12 How. U.S. 443; Fretz v.
Bull, (1851) 12 How. U.S. 466; Neves v. Scott, (1851) 13
How. U.S. 208; Pennsylvania v. Wheeling, etc., Bridge Co.,
(1851) 13 How. U.S. 518; Marshall v. baltimore etc., R. Co.,
(1853) 16 How. U.S. 314; U.S. v. Guthrie, (1854) 17 How.
U.S. 284; Smith v. Maryland, (1856) 18 How. U.S. 71; Jones
v. League, (1853) 18 How. U.S. 76; Murray v. Hoboken Land
etc, Co., (1855) 18 How. U.S. 272; Hyde v. Stone, (1857) 20
How. U.S. 170; Irving v. Marshall. (1857) 20 How. U.S. 558;
Fenn v. Holms, (1858) 21 How. U.S. 481; Morewood v. Enequist
(1859) 23 How. U.S. 491; Kentucky v. Dennison (1860) 24 How.
U.S. 66; Ohio etc., R. Co. v. Wheeler (1861) 1 Black U.S.
286; The Steamer St. Law. rence (1861) 1 Black U.S. 522; The
Propeller Commerce, (1861) 1 Black U.S. 574; Ex p.
Vallandigham, (1883) 1 Wall. U.S. 243; Ex p. Milligan,
(1868) 4 Wall. U.S. 2; The Moses Taylor (1866) 4 Wall. U.S.
411; Mississippi v. Johnson (1866) 4 Wall. U.S. 475; The
Hine v. Trevor, (1868) 4 Wall. U.S. 553,- Philadelphia v.
Collector (1866) 5 Wall. U.S. 720; Georgia v. Stanton,
(1867) 6 Wall. U.S. 50; Payne v. Hook, (1868) 7 Wall. U.S.
425; The Alicia, (1868) 7 Wall. U.S. 571; Ex p. Yerger,
(1868) 8 Wall. U.S. 85; New England Mut. Marine Ins. Co. v.
Dunham, (1870) 11 Wall. U.S. 1; Virginia v. West Virginia
(1870) 11 Wall. U.S. 39; Susquehanna, etc., Valley R., etc.,
Co. v. Blatchford, (1870) 11 Wall. U.S. 172; Chicago, etc.,
R. Co. v. Whitton, (1871) 13 Wall. U.S. 270; Tarble's Case,
(187l) 13 Wall. U.S. 397; Blyew v. U.S., (187l) 13 Wall.
U.S. 581; Davis v. Gray, (1872) 16 Wall. U.S. 203; Sewing
Mach. Co.'s Case, (1873) 18 Wall. U.S. 553; Home Ins. Co. v.
Morse, (1874) 20 Wall. U.S. 445; Vannevar v. Bryant, (1874)
21 Wall. U.S. 41; The Lottawanna, (1874) 21 Wall. U.S. 558;
Gaines v. Fuentes (1875) 92 U.S. 10; Claffin W. Houseman,
(1876) 93 U.S. 130; Muller v. Dows, (1876) 94 U.S. 444;
Doyle v. Continental Ins. Co., (1876) 94 U.S. 535; U.S. v.
Union Pac. R. Co., (1878) 98 U.S. 589; Tennessee v. Davis,
(1879) 100 U.S. 257; Ex p. Boyd, (1881) 105 U.S. 647; Bush
v. Kentucky, (1882) 107 U.S. 110; Parkersburg, etc., Transp.
Co. v. Parkersburg, (1882) 107 U.S. 691; Grads v. U.S.
Mortgage Co., (1883) 108 U.S. 477; Chicago, etc., R. Co. v.
Wiggins Ferry Co, (1893) 108 U.S. 18; Louisiana v. New
Orleans, (1883) 108 U.S. 568; Ellis v. Davis, (1883) 109
U.S. 485; Carroll County v. Smith, (1884) 111 U.S. 556;
Southern Pac. R. Co. v. California, (1888) 118 U.S. 109;
Barron v. Burnside, (1887) 121 U.S. 186; Lincoln County v.
Luning. (1890) 133 U.S. 529; Hans v. Louisiana (1890) 134
U.S. 1; North Carolina v. Temple, (1890) 134 U.S. 22; In re
Neagle, (1890) 135 U.S. 1; Nashua, etc., R. Corp. v. Boston,
etc., R. Corp., (1890) 136 U.S. 356; Jones v. U.S., (1890)
137 U.S. 202; Cook County v. Calumet, etc., Canal, etc, Co.,
(1891) 138 U.S. 635; Manchester v. Massachusetts, (1891) 139
U.S. 240; In re Garnett, (1891) 141 U.S. 1; U.S. v. Texas
(1892) 143 U.S. 821; Southern Pac. R. Co. v. Denton, (1892)
146 U.S. 202; Cooke v. Avery, (1893) 147 U.S. 375; Cates v.
Allen, (1893) 149 U.S. 451; McNulty v. California. (1893)
149 U.S. 645; In re Tyler. (1893) 149 U.S. 104; Newport
Light Co. v. Newport, (1894) 151 U.S. 527; New York, etc.,
R. Co. v. Bristol, (1894) 151 U.S. 650; Isreal v. Arthur,
(1894) 152 U.S. 355; Michigan v. Flint, etc., R Co., (1894)
152 U.S. 363; New Orleans v. Benjamin, (1894) 153 U.S. 411;
Mobile, etc., R. Co. v. Tennessee, (1894) 153 U.S. 486;
Reagan v. Farmers' L. & T. Co., (1894) 154 U.S. 362;
Interstate Commerce Commission v. Brimson. (1894) 154 U.S.
447; Plumley v. Massachusetts (1894) 166 U.S. 461; Andrews
v. Swartz (1895) 156 U.S. 272; St. Louis etc., R. Co. v.
Gill, (1895) 156 U.S. 649; Stevens v. Nichol (1895) 157 U.S.
370; In re Debs (1895) 158 U.S. 564; Central Land Co. v.
Laidley, (1895) 159 U.S. 103; Folsom v. Township Ninety-Six,
(l895) 159 U.S. 611; Laing v. Rigney, (1896) 160 U.S. 531;
St. Louis, etc., R. Co. v. James, (1896) 161 U.S. 545;
Woodruff v. Mississippi (1896) 162 U.S. 291; Fallbrook
Irrigation Dist. v. Bradley, (1896) 164 U.S. 112; Scott v.
Donalad (1897) 165 U.S. 107; Robertson v. Baldwin, (1897)
105 U.S. 275; Chicago etc., R. Co. v. Chicago, (1897) 168
U.S. 226; Forsyth v. Hammond (1897) 166 U.S. 506; Oxley
Stave Co. v. Butler County, (1897) 166 U.S. 648; In re
Lennon, (1897) 166 U.S. 548; City R. Co. v. Citizens' St. R.
Co., (1897) 166 U.S. 557; Douglas v. Kentucky, (1897) 168
U.S. 488; Miller v. Cornwall R. Co., (1897) 168 U.S. 131;
Baker v. Grice, (1898) 169 U.S. 284; Smyth v. Ames (1898)
169 U.S. 466; Backus v. Fort St. Union Depot Co.. (1898) 169
U.S. 557; Tinsley v. Anderson, (1898) 171 U.S. 101; Walla
Walla v. Walla Walla Water Co., (1898) 172 U.S. 1; Green
Bay, etc., Canal Co. v. Patten Paper Co., (1898) 172 U.S.
58; Meyer v. Richmond (1898) 172 U.S. 82; McCullough v.
Virginia, (1898) 172 U.S. 102; Fitts u. McGhee (1899) 172
U.S. 516; Dewey v. Des Moines (1899) 173 U.S. 193; Nicol v.
Ames, (1899) 173 U.S. 500; Covington v. Kentucky, (1899) 173
U.S. 231, La Abra Silver Min. Co. v. U.S.. (1899) 175 U.S.
423; Louisiana v. Texas (1900) 176 U.S. 1; Whitman v. Oxford
Nat. Bank, (1900) 176 U.S. 559; Hancock Nat. Bank v. Farnum,
(1900) 176 U.S. 640; Carter v. Texas (1900) 177 U.S. 442;
Smith v. Reeves (I900) 178 U.S. 436; Western Union Tel. Co.
v. Ann Arbor R. Co.. (1900) 178 U.S. 239; Wiley v. Sinkler,
(1900) 170 U.S. 58; Missouri v. Illinois (1901) 180 U.S.
208, Eastern Bldg., etc.. Assoc. v. Welling. (1901) 181 U.S.
47; Dooley v. U.S., (1901) 182 U.S. 222; Tullock v. Mulvane
(1902) 184 U.S. 497; Patton v. Brady. (1902) 184 U.S. 608;
Kansas v. Colorado, (1902) 185 U.S. 125; Swafford v.
Templeton, (1902) 185 U.S. 487; Mobile Transp. Co. v.
Mobile. (1903) 187 U.S. 470; Andrews v. Andrews. (1903) 188
U.S. 14; Hooker v. Los Angeles, (1903) 188 U.S. 314;
Cummings v. Chicago, (1903) 188 U.S. 410; Schaefer v.
Werling. (1903) 188 U.S. 516; The Roanoke (1903) 189 U.S.
185; Detroit, etc., R. Co. v. Osborn (1903) 189 U.S. 383;
Patterson v. barkEudora (1903) 190 U.S. 169; Howard v.
Fleming, (1903) 191 U.S. 126; Arbuckle b. Blackburn, (1903)
191 U.S. 405; Deposit Bank b. Frankfort (1903) 191 U.S. 499;
Spencer v. Duplan Silk Co. (1903) 191 U.S. 526; Wabash R.
Co. v. Pearce, (1904) 192 U.S. 179; Rogers v. Alabama (1904)
192 U.S. 226; South Dakota v. North Carolina (1904) 192 U.S.
286; Bankers Mut. Casualty Co. v. Minneapolis, etc., R. Co.
(1904) 192 U.S. 371; Spreckels Sugar Refining Co. v. McCIain
(1904) 192 U.S. 397.
(44) U.S. v. Insurgents, (1795) 2 Dall. U.S. 335; U.S. v.
Mitchell (1795) 2 Dall. U.S. 348; Ex p. Bollman, (1807) 4
Cranch U.S. 75; Burr's Trial, 4 Cranch U.S. 469.
"To prevent the possibility of those calamities which result
from the extension of treason to offenses of minor
importance, that great fundamental law which defines and
limits the various departments of our government has given a
rule on the subject both to the legislature and the courts
of America, which neither can be permitted to transcend.
`Treason against the United States shall consist only in
levying war against them, or in adhering to their enemies.
giving them aid and comfort.'" Per Mr. Chief Justice
Marshall, In Ex p. DoIlLnan, (1807) 4 Cranch U.S. 128. See
also U.S. v. Hoxie, (1808) I Paine U.S. 265.
"In the earlier periods of English history, the judges were
often the pliant tools of the king, and exercised the power
of punishing for constructive treasons, under circumstances
the most revolting and greatly to the oppression of innocent
persons. The wise and sagacious framers of our Constitution
have effectually guarded against such abuses of power, by
declaring there shall be no conviction for this high crime
on mere suspicion or on proof of any fact which is not an
overt act of treason established by two witnesses. Charge to
Grand Jury, (1861) 1 Bond U.S. 610.
(45) Bigelow v. Forrest, (1869) 9 Wall. U.S. 330; Day v. Micou,
(1873) 18 Wall. U.S. 156; Ex p. Lange, (1873) 18 Wall. U.S.
163; Wallach v. Van Riswick, (1876) 92 U.S. 202; U.S. v.
Dunnington. (1892) 146 U.S. 338.
"What was intended by the constitutional provision is free
from doubt. In England, attainders of treason worked
corruption of blood and perpetual forfeiture of the estate
of the person attainted, to the disinheritance of his heirs,
or of those who would otherwise be his heirs. Thus innocent
children were made to suffer because of the offense of their
ancestor. When the Federal Constitution was framed, this was
felt to be a great hardship, and even rank injustice. For
this reason, it was ordained that no attainder of treason
should work corruption of blood or forfeiture, except during
the life of the person attainted." Wallach v. Van Riswick,
(1875) 92 U.S. 210.
(46) Mills v. Duryee (1813) 7 Cranch U.S. 481; Hampton v.
M'Connel (1818) 3 Wheat. U.S. 234; Mayhew v. Thatcher (1821)
6 Wheat U.S. 129; Darby v. Mayer, (1825) 10 Wheat. U.S. 465;
U.S. v. Amedy, (1826) 11 Wheat. U.S. 302; Caldwell v.
Carrington, (1835) 9 Pet. U.S. 86; M'Elmoyle v. Cohen (1830)
13 Pet. U.S. 312, Augusta Bunk v. Earle, (1839) 13 Pet. U.S.
519; Alabama State Bank v. Dalton, (1850) 9 Huw. U.S. 622;
D'Arey v. Ketchum (1850) 11 How. U.S. 165; Christmas v.
Russell, (1866) 5 Wall. U.S. 200; Green v. Van Buskirk,
(1868) 7 Wall. U.S. 130; Paul v. Virginia, (1868) 8 Wall.
U.S. 168; Board of Public Works v. Columbia Cullege (1873)
17 Wall. U.S. 521; Thompson v. Whitman (1873) 18 Wall. U.S.
457; Pennoyer v. Neff (1877) 95 U.S. 714; Bonaparte v.
Appeal Tax Ct.. (1882) 104 U.S. 692; Robertson v. Pickrell,
(1883) 100 U.S. 608; Brown v. Houston (1885) 114 U.S. 622;
Hanley v.. Donoghue, (1885) 116 U.S. 1; Renaud v. Abbott
(1886) 116 U.S. 277; Chicago, etc., R. Co. v. Wiggins Ferry
Co., (1887) 119 U.S. 615; Borer v. Chapman (1887) 110 U.S.
587; Cole v. Cunningham (1890) 133 U.S. 107; Blount v.
Walker (1890) 134 U.S. 607; Simmons v. Saul (1891) 138 U.S.
439; Reynolds v. Stockton (1891) 140 U.S. 254; Carpenter v.
Strange (189l) 141 U.S. 87; Huntington v. Attrill, (1892)
146 U.S. 657; Glenn v. Garth, (1893) 147 U.S. 360; Laing v.
Rigney, (1896) 160 U.S. 531; Chicago, etc., R. Co. v. Sturm,
(1890) 174 U.S. 710; Thormann v. Frame, (1900) 178 U.S. 350;
Hancock Nat. Bank v. Farnum, (1900) 176 U.S. 640; Clarke v.
Clarke, (1900) 178 U.S. 186; Wilkes County v. Coler, (1901)
180 U.S. 506; W. W. Cargill Co. v. Minnesota, (1901) 180
U.S. 452; Johnson v. New York L. Ins. Co., (1903) 187 U.S.
491; Andrews v. Andrews, (1903) 188 U.S. 14; Blackstone v.
Miller, (1903) 188 U.S. 180; Finney v. Guy (1903) 189 U.S.
335; Wabash R. Co. v. Flannigan, (1904) 192 U.S. 29; Germann
Sav., etc., Soc. v. Dormitzer, (1904) 192 U.S. 125; Wedding
v. Meyer, (1904) 192 U.S. 573.
(47) U.S. Bank v. Deveaux, (1809) 5 Cranch U.S. 61; Gassies v.
Ballon, (1832) 6 Pet. U.S. 761; Rhode Island v.
Massachusettts (1838) 12 Pet. U.S. 657; Augusta Bank v.
Earle (1839) 13 Pet. U.S. 519; Moore v. Illinois, (1852) 14
How. U.S. 13; Conner v. Elliott, (1855) 18 How. U.S. 591;
Dred Scott v. Sandford (1856) 19 How. U.S. 393; Crandall v.
Nevada (1867) 6 Wall. U.S. 35; Woodruff v. Parham, (1868) 8
Wall. U.S. 123; Paul v. Virginia (1868) 8 Wall. U.S. 168;
Downham v. Alexandria (1869) 10 Wall. U.S. 173; Liverpool
Ins. Co. v. Massachusetts (1870) 10 Wall. U.S. 566; Ward v.
Maryland, (1870) 12 Wall. U.S. 418; Slaughter-House Cases
(1872) 16 Wall. U.S. 36; Bradwell v. State, (1872) 18 Wall.
U.S. 130; Chemung Canal Bank v. Lowery, (1876) 93 U.S. 72;
McCready v. Virginia, (1876) 104 U.S. 391; Philadelphia Fire
Assoc. v. New York, (1886) 119 U.S. 110; Pembina Consol.
Silver Min., etc., Co. v. Pennsylvania (1888) 125 U.S. 181;
Kimmish v. Ball, (1889) 129 U.S. 217; Cole v. Cunningham,
(1890) 133 U.S. 107; Manchester v. Massachusetts, (1891) 139
U.S. 240; Pittsburg, etc., Coal Co. v. Bates, (1895) 156
U.S. 577; Vance v. W. A. Vandercock Co., (1898) 170 U.S.
438; Blake v. McClung, (1898) 172 U.S. 239; Williams v.
Fears, (1900) 179 U.S. 270; Travellers, Ins. Co. v.
Connecticut, (1902) 165 U.S. 364; Chadwick v. Kelley, (1903)
187 U.S. 540; Diamond Glue Co. v. U.S. Glue Co., (1903) 187
U.S. 611; Blackstone v. Miller, (1903) 188 U.S. 189; Anglo-
American Provision Co. v. Davis Provision Co., (1903) 191
U.S. 373.
"The Constitution of the United States declares that the
citizens of each State shall be entitled to all the
privileges and immunities of citizens in the several States.
And although these privileges and immunities, for greater
safety, are placed under the guardianship of the general
government, still the States may by their laws and in their
tribunals protect and enforce them. They have not only the
power, but it is a duty enjoined upon them by this provision
in the Constitution." Per Mr. Justice Taney, in Prigg v.
Pennsylvania (1842) 16 Pet. U.S. 629.
(48) Holmes v. Jennison, (1840) 14 Pet. U.S. 540; Kentucky v.
Dennison, (1860) 24 How. U.S. 66; Taylor v. Taintor, (1872)
16 Wall. U.S. 366; Carroll County v. Smith (1884) 111 U.S.
556; Ex p. Reggel (1885) 114 U.S. 642; Mahon v. Justice
(1888) 127 U.S. 700; Lascelles v. Georgia, (1893) 148 U.S.
637; Utter v. Franklin. (1899) 172 U.S. 416.
(49) Prigg v. Pennsylvania, (1842) 16 Pet. U.S. 639; Jones v. Van
Zandt, (1847) 6 How. U.S. 215; Strader v. Graham (1850) 10
How. U.S. 82, Moore v. Illinois (1852) 14 How. U.S. 13; Dred
Scott v. Sandford, (1856) 19 How. U.S. 393; Ableman v.
Booth, (1858) 21 How. U.S. 506.,
"Every State has an undoubted right to determine the status,
or domestic and social condition, of the persons domiciled
within its territory; except insofar as the powers of the
States in this respect are restrained, or duties and
obligations imposed on them, by the Constitution of the
United States." Strader v. Graham, (1850) 10 How.U.S. 93.
(50) Luther v. Borden. (1840) 7 How. U.S. 1; Texas v. White.
(1868) 7 Wall. U.S. 700; In re Duncan (1891) 139 U.S. 449;
Taylor v. Beckham, (1900) 178 U.S. 548.
(51) "It was one of the objections most seriously urged against
the new constitution by those who opposed its ratification
by the States, that it contained no formal Bill of Rights.
(Federalist. No.lxxxiv.) And the State of Virginia
accompanied her ratification by the recommendation of an
amendment embodying such a bill. (3 Elliot's Debates, 661.)
The feeling on this subject led to the adoption of the first
ten amendments to that instrument at one time, shortly after
the government, was organized. These are all designed to
operate as restraints on the general government, and most of
them for the protection of private rights of persons aud
property. Notwithstanding this reproach, however, there are
many provisions in the original instrument of this latter
character." Kring v. Missouri (1882) 107 U.S. 226.
(52) Terrett v. Taylor, (1815) 9 Cranch U.S. 43; Vidal v.
Philadelphia, (1844) 2 How. U.S. 127; Ex p. Garland, (1866)
4 Wall. U.S. 333; U.S. v. Cruikshank (1875) 92 U.S. 542;
Reynolds v. U.S. (1878) 98 U.S. 145; Spies v. Illinois
(1887) 123 U.S. 131; Davis v. Beason, (1890) 133 U.S. 333;
Eilenbecker v. Plymouth County, (1890) 134 U.S. 31; Church
of Jesus Christ v. U.S., (1890) 138 U.S. 1; In re Rapier
(1892) 143 U.S. 110; Horner v. U.S., (1892) 143 U.S. 207;
Bradfield v. Roberts (1899) 175 U.S. 291.
(53) "The right of the people peaceably to assemble for this
purpose of petitioning Congress for a redress of grievances,
or for anything else connected with the powers or the duties
of the national government, is an attribute of national
citizenship, and, as such, under the protection of, and
guaranteed by, the United States. The very idea of a
government, republican in form, implies a right on the part
of its citizens to meet peaceably for consultation in
respect to public affairs and to petition for a redress of
grievances." U.S. v. Cruikshank (1875) 92 U.S. 552.
(54) Presser v. Illinois (1886) 116 U.S. 252; Spies v. Illinois
(1887) 123 U.S. 131; Eilenbeeker v. Plymouth County, (1890)
134 U.S. 31.
"This is not a right granted by the Constitution. Neither is
it in any manner dependent upon that instrument for its
existence. The Second Amendment declares that it shall not
be infringed; but this, as has been seen, means no more than
that it shall not be infringed by Congress. This is one of
the amendments that has no other effect than to restrict the
powers of the national government, leaving the people to
look for their protection against any violation by their
fellow-citizens of the rights it recognizes, to what is
called, in The City of New York v. Miln, (1837) 11 Pet. U.S.
139, the powers which relate to merely municipal
legislation, or what was, perhaps, more properly called
internal police,' `not surrendered or restrained' by the
Constitution of the United States." U.S. v. Cruikshank,
(1875) 92 U.S. 553.
(55) Smith v. Maryland, (1855) 18 How. U.S. 71; Murray v. Hoboken
Land, etc., Co., (1855) 18 How. U.S. 272; Ex p. Milligan
(1866) 4 Wall. U.S. 2; Boyd v. U.S., (1886) 116 U.S. 616;
Spies v. Illinois (1887) 123 U.S. 131; Eilenbeeker v.
Plymouth County (1890) 134 U.S. 31; Fong Yue Ting v. U.S.,
(1893) 149 U.S. 608; Interstate Commerce Commission v.
Brimson, (1894) 154 U.S. 447; In re Chapman, (1897) 166 U.S.
661; Adams v. New York, (1904) 192 U.S. 585.
(56) The security intended to be guaranteed by the Fourth
Amendment against wrongful search and seizure is designed to
prevent violations of private security in person and
property and unlawful invasion of the sanctity of the home
of the citizen by officers of the law, acting under
legislative or judicial sanction, and to give remedy against
such usurpations when attempted. But the English and nearly
all of the American cases have declined to extend this
doctrine to the extent of excluding testimony which has been
obtained by such means, if it is otherwise competent." Adams
v. New York, (19O4) 192 U.S. 598.
(57) U.S. v. Perez (1824) 9 Wheat. U.S. 579; Barron v. Baltimore.
(1833) 7 Pet. U.S. 243; Fox v. Ohio (1847) 5 How. U.S. 410;
West River Bridge Co. v. Dix, (1848) 6 How. U.S. 507;
Mitchell v. Harmony (1851) 13 How. U.S. 115; Moore v.
Illinois (1852) 14 How. U.S. 13; Murray v. Hoboken Land,
etc., Co., (1855) 18 How. U.S. 272; Dynes v. Hoover, (1857)
20 How. U.S. 65; Withers v. Buckley, (1857) 20 How. U.S. 84;
Gilman v. Sheboygan (1862) 2 Black U.S. 510; Ex p. Milligan,
(1866) 4 Wall. U.S. 2; Twitchell v. Pennsylvania, (1868) 7
Wall. U.S. 321; Hepburn v. Griswold, (1869) 8 Wall. U.S.
603; Miller v. U.S., (1870) 11 Wall. U.S. 268; Legal Tender
Cases (1870) 12 Wall. U.S. 457; Pumpelly v. Green Bay, etc.,
Canal Co., (1871) 13 Wall. U.S. 166; Osborn v. Nicholson,
(187l) 13 Wall. U.S. 654; Ex p. Lange (1873) 18 Wall. U.S.
163; Kohl v. U.S., (1875) 91 U.S. 367; Davidson v. New
Orleans (1877) 96 U.S. 97; Sinking Fund Cases (1878) 99 U.S.
700; Langford v. U.S., (1879) 101 U.S. 341, Kelly v.
Pittsburgh, (1881) 104 U.S. 78; Ex p. Wall (1882) 107 U.S.
265; U.S. v. Jones (1883) 109 U.S. 513; U.S. v. Great Falls
Mfg. Co., (1884) 112 U.S. 645; Ex p. Wilson (1885) 114 U.S.
417; Boyd v. U.S., (1886) 116 U.S. 616; Mackin v. U.S.,
(1886) 117 U.S. 348; Ex p. Bain (1887) 121 U.S. 1; Parkinson
v. U.S., (1887) 121 U.S. 281; Spies v. Illinois, (1887) 123
U.S. 131; Callan v. Wilson (1888) 127 U.S. 540; U.S. v. De
Walt (1888) 128 U.S. 393; Manning v. French, (1890) 133 U.S.
186; Eilenbecker v. Plymouth County, (1890) 134 U.S. 31;
Louisville, etc. R. Co. v. Woodson (1890) 134 U.S. 614; In
re Ross, (1891) 140 U.S. 453; Counselman v. Hitchcock,
(1892) 142 U.S. 547; Simmons v. U.S. (1891) 142 U.S. 148;
Thorington v. Montgomery (1893) 147 U.S. 490; Monongahela
Navs Co. v. U.S., (1893) 148 U.S. 312; Fong Yue Ting v.
U.S., (1893) 149 U.S. 698; Lees v. U.S. (1893) 150 U.S. 476;
Marchant v. Pennsylvania R. Co., (1894) 153 U.S. 380;
Linford v. Ellison, (1894) 155 U.S. 503; Johnson v. Sayre,
(1895) 158 U.S. 100; Sweet v. Rechel (1895) 159 U.S. 380;
Brown v. Walker. (1896) 161 U.S. 591; Wong Wing v. U.S.,
(1996) 163 U.S. 228; Talton v. Mayes (1896) 163 U.S. 376;
Bauman v. Ross, (1897) 167 U.S. 648; Wilson v. Lambert,
(1898) 168 U.S. 611; U.S. v. Joint Traffic Assoc. (1898) 171
U.S. 505; Maxwell v. Dow (1900) 176 U.S. 581; Scranton v.
Wheeler, (1900) 170 U.S. 141; McDonald v. Massachusetts
(1901) 180 U.S. 311; Neely v. Henkel, (1901) 180 U.S. 109;
French v. Barber Asphalt Paving Co., (1901) 181 U.S. 324;
Wight v. Davidson, (1901)181 U.S. 371; Tonawanda v. Lyon
(1901) 181 U.S. 389; Capital City Dairy Co. v. Ohio (1902)
183 U.S. 238; Hanover Nat. Bank v. Moyses (1902) 186 U.S.
181; Dreyer v. Illinois (1902) 187 U.S. 71; Lone Wolf v.
Hitchcock (1903) 187 U.S. 553; U.S. v. Lynah (1903) 188 U.S.
445; Japanese Immigrant Case (1903) 189 U.S. 86; Hawaii v.
Mankichi (1903) 190 U.S. 197; Bedford v. U.S.. (1904) 192
U.S. 217; Buttfield v. Stranahan (1904) 192 U.S. 470; Adams
v. New York, (1904) 192 U.S. 585.
(58) See cases cited in note 2, supra.
(59) See cases cited in note 2, supra.
(60) See cases cited in note 2, supra.
(61) See cases cited in note 2, supra.
(62) U.S. v. Coolidge, (1816) 1 Wheat. U.S. 415; Ex p. Kearney,
(1822) 7 Wheat. U.S. 38; U.S. v. Mills, (1833) 7 Pet. U.S.
142; Barron v. Baltimore, (1833) 7 Pet. U.S. 243; Fox v.
Ohio, (1847) 5 how. U.S. 410; Withers v. Buckley, (1857) 20
How. U.S. 84; Ex p. Milligan, (1866) 4 Wall. U.S. 2;
Twitchell v. Pennsylvania (1868) 7 Wall. U.S. 321; Miller v.
U.S. (1870) 11 Wall. U.S. 268; U.S. v. Cook, (1872) 17 Wall.
U.S. 168; U.S. v. Cruikshank, (1875) 92 U.S. 542; Reynolds
v. U.S., (1878) 98 U.S. 145; Spies v. Illinois, (1887) 123
U.S. 131; Brooks v. Missouri, (1888) 124 U.S. 394; Callan v.
Wilson, (1898) 127 U.S. 540; Eelenbecker v. Plymouth County,
(1890) 134 U.S. 31; Jones v. U.S., (1890) 137 U.S. 202; Cook
v. U.S., (1891) 138 U.S. 157; In re Shibuya Jugiro, (1891)
140 U.S. 291; In re Ross (1891) 140 U.S. 453; Fong Yue Ting
v. U.S., (1893) 149 U.S. 698; Mattox v. U.S. (1895) 156 U.S.
237; Rosen v. U.S. (1896) 161 U.S. 29; U.S. v. Zucker,
(1896) 161 U.S. 475; Wong Wing v. U.S. (1896) 163 U.S. 228;
Thompson v. Utah, (1898) 170 U.S. 343; Maxwell v. Dow,
(1900) 176 U.S. 581; Motes v. U.S. (1900) 178 U.S. 458;
Fidelity, etc, Co. v. U.S.. (1902) 187 U.S. 315; Hawaii v.
Mankiche (1903) 190 U.S. 197.
(63) U.S. v. La Vengeance, (1796) 3 Dall. U.S. 297; Columbia Bank
v. Okely, (1819) 4 Wheat. U.S. 235; Parsons v. Bedford.
(1830) 3 Pet. U.S. 433; Livingston v. Moore, (1833) 7 Pet.
U.S. 469; Webster v. Reid, (1850) 11 How. U.S. 437;
Pennsylvania v. Wheeliag, etc., Bridge Co., (1851) 13 How.
U.S. 518; Justices v. Murray, (1869) 9 Wall. U.S. 274;
Edwards v. Elliott, (1874) 21 Wall. U.S. 532; Pearson v.
Yewdall, (1877) 95 U.S. 294; MeElrath v. U.S. (1880) 102
U.S. 426; Spies v. Illinois (1887) 123 U.S. 131; Arkansas
Valley Land. etc., Co. v. Mann (1889) 130 U.S. 69;
Eilenbecker v. Plymouth County. (1890) 134 U.S. 31;
Whitehead v. Shattuck, (1891), 138 U.S. 146; Scott v. Neely,
(1891) 140 U.S. 106; Cates v. Allen (1893) 149 U.S. 451;
Fong Yue Ting v. U.S., (1893) 149 U.S. 698; Coughran v.
Bigelow, (1896) 164 U.S. 301; Walker v. New Mexico, etc., R.
Co.. (1897) 165 U.S. 693; Chicago, etc., R. Co. v. Chicago
(1897) 166 U.S. 226; American Pub. Co. v. Fisher (1897) 166
U.S. 464; Fidelity, etc., Co. v. U.S. (1902) 187 U.S. 315.
(64) Sm ca"d cited in note 1, supra.
(65) Pervear v. Massachusetts (1866) 5 Wall. U.S. 475; Spies v.
Illinois (1887) 123 U.S. 131; Manning v. French, (1890) 133
U.S. 186; Eilenbecker v. Plymouth County, (1890) 134 U.S.
31; McElvaine v. Brush, (1891) 142 U.S. 155, O'Neili v.
Vermont, (1892) 144 U.S. 323; McDonald v. Massachussetts
(1901) 180 U.S. 311.
(66) Livingston v. Moore, (1833) 7 Pet. U.S. 469; Spies v.
Illinois (1887) 123 U.S. 131.
"This government is acknowledged by all to be one of
enumerated powers. The principle, that it can exercise only
the powers granted to it, would seem too apparent to have
required to be enforced by all those arguments which its
enlightened friends, while it was depending before the
people, found it necessary to urge. That principle is now
universally admitted. But the question respecting the extent
of the powers actually granted is perpetually arising, and
will probably continue to arise, as long as our system shall
exist." M'Culloch v. Maryland, (1819) 4 Wheat. U.S. 405.
(67) Chisholm v. Georgia. (1793) 2 Dall. U.S. 419; Hollingsworth
v. Virginia, (1798) 3 Dall. U.S. 378; Martin v. Hunter,
(1816) 1 Wheat. U.S. 304; M'Culloch v. Maryland. (1819) 4
Wheat. U.S. 316; Anderson v. Dunn, (1821) 6 Wheat U.S. 204;
Cohen v. Virginia (1821) 6 Wheat U.S. 264; Osborn v. U.S.
Bank (1824) 9 Wheat. U.S. 738; Buckner v. Finley, (1829) 2
Pet. U.S. 586; Ableman v. Booth, (1858) 21 How. U.S. 506;
Collector v. Day, (1870) 11 Wall. U.S. 113; Claffin v.
Houseman, (1876) 93 U.S. 130; Inman Steamship Co. v. Tinker,
(1876) 94 U.S. 238; U.S. v. Fox. (1876) 94 U.S. 315;
Tennessee v. Davis (1879) 100 U.S. 257; Spies v. Illinois,
(1887) 123 U.S. 131; Pollock v. Farmers' L & T. Co., (1895)
157 U.S. 429; Forsyth v. Hammond, (1897) 166 U, S. 506; St.
Anthony Falls Water Power Co. v. St. Paul Water Com'rs,
(1897) 168 U.S. 349; Missouri, etc., R. Co., v. Haber (1898)
169 U.S. 613; Hancock Mut. L Ins. Co. v. Warren, (1901) 181
U.S. 73; Kansas v. Colorado. 185 U.S. 125; Andrews v.
Andrews (1903) 188 U.S. 14; Church v. Kelsey, (1887) 121
U.S. 282; Ouachita Packet Co. v. Aiken, (1887) 127 U.S. 444;
Western Union Tel. Co. v. Pendleton. (1887) 122 U.S. 347;
Bowman v. Chicago, etc. R. Co.. (1888) 126 U.S. 465; Mahon
v. Justice (1888) 127 U.S. 700; Leisy v. Hardin (1890) 135
U.S. 100; Manchester v. Massachusetts (1891) 139 U.S. 240.
"The perpetuity and indissolubility of the Union by no means
implies the loss of distinct and individual existence, or of
the right of self-government by the States. Under the
Articles of Confederation each State retained its
sovereignty, freedom, and independence, and every power,
jurisdiction, and right not expressly delegated to the
United States. Under the Constitution, though the powers of
the States were much restricted, still, all powers not
delegated to the United States, nor prohibited to the
States, are reserved to the States respectively, or to the
people.... Not only, therefore, can there be no loss of
separate and independent autonomy to the States, through
their union under the Constitution, but it may be not
unreasonably said that the preservation of the States, and
the maintenance of their governments, are as much within the
design and care of the constitution as the preservation of
the Union and the maintenance of the national government.
The Constitution, in all its provisions, looks to an
indestructible Union, composed of indestructible States."
Texas v. White, (1868) 7 Wall. U.S. 700.
(68) Ohio v. Dollison. (1904) 194 U.S. 445.
"That the first ten articles of amendment were not intended
to limit the powers of the State governments in respect to
their own people, but to operate on the national government
alone, was decided more than a half century ago, and that
decision has been steadily adhered to since." Spies v.
Illinois (1887) 123 U.S. 166.
(69) "Apportionment is an operation on States, and involves
valuations and assessments which are arbitrary, and should
not be resorted to but in case of necessity. Uniformity is
an instant operation on individuals, without the
intervention of assessments, or any regard to States, and is
at once easy, certain, and efficacious." Per Patterson, J.,
in Hylton v. U.S. (1794) 3 Dall. U.S. 180.
(70) (1895) 157 U.S. 429, 158 U.S. 601.
(71) (1880) 103 U.S. 168.
(72) (1824) 9 Wheat. U.S. 1.
(73) (1824) 9 Wheat. U.S. 1.
(74) Northern Securities Co. v. U.S. (1904) 193 U.S. 197.
(75) The power conferred by this provision of the Constitution
"is the power to regulate; that is, to prescribe the rule by
which commerce is to be governed. This power, like all
others vested in Congress, is complete in itself, may be
exercised to its utmost extent, and acknowledges no
limitations, other than are prescribed in the Constitution."
Per Mr. Chief Justice Marshall, in Gibbons v. Ogden (1824) 9
Wheat. U.S. 197.
(76) "The power to regulate commerce covers a wide field, and
embraces a great variety of subjects. Some of these
subjects call for uniform rules and national legislation;
others can be best regulated by rules and provisions
suggested by the varying circumstances of different
localities, and limited in their operation to such
localities respectively. To this extent the power to
regulate commerce may be exercised by the States. Whether
the power in any given case is vested exclusively in the
general government depends upon the nature of the subject to
be regulated." Gilman v. Philadelphia (1865) 3 Wall. U.S.
726. See also Cooley v. Board of Wardens (1851) 12 How. U.S.
319. Exp. McNiel (1871) 13 Wall U.S. 240; Mobile County v.
Kimball (1881) 102 U.S. 691; Walling v. Michigan (1886) 116
U.S. 455; Robbins v. Shelby County Taxing Dist. (1887) 120
U.S. 492.
(77) Northern Securities Co. v. U. S., (1904) 193 U. S. 197.
(78) McCready v. Virginia (1876) 94 U.S. 391.
(79) Geer v. Connecticut (1896) 161 U.S. 519.
(80) Lawton v. Steele (1894) 152 U.S. 133.
(81) 3 Bl. Com. 129.
(82) Ex p. Yerger, (1868) 8 Wall. U.S. 95.
(83) n re Neagle, (1890), 136 U. S. 1; In re Frederich. (1893)
140 U.S. 70.
(84) Ableman v. Booth (1858) 21 How. U.D. 506; Tarble's Case
(187l) 13 Wall. U.S. 397.
(85) The great and leading intent of the Constitution and the law
must be kept constantly in view upon the examination of
every question of construction. That intent, in respect to
the writ of habeas corpus, is manifest. It is that every
citizen may be protected by judicial action from unlawful
imprisonment. To that end the Act of 1789 provided that
every court of the United State should have power to issue
the writ. The jurisdiction thus given in law to the circuit
and district courts is original; that given by the
Constitution and the law to this court in appellate. Given
in general terms, it must necessarily extend to all cases to
which the judicial power of the United States extends, other
than those expressly excepted from it." Ex p. Yerger, (1868)
8 Wall. U.S. 101.
(86) (1866) 4 Wall. (U.S.) 2.
(87) "So much importance did the convention attach to it [the
prohibition against the passage of any ex post facto law],
that it is found twice in the Constitution, first as a
restraint upon the power of the general government, and
afterwards as a limitation upon the legislative power of the
States." Kring v. Missouri, (1882) 107 U.S. 227.
"All the restrictions contained in the Constitution of the
United States on the power of the State legislatures were
provided in favor of the authority of the Federal
government. The prohibition against their making any ex post
facto laws was introduced for greater caution, and very
probably arose from the knowledge that, the Parliament of
Great Britain claimed and exercised a power to pass such
laws, under the denomination of bills of attainder. or bills
of pains and penalties." Calder v. Bull (1798) 3 Dall. U.S.
386.
(88) Cummings v. Missouri. (1866) 4 Wall. U.S. 323.
(89) (1866) 4 Wall. U.S. 277.
(90) (1866) 4 Wall. U.S. 333.
(91) Fletcher v. Peck (1810) 6 Cranch U.S. 138.
"Laws of this character are oppressive, unjust, and
tyrannical; and, as such, are condemned by the universal
sentence of civilized man. The injustice and tyranny which
characterizes ex Post facto laws consist altogether in their
retrospective operation, with applied with equal force,
although not exclusively, to bills of attainder." Ogden v.
Saunders, (1827) 12 Wheat. U.S. 266.
(92) Carpenter v. Pennsylvania, (1854) 17 How. U.S. 456.
(93) "As the clause was first adopted, the words concerning
contracts were not in it, because it was supposed that the
phrase,`ex Post facto law' included laws concerning
contracts as well as others. But it was ascertained before
the completion of the instrument that this was a phrase
which, in English jurisprudence, had acquired a
signification limited to the criminal law, and the words `or
law impairing the obligation of contracts' were added to
give security to rights resting in contracts. 2 Bancroft's
History of the Constitution, 213." Kring v. Missouri, (1882)
107 U. S. 227.
"The evil which this inhibition on the States was intended
to prevent is found in the history of our Revolution. By
repeated acts of legislation in the different States, during
that eventful period, the obligation of contracts was
impaired. The time and mode of payment were altered by law;
and so far was this interference of legislation carried,
that confidence between man and man was well-nigh destroyed.
Those proceedings grew out of the paper system of that day;
and the injuries which they inflicted were deeply felt in
the country at the time the Constitution was adopted. The
provision was designed to prevent the States from following
the precedent of legislation so demoralizing in its effects,
and so destructive to the commercial prosperity of a
country." Per Mr. Justice McLean, in Charles River Bridge v.
Warren Bridge (1837) 11 Pet. U.S. 573. See also Edwards v.
Kearzey (1877) 96 U.S. 604, et seq.
(94) (1837) 11 Pet. U.S. 420.
(95) "It is competent for the States to change the form of the
remedy, or to modify it otherwise, as they may see fit,
provided no substantial right secured by the contract is
thereby impaired. No attempt has been made to fix definitely
the line between alterations of the remedy which are to be
deemed legitimate, and those which, under the form of
modifying the remedy, impair substantial rights. Every case
must be determined upon its own circumstances." Von Hoffman
v. Quincy. (1866) 4 Wall. U.S. 553.
(96) U. S. Bank v. Devereaux, (1809) 5 Cranch U.S. 61.
(97) Gassies v. Ballon, (1832) 6 Pet. U.S. 761.
(98) Augusta Bank v. Earle, (1839) 13 Pet. U.S. 519; Lafayette
Ins. Co. v. French, (1855) 18 How. U.S. 404, Ducat v.
Chicago (1870) 10 Wall. U.S. 410; Liverpool Ins. Co. v.
Massachusetts (1870) 10 Wall. U.S. 566; Paul v. Virginia,
(1869) 8 Wall. U.S. 168; Philadelphia Fire Assoc v. New
York, (1886) 110 U.S. 110; Pembina Consol. Silver Min., etc.
Co. v. Pennsylvania (1888) 125 U.S. 181; Orient Ins. Co. v.
Daggs, (1899) 172 U.S. 561.
"A grant of corporate existence is a grant of special
privileges to the corporators, enabling them to act for
certain designated purposes as a single individual, and
exempting them (unless otherwise especially provided) from
individual liability. The corporation, being the mere
creation of local law, can have no legal existence beyond
the limits of the sovereignty where created. . . . It must
dwell in the place of its creation, and cannot migrate to
another sovereignty." Paul v. Virginia, (1868) 8 Wall. U.S.
181.
(99) Anglo-American Provision Co. v. Davis Provision Co., (1903)
191 U.S.373.
(100) Home Ins. Co. v. Morse, (1874) 20 Wall. U.S. 445; Doyle v.
Continental Ins. Co., (1876) 94 U.S. 635; Barron v.
Burnside, (1887) 121 U. S. 186.
"The Constitution of the United States declares that the
judicial power of the United States shall extend to all
cases in law and equity arising under that Constitution, the
laws of the United States, and to the treaties made or which
shall be made under their authority. . . . to controversies
between a State and citizens of another State, and between
citizens of different States.. The jurisdiction of the
Federal courts, under this clause of the Constitution,
depends upon and is regulated by the laws of the United
States. State legislation cannot confer jurisdiction upon
the federal courts, nor can it limit or restrict the
authority given by Congress in pursuance of the
Constitution." Home Ins. Co. u. Morse, (1874) 120 Wall. U.S.
463.
(101) Blake v. McClung, (1898) 172 U.S. 230, where the court
said: "Although, generally speaking, the State has the power
to prescribe the conditions upon which foreign corporations
may enter its territory for purposes of business, such a
power cannot be exerted with the effect of defeating or
impairing rights secured to citizens of the several States
by the supreme law of the land."
(102) Pembina Consol. Silver Min., etc., Co. v. Pennsylvuaia
(1888) 125 U.S. 181.
(103) Ward v. Maryland, (1870) 12 Wall. U.S. 419; Guy v.
Baltimore, (1879) 100 U. S. 434; Walling v. Michigan. (1886)
116 U. S. 446.
"No state can, consistently with the Federal Constitution,
impose upon the products of other States, brought therein
for sale or use, or upon citizens because engaged in the
sale therein. or the transportation thereto, of the products
of other States, more onerous public burdens or taxes than
it imposes upon the like products of its own territory. It
this were not so, it is easy to perceive how the power of
Congress to regulate commerce with foreign nations and among
the several States could be practically annulled, and the
equality of commercial privileges secured by the Federal
Constitution to citizens of the several States be materially
abridged and impaired." Guy v. Baltimore (1979) 100 U.S.
439.
"Grant that the States may impose discriminating taxes
against the citizens of other States, and it will soon be
found that the power conferred upon Congress to regulate
interstate commerce is of no value, as the unrestricted
power of the States to tax will prove to be more efficacious
to promote inequality than any regulations which Congress
can pass to preserve the equality of right contemplated by
the Constitution among the citizens of the several States.
Excise taxes, it is everywhere conceded, may be imposed by
the States, if not in any sense discriminating; but it
should not be forgotten that the people of the several
States live under one common Constitution, which was
ordained to establish justice, and which, with the laws of
Congress, and the treaties made by the proper authority, is
the supreme law of the land; and that that supreme law
requires equality of burden, and forbids discrimination in
State taxation when the power is applied to the citizens of
other States. Inequality of burden, "well as the want of
uniformity in commercial regulations, was one of the
grievances of the citizens under the Confederation; and the
now Constitution was adopted, among other things, to remedy
those defects in the prior system." Ward v. Maryland. (1870)
12 Wall. U.S. 430.
(104) Corson v. Maryland (1887) 120 U.S. 502.
(105) Conner v. Elliott. (1885) 18 How. U.S. 691.
"According to the express words aud clear meaning of this
clause, no privileges are secured by it, except those which
belong to citizenship. Rights, attached by the law to
contracts by reason of the place where such contracts are
made or executed, wholly irrespective of the citizenship of
the parties to those contracts, cannot be deemed `privileges
of a citizen,' within the meaning of the Constitution."
Conner v. Elliott, (1855) 18 How. U.S. 593.
(106) Travelers Ins. Co. v. Connecticut, (1902) 185 U.S. 364. See
also Eldridge v. Trezevant. (1896) 160 U.S. 452.
In passing upon the constitutionality of tax laws, the court
"can only consider the legislation that has been had, and
determine whether or no its necessary operation results in
an unjust discrimination between the parties charged with
its burdens. It is enough that the State has secured a
reasonably fair distribution of burdens, and that no
intentional discrimination has been made against non-
residents..... Perfect equality aud perfect uniformity of
taxation as regards individuals or corporations. or the
different classes of property subject to taxation, is a
dream unrealized." Travellers Ins. Co. v. Connecticut.
(1902) 185 U.S. 364.
(107) Chemung Canal Bank v. Lowery, (1876) 93 U.S. 72.
(108) Slaughter-House Cases (1872) 16 Wall. U.S. 36.
(109) Kimmish v. Ball, (1889) 120 U.S. 217.
(110) Reid v. Colorado, (1902) 187 U.S. 137.
(111) (1901) 181 U.S. 108.
(112) McCready v. Virginia, (1878) 94 U.S. 301; Geer v.
Connecticut (1806) 161 U. S. 519; Manchester v.
Massachusetts (1891) 139 U.S. 240; Lawton v. Steele, (1804)
152 U.S. 133.
An appropriation by the State of "its tidal waters and their
beds to be used by its people as a common for taking and
cultivating fish, so far as it may be done without
obstructing navigation,... is in fact nothing more than a
regulation of the use by the people of their common
property. The right which the people of the State thus
acquire comes not from their citizenship alone, but from
their citizenship and property combined. It is, in fact, a
property right, and not a mere privilege or immunity of
citizenship." McCready v. Virginia (1876) 94 U.S. 395.
(113) Holmes v. Jennison, (1840) 14 Pet. U.S. 540.
(114) Kentucky v. Dennison, (1860) 24 How. U.S. 66.
(115) Ex p. Reggel, (1885) 114 U.S. 642.
"Looking . . . to the words of the Constitution - to the
obvious policy and necessity of this provision to preserve
harmony between States, and order and law within their
respective borders, and to its early adoption by the
colonies, and then by the confederated States, whose mutual
interest it was to give each other aid and support whenever
it was needed - the conclusion is irresistible, that this
compact engrafted in the Constitution included, and was
intended to include, every offense made punishable by law of
the State in which it was committed, and that it gives the
right to the executive authority of the State to demand the
fugitive from the executive authority of the State in which
he is found; that the right given to `demand' implies that
it is an absolute right; and it follows that there must be a
correlative obligation to deliver, without any reference to
the character of the crime charged, or to the policy or laws
of the State to which the fugitive has fled." Kentucky v.
Dennison (1860) 24 How. U.S. 103.
(116) Mahon v. Justice, (1888) 127 U. S. 700.
(117) Lascelles v. Georgia, ( 1893) 148 U. S. 537; Roberts v.
Reilly, (1885) 116 U. S. 80; 12 Am. and Eng. Encyc. of Law
(2d ed.) 606.
"It is settled by the decisions of this court that, except
in the case of a fugitive surrendered by a foreign
government, there is nothing in the Constitution, treaties
or laws of the United States which exempts an offender,
brought before the courts of a State for an offence against
its laws, from trial and punishment, even though brought
from another State by unlawful violence, or by abuse of
legal process." Lascelles v. Georgia, (1893) 148 U. S. 543.
(118) U.S. v. Rauscher, (1886) 119 U. S. 407.
(119) People v. Hyatt, (1902) 72 N.Y. 170, and cases cited
(120) (186O) 24 How. U.S. 103.
(121) Pearce v. Texas, (1894) 155 U. S. 311.
(122) Luther v. Borden, (1849) 7 How. U.S. 1.
"Under this article of the Constitution it rests with
Congress to decide what government is the established one in
a State. For the United States guarantee to each State a
republican government, Congress must necessarily decide what
government is established in the State before it can
determine whether it is republican or not. And when the
senators and representatives of a State are admitted into
the councils of the Union, the authority of the government
under which they are appointed, as well as its republican
character, is recognized by the proper constitutional
authority. And its decision is binding on every other
department of the government, and could not be questioned in
a judicial tribunal... So too, as relates to the clause in
the above-mentioned article of the Constitution, providing
for cases of domestic violence. It rested with Congress,
too, to determine upon the means proper to be adopted to
fulfil this guarantee. They might, if they had deemed it
most advisable to do so, have placed it in the power of a
court to decide when the contingency had happened which
required the Federal government to interfere. But Congress
thought otherwise, and no doubt wisely; and by the Act of
February 28, 1795,...the power of deciding whether the
exigency had arisen upon which the government of the United
States is bound to interfere, is given to the President."
Luther v. Borden (1849) 7How. U.S. 1.
(123) Texas v. White, (1868) 7 Wall. U.S. 700.
(124) In re Duncan (1891) 139 U. S. 449.
(125) Taylor v. Beckham, (1900) 178 U. S. 548.
(126) Kentucky v. Dennison, (1860) 24 How. U.S. 103.
(127) Williams v. Mississippi (1898) 170 U. S. 213; Green v.
Mills. (C. C. A. 1895) 69 Fed. Rep. 862, 159 U.S. 651; Giles
v. Harris (1903) 189 U. S. 486.
(128) Vidal w. Philadelphia (1844) 2 How. U.S. 198.
(129) For an interesting account of the reasons leading to the
adoption of this provision and the manner of its adoption,
see Reynolds v. U. S., (1878) 98 U. S. 162-194.
"The oppressive measures adopted, and the cruelties and
punishments inflicted by the governments of Europe for many
ages, to compel parties to conform, in their religious
beliefs and modes of worship, to the views of the most
numerous sect, and the folly of attempting in that way to
control the mental operations of persons, and enforce an
outward conformity to a prescribed standard, led to the
adoption of the amendment in question. It was never intended
or supposed that the amendment could be invoked as a
protection against legislation for the punishment of acts
inimical to the peace, good order and morale of society."
Davis v. Beason, (1890) 133 U.S. 342.
(130) Terrett v. Taylor (1815) 9 Cranch U.S. 43.
(131) Reynolds v. U.S. (1878) 98 U.S. 145.
By the provision against any law of Congress respecting an
establishment of religion, or prohibiting the very exercise
thereof, or abridging the freedom of speech or of the press,
"Congress was deprived of all legislative power over mere
opinion, but was left free to reach actions which were in
violation of social duties, or subversive of good order."
Reynolds v. U.S. (1878) 98 U.S. 164.
(132) Davis v. Beason, (1890) 133 U.S. 333; Church of Jesus
Christ v. U. S., (1890) 136 U.S. 1.
(133) Bradfield v. Roberts, (1899) 175 U. S. 291.
(134) Ex p. Vallandigham, (1863) 1 Wall. U.S. 243.
(135) U. S. v. Williams (1904) 194 U. S. 270, where the court
said: "We are not to be understood as deprecating the vital
importance of freedom of speech and of the press, or as
suggesting limitations on the spirit of liberty, in itself
unconquerable, but this case does not involve those
considerations. The flaming brand which guards the realm
where no human government is needed still bars the entrance;
and as long as human governments endure they cannot be
denied the power of self-preservation.
"In incorporating these principles (the first ten amendments
to the Constitution) into the fundamental law, there was no
intention of disregarding the exceptions, which continued to
be recognized as if they had been formally expressed. Thus
the freedom of speech and of the press (Article I) does not
permit the publication of libels, blasphemous or indecent
articles, or other publications injurious to public morals
or private reputation." Robertson v. Baldwin (1897) 165 U.S.
281.
(136) "It is well understood, and received as a commentary on
this provision for the liberty of the press, that it was
intended to prevent all such previous restraints upon
publications as had been practiced by other governments, and
in early times here, to stifle the efforts of patriots
towards enlightening their fellow subjects upon their rights
and the duties of rulers. The liberty of the press was to be
unrestrained, but he who used it was to be responsible in
case of its abuse; like the right to keep fire arms, which
does not protect him who uses them for annoyance or
destruction." Per Parker, C.J., in Com. v. Blanding, (1825)
3 Pick. (Mass.) 314.
(137) Marlin Fire Arms Co. v. Shields, (1902) 171 N. Y. 384, and
cases cited.
(138) Ohio v. Dollison, (1904) 194 U. S. 446.
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John S. Wise