THE

CONSTITUTION

OF THE

UNITED STATES.

A CRITICAL DISCUSSION OF ITS GENESIS, DEVELOPMENT, AND INTERPRETATION.

BY

JOHN RANDOLPH TUCKER, LL.D.,

LATE PROFESSOR OF CONSTITUTIONAL AND INTERNATIONAL LAW AND EQUITY, WASHINGTON AND LEE UNIVERSITY.

EDITED BY

HENRY ST. GEORGE TUCKER,

PROFESSOR OF CONSTITUTIONAL AND INTERNATIONAL LAW AND EQUITY IN WASHINGTON AND LEE UNIVERSITY.

VOLUME I.

CHICAGO: CALLAGHAN & CO.

1899.

COPYRIGHT, 1899,

BY CALLAGHAN & CO.

ADOPTING THE EXPRESSED INTENTION OF THE AUTHOR

THIS BOOK IS DEDICATED TO THE MEMORY OF HIS FATHER,

JUDGE HENRY ST. GEORGE TUCKER,

MEMBER OF CONGRESS, CHANCELLOR, AUTHOR, PRESIDENT

OF THE COURT OF APPEALS OF VIRGINIA, PROFESSOR

OF LAW IN THE UNIVERSITY OF VIRGINIA.

UPON WHOSE TOMB AT WINCHESTER, VIRGINIA, THE HAND OF FRIENDSHIP HAS INSCRIBED THESE WORDS:

IN MEMORY OF HENRY ST. GEORGE TUCKER, PRESIDENT OF THE COURT OF APPEALS.

LEARNED WITHOUT PEDANTRY: GRAVE WITHOUT AUSTERITY: CHEERFUL WITHOUT FRIVOLITY: GENTLE WITHOUT WEAKNESS: MEEK BUT UNBENDING: RIGID IN MORALS, YET INDULGENT TO ALL FAULTS

BUT HIS OWN. THE ELEMENTS OF GOODNESS WERE IN HIM COMBINED AND HARMONIZED IN A CERTAIN MAJESTIC PLAINNESS OF SENSE AND HONOR, WHICH OFFENDED NO MAN'S SELF-LOVE, AND COMMANDED THE RESPECT, CONFIDENCE AND AFFECTION OF ALL.

A FAITHFUL HUSBAND: A KIND AND PRUDENT FATHER: A GENTLE MASTER: A STEADFAST FRIEND:

AN ABLE AND DILIGENT PUBLIC OFFICER.

He lived without reproach And died without an enemy.

STATE JOURNAL PRINTING COMPANY,

PRINTERS AND STEREOTYPERS,

MADISON, WIS.

PREFACE.

John Randolph Tucker was born at Winchester, Virginia, on the 24th of December, 1823, and died at Lexington, Virginia, on the 13th of February, 1897. He was the son of Henry St. George Tucker, President of the Court of Appeals of Virginia, and grandson of St. George Tucker, also a member of that court, and who was the author of "Tucker's Blackstone," the first commentary on the Constitution of the United States. During a long and active professional career, the author served for eight years as Attorney-General of Virginia and for twelve years as a Representative in Congress, during four years of which service he was Chairman of the Judiciary Committee of the House. From early life a close student of the Constitution and of the constitutional history of the United States, he had long cherished a purpose to write a commentary on the Constitution. His eminent public career brought him into living contact with many great questions on which he had read and thought deeply; and on his retirement from Congress in 1887 he hoped to take up his long-meditated work. The exaction of professional labors, to which were added from the year 1889 the re-assumed duties of the Chair of Constitutional and International Law, and Equity in Washington and Lee University, delayed the beginning of systematic work until the autumn of 1895, and his death in February, 1897, has, unfortunately, devolved upon me the task of carrying through

the press the manuscript which he left. This I have cheerfully assumed, not only from a sense of filial duty, but in obedience to his wish expressed but a few weeks before his death.

The author never revised the manuscript, which was left as written out from the notes of the stenographer to whom it was dictated. The transmission of ideas through an amanuensis, and the translation of stenographic symbols into English, must necessarily, at times, be at the expense of accuracy of expression and style, and I cannot hope to have freed the original from errors necessarily incident to such a mode of composition. My purpose has been at all times to preserve the original just as it was expressed by the author, rather than to attempt to correct any supposed blemishes of style or occasional obscurities of expression, or to change any colloquialisms more fitted for the lecture-room or the hustings than for the dignified pages of refined commentaries, preferring to retain such rather than incur the danger, by change, of imparting to any passage a meaning different from that which was intended.

When the Constitution proper is reached, it is treated consecutively, section by section, beginning with the Preamble and concluding with the Amendments; and wherever constructions at variance with those advanced by the author have been given to any clause by authors or judges, the views of such authors and the opinions of the judges bearing upon the decision are often given at length.

Clause 1 of section 4, article I, of the Constitution, the Fifteenth Amendment, and the second, third, fourth and fifth sections of the Fourteenth Amendment, are not treated in these pages, as the end came before they were reached.

The idea of supplying these omissions has naturally occurred to me, and I have not been free from doubt as to the propriety of publishing a work which was incomplete in these particulars. My doubts, however, have been resolved in favor of publishing the manuscript as I received it, for the reason that the omitted sections, in the minds of many, would not be considered of much practical value, in view of the adjudications of the courts; and especially for the reason that I felt that to supply them by the hand of any one other than the author, however well or however conformably to his well-known views such work might be done, would surely tend to weaken the force of the book.

Many valuable suggestions, in the course of the preparation of the work, have been freely given me by President Wm. L. Wilson, and I have been relieved of the burden of the preparation of the table of cases by Mr. E. Morgan Pendleton, of Lexington, Virginia, and have been the recipient of other valuable aid from him. To Mr. H. Parker Willis, my colleague in the Faculty of Washington and Lee University, my obligations are chiefly due for his intelligent suggestions and untiring labors, so freely given, embracing the entire preparation of the work, including the Index — the latter being entirely the work of his hands.

I cannot hope that this work which is now given to the public will be free from criticism, or that the position of the author on all subjects discussed will be accepted without dissent. The book is an expression of the views of the author, not merely his intellectual opinions, but his deep convictions, in the consistent exercise of which he lived and in the faith of which he died; and neither the dissent of friendship, nor the storm of popular indignation, nor yet the hope

of political preferment, ever shook his unswerving devotion to them. He religiously believed that the maintenance of these principles was necessary to the stability and preservation of the Union and the happiness and prosperity of the people, and that their rejection would as certainly result in tyranny, despotism and ultimate dissolution.

H. ST. GEORGE TUCKER. WASHINGTON AND LEE UNIVERSITY, LEXINGTON, VA., April, 1899.

CONTENTS.

VOLUME I.

CHAPTER I.

Pages.

INTRODUCTION.................1-56

Body-politic and Sovereignty defined, 1, 2. Relation of the Individual to the Body-politic, 3-11. Relation of Man to Society, 11. Limitation of the power of government over man, 12, 13. Government trustee for man, and man trustee of certain powers for his Creator, 14-18. Origin of Society and relations of individuals thereto, 19-23. Social liberty preferable to isolate liberty, 24, 25. Jus and Lex distinguished, 25. Jural rights in persona and in re attached to "social liberty," 26-34. Jural rights of man cannot be rightfully surrendered, 34, 35. Early society based on the patria potestas, 36-38. Why man sometimes acquiesces in tyranny, 38-41. Acceptance of the de facto social order as initial point necessary to inaugurate revolution, 41-44 Effect of Christianity on political philosophy, 41 46. Theory of the "Social Compact," 46-49. Uses of de facto government in effecting reform, 49-56.

CHAPTER II.

SOURCE OF SOVEREIGNTY AND POWER.........57-74

Force needful for control of man consists of two factors, 58, 59. The relation of man to government, society, etc., 59, 60. Sovereignty and governmental powers distinguished, 60-66. Subordination of governmental powers to the Constitution, the foundation of American constitutional law, 66-68. Constitutions, how formed and adopted, 68-73. Division of powers of government, 73, 74

CHAPTER III.

THE LIMIT OF GOVERNMENTAL POWERS........75-106

Scope of legislative powers, 75, 76. Privilege and Monopoly defined, 76-80. Polity of Individualism and of Paternalism, 80-85. How developed in ancient world. 80-88. Right of suffrage, a misnomer, 88, 89. Representation and taxation correlated as power

and right, 89-91. How affected by heterogeneous elements in the Body-politic, 91-93. How protect interests of minority against majority, 93-103. Historic origin of this principle traced, 103-106.

CHAPTER IV.

ORIGIN OF ENGLISH INSTITUTIONS.........107-177

The Aryan race and its offspring, 107, 108. Greeks, Romans and Teutonic races, 109-112. The Saxons, and the development of their institutions, 112-117. The Norman Conquest and its effect on Saxon institutions from William I. to King John, 117-124. Thirteenth century, the vestibule of the English Constitution, 124. Edward I., the English Justinian, 124, 125. The Commons as a separate body, 125, 120. "De Tallagio non Concedendo," "De donis," "Quia emptores terrarum," 126. John Wycliffe, 128, 129. Beginning of modern history, Henry VII., 129-132. Position of Henry VIII. as affecting the Reformation, 132-139. Effect of Mary's reign and that of James I. upon the Reformation, 139-141. Culmination of struggle under Charles I., his death, and the protectorate of Cromwell, 142-146. Flight of James II. and Convention Parliament, 147-151. Epitome of the causes for the Revolution stated in Declaration of Rights, 151-153. Reform bill of 1832, 153, 154. Analysis of constitutional monarchy of England, 155-159. The two Houses of Parliament, 159-162. The power of the Crown, 162-170. Conservative influences in the British government which check the radical tendencies of the House of Commons, 170-176. Estimate of British Constitution, 176, 177.

CHAPTER V.

AMERICAN CONSTITUTIONAL DEVELOPMENT......178-324

Two schools of thought on the relation of the States to the Union, 178, 179. Five important eras in American Constitutional development, 179. The Colonial Era, from 1607 to September 5, 1774, 179-203. The Continental Congressional Era, from September 5, 1774, to March 1, 1781, 203-239. The Confederation Era, from March 1, 1781, to March 4, 1789, 239-252. The Constitutional Era, from March 4, 1789, to 1861, 252-324 Who ordained the Constitution, and what are the relations of the States to the Union, 256-318.

CHAPTER VI.

Two IMPORTANT COMPROMISES IN THE CONSTITUTION OP THE

UNITED STATES..............325-337

The two rival plans submitted to the convention, 326, 327. The first compromise, 327-332. The second compromise, 332-337.

CHAPTER VII.

Pages. THE CONSTITUTION AS MODIFIED BY THE CIVIL WAR ... 338-348

Three theories as to the right of secession, 338, 339. Judicial view of effect of the Civil War, 340. Effect of thirteenth, fourteenth and fifteenth amendments upon the constitutional relations of the States to the government of the United States, 341-348.

CHAPTER VIII

THE CONSTITUTION OF THE UNITED STATES......349-380

Method of arrangement, 349. Principles of interpretation, 350-364. Canons of construction, 365-380. Construction of the words "necessary and proper," 366-375. The Constitution the supreme law of the land, 375-380.

CHAPTER IX.

THE LEGISLATIVE DEPARTMENT..........381-425

The preamble of the Constitution, 381-389. The three departments of the Federal government, 389-392. The Legislative department, 392. Exclusive investiture of all legislative powers in Congress, 392. Members of House of Representatives chosen how; by whom? 393, 394 Who may be a member of, 394, 395. Representatives and direct taxes apportioned how, 395, 396. Vacancies in House of Representatives, how filled, 398, 399. Members of the Senate chosen how; by whom, 400-403. Vacancies in, how filled, 403, 404 Qualifications for Senators, 405, 406. Duties of the Vice-President, 406, 407. Power to try all impeachments rests with the Senate, 408-412. Who subject to impeachment, 412-416. What offenses impeachable, 416-423. Mode of practice in cases of, 423-425.

CHAPTER X.

THE LEGISLATIVE DEPARTMENT (continued)......426-518

Congress, when to assemble, 426. What necessary to constitute a quorum of each body, 427-433. What power in either body, without the concurrence of the other, to adjourn, 433, 434. Power of House over witnesses and intruders upon its deliberations, 434-437. Members of Congress privileged from arrest, 438-440. Their freedom of speech in debate, 440, 441. Restriction upon their power of holding office, 442-446. All bills for raising revenue must originate in the House, 446-452. The veto power; its purposes, 452-456. The powers of Congress, 456. To lay and collect taxes, 457-459. Duties, imposts, excises, defined, 459-461. Direct taxes to be in proportion to population, etc., 461-464. The

tax power in the United States not exclusive of State power on same subjects, 466-468. The words "to pay the debts," etc., do not constitute a substantive grant of power, 470-477. Views of Madison and Hamilton on the words "common defense and general welfare," 477-492. Bounties on products — Municipal aid to private enterprises, 493-497. Tax power not to be used for other than revenue purposes, 497-508. To borrow money on the credit of the United States, 508-512. To coin money and regulate the value thereof, 512-516, 563. To charter a bank, 516-518.

VOLUME II. CHAPTER X — CONTINUED.

THE LEGISLATIVE DEPARTMENT (continued) ......519-666

To regulate commerce, etc., 519, 558. To "establish a uniform rule of naturalization," 558, 559. To control bankruptcy, 559-563. To punish counterfeiting, 564, 565. To establish post-offices, etc. 565-572. Power over copyrights and patents, 572, 573. To establish inferior courts, 573-576. To declare war, raise and support armies, provide and maintain a navy, etc., 576-581. Power over the militia, etc., 581-597. Over the seat of government, 597-600. The co-efficient power, 600-602. To admit new States, 602-610. New States, of what constituted and how admitted, 610, 616. Power to punish treason, 616-624. Power over public acts, records, etc., 624-627. Privileges and immunities of citizens, 627-634 Guarantee of republican form of government, 634-642. Express limitations on Federal power, 642-652. Prohibition against bills of attainder and ex post facto laws, 652-666.

CHAPTER XI.

THE FIRST TEN AMENDMENTS...........667-692

The First Amendment, 667-671. The Second and Third Amendments, 671, 672. The Fourth Amendment, 672, 673. The Fifth Amendment, 673-678. The Sixth Amendment, 678-682. The Seventh Amendment, 682-686. The Eighth Amendment, 686, 687. The Ninth Amendment, 687-689. The Tenth Amendment, 689-692.

CHAPTER XII.

THE EXECUTIVE DEPARTMENT...........693-752

The President possesses executive powers and none other, 693, 694. The President an officer of the United States, 694. Manner of electing; by electors, 695-701. Change in mode of elect-

ing by Twelfth Amendment, 701, 702. The Tilden-Hayes contested election, 702-704. Number of electoral votes necessary to an election, 704. When may the House elect, 705. Mode of election of Vice-President, 705-708. Criticism of electoral college as a mode of electing, 709, 710. Eligibility to the office of President, 711. Disability of President to discharge duties of office, 711-714. Powers and duties of President, 715-723. Extent of power of the President and Senate to make treaties, 723-732. Power to nominate, etc., ambassadors, etc., 732-740. Power to fill vacancies, etc. 740-743. Duty to give Congress information by message, etc.. 743, 744. Power to receive ambassadors, etc., 744-748. Duty to see that laws are faithfully executed, 748. May be impeached, 748. Examples of questionable exercise of power by Presidents, 749-752.

CHAPTER XIII.

THE JUDICIAL DEPARTMENT...........753-820

Judicial power vested in one Supreme Court, 755. Inferior courts, 756. Extent of judicial power of United States, 757-760. Jurisdiction of United States courts, 760-769. Extends to all cases in law and equity, 769. Cases affecting ambassadors, etc., 770-772. Admiralty and maritime jurisdiction, 772-781. "Controversies to which the United States shall be a party," 782-784. "Controversies between two or more States," 784, 785. Between "a State and citizens of another State," 785-797. Appellate jurisdiction of Supreme Court over judgments of State appellate courts, 798-800. Can any part of judicial power of the United States be vested in State courts? 800-804. Can a State court enforce a right arising under a law of the United States? 804-810. Power of removal of cases from State to Federal courts, 810-815. Right of habeas corpus branch of appellate jurisdiction of the Supreme Court, 815-819.

CHAPTER XIV.

LIMITATIONS ON THE POWERS OF THE STATES......821-874

Two classes of — absolute and qualified, 821, 822. Absolute — no State shall "grant letters of marque and reprisal," 823. Or "coin money," 823. Or "emit bills of credit," 824, 825. Or "make anything but gold and silver coin a tender in payment of debts," 825-827. Or "pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts," 827-840. Or "grant any title of nobility," 840, 841. Qualified limitations upon, 841. No State shall without consent of Congress lay any imposts or duties, etc., 841-844. Or, "without consent of Congress, lay any

duty of tonnage," 844. Or "keep troops or ships of war, in time of peace," etc., 844-846. Effect of post-bellum amendments on the powers of the States, 846-852. Privileges or immunities of citizens of the United States not to be abridged by the States, 852-854 Due process of law and equal protection of the laws discussed, 854-872.

APPENDIX................. 875

MAGNA CARTA................875-877

PETITION OF RIGHT — A. D. 1628..........878, 879

BILL OF RIGHTS — A. D. 1689...........880-885

RESOLUTIONS OF CONGRESS, OCTOBER 14, 1774......886-891

VIRGINIA RESOLUTIONS, DECEMBER, 1798........891-893

KENTUCKY RESOLUTIONS, NOVEMBER, 1798.......893, 891

ACTION OF STATES ON VIRGINIA RESOLUTIONS......894-898

CONSTITUTION OP THE UNITED STATES........899-918

DECLARATION OF INDEPENDENCE..........919-924

ARTICLES OF CONFEDERATION...........924-933

RESOLUTIONS AND LETTER TRANSMITTED TO CONGRESS BY THE

FEDERAL CONVENTION............ 934-936

TABLE OF CASES CITED.

Ableman v. Booth, 363, 633, 762,

782.

Acheson v. Huddleston, 571. Akerly v. Vilas, 802. Alabama v. Georgia, 784. Alaska, The, 776. Alexander's, Mrs., Cotton, 591. Algernon, Sidney's, Case, 873. Allen v. Inhabitants of Jay, 78, 496.

v, Newberry, 775, 778. Allis v. United States, 681, 685. Allison v. United States, 686. Almy v. California, 660, 842. Amer. Ins. Co. v. Canter, 609, 756,

820. Amer. N. & T. Co. v. Worthington,

508.

Amer. P. W. v. Lawrence, 871. Amer. Pub. Co. v. Fisher, 609. Ames v. Kansas, 798, 804, 805. Anarchist Cases, 666. Anderson v. Dunn, 435.

v. United States, 553. Anderson's Case, 680. Andrews v. Wall, 778. Antoni v. Greenhow, 767, 786, 789,

829, 839.

Arrowsmith v. Harmoning, 869. Arthur v. Morrison, 508. Asher v. Texas, 544. Asylum v. New Orleans, 836. Atkinson v. Cummins, 612. Atlee v. Packet Co., 779.

Attorney-General v. Stuart, 183. Avegno v. Schmidt, 623, 720. Ayres, In re, 768, 786, 789, 816.

B.

Bailey v. Magwire, 866. Bain's Case, 674, 676, 768, 815. Baldwin v. Bank of Newberry, 562.

v. Hale, 562.

B. & O. R. Co. v. Keedy, 830. Bank v. Manchester, 573.

v. Supervisors, 465. Bank of N. A. v. Cooper, 527. Bank Tax Case, 465. Bank of U. S. v. Dandridge, 830.

v. Devaux, 794.

v. Halstead, 801. Barbier v. Connolly, 853, 854, 859,

865. Barney v. Keokuk, 863.

v. Baltimore, 600. Barron v. Baltimore, 666, 692. Bartemeyer v. Iowa, 547. Bass v. Fontleroy, 833. Bayliss v. Insurance Co., 684. Beach v. Trudgain, 871. Beall v. New Mexico, 609. Beard v. Federy, 797. Beatty v. Knowler, 836. Beer Co. v. Massachusetts, 547, 831. Beers v. Haughton, 562. Belfast, The, 777, 778.

Bell's G. R. Co. v. Pennsylvania, 859. Benner v. Porter, 612. Bigelow v. Forrest, 622. Binghamton Bridge, The, 831, 836. Birtwhistle v. Vardill, 201. Bissell v. Heyward, 594. Blackwell, The, 778. Blake v. McClung, 628, 857.

v. United States, 738. Blankard v. Galy, 183, 184. Bloodgood v. Mohawk R. Co., 870. Blount v. Walker, 626. Board of Liquidation v. McComb,

791.

Boese v. King, 562. Bollman, Ex parte, 609, 619, 621, 647. Boom Co. v. Patterson, 809, 870. Borough v. Warwick, 439. Boss v. Preston, 771, 772, 798, 804. Bos worth's Case, 623. Bowman v. Railroad Co., 534, 547. Boyce v. Tabb, 803. Boyd v. Nebraska, 759, 769.

v. Thayer, 609, 767, 768.

v. United States, 666, 673, 676. Boyer, Ex parte, 776, 778. Boyle v. Zacharie, 561. Bradwell v. State, 345, 853. Brennon's Case, 543. Bridge Co. v. United States, 551. Bridges, Ex parte, 811. Brimmer v. Rebman, 542. Briscoe v. Bank of Kentucky, 361,

518, 788, 824. Bronson v. Kinzie, 839.

v. Rodes, 511. Brown v. Duchesne, 573.

v. Houston, 543, 553, 842.

v. Maryland, 419, 526, 536, 539, 543, 545, 548, 551, 842.

v. Smart, 562, 563.

v. Strode, 797.

v. Walker, 676. Bucher v. Chester R. Co., 802, 803.

Buck v. Colbath, 805. Buffalo City, In re, 677. Burford, Ex parte, 672. Burgess v. Seligman, 803. Burns v. Missouri, 825. Buron v. Denman, 804. Burroughs v. Peyton, 580. Burrow-Giles L. Co. v. Sarony, 573. Bush v. Kentucky, 873. Bushnell v. Kennedy, 788. Butch. U. etc. Co. v. Crescent City,

etc. Co., 834. Butler v. Eaton, 864.

v. Gorley, 562, 563.

v. Pennsylvania, 833.

c.

Cadwalader v. Zeh, 508. Calder v. Bull, 361, 656. Caldwell v. Texas, 868. California v. Pacific R. Co., 572. Callahan v. Myers, 573. Callan v. United States, 681.

v. Wilson, G09. Calvin's Case, 183, 185. Cameron v. Hodges, 795. Campbell v. Hall, 183, 185. Cannon v. New Orleans, 844

v. United States, 669. Cardwell v. Amer. Bridge Co., 612. Carpenter v. Strange, 626. Carrington v. Pratt, 778. Carroll v. United States, 593. Cary v. Peters, 796. Castle v. Bullard, 684. Chapman, In re, 435. Chappedelaine v. De Chenaux, 797. Charles River Br. Co. v. Warren Br.

Co., 835, 866. Cheever v. Wilson, 626. Chemung Canal Co. v. Lowery, 628. Cherokee Nation v. Georgia, 558,

787.

Cherokee Nation v. S. Kan. Ry. Co.,

598, 870.

Cherokee Tobacco, 728. Chicago, etc. Ry. Co. v. Chicago, 873.

v. Minnesota, 866, 867.

v. Robbins, 803.

v. Wellman, 834.

v. Wiggins F. Co., 626. Chinese Exclusion Case, 552. Chinese Cases, 552. Chisholm v. Georgia, 312, 385, 758,

782, 785. Choctaw Nation v. United States,

558.

Choffin v. Taylor, 768. Christmas v. Russell, 626. Christy, Ex parte, 802. Civil Rights Cases, 850, 857, 858. Claflin v. Houseman, 801, 804. Clark v. Barnard, 835. Clinton v. Englebrecht, 820. Coe v. Erroll, 549, 550. Coffin v. Coffin, 440. Cohens v. Virginia, 599, 767, 772,

786, 788, 799, 800. Cole v. La Grange, 79, 870. Coleman v. Tennessee, 594, 819. Collector v. Day, 315, 317, 361, 372,

464, 512, 536, 691. Collins v. New Hampshire, 534. Colson v. Lewis, 797. Columbus So. Ry. Co. v. Wright,

864.

Commerce, The, 775, 777. Com. & Vicksburg Bank v. Slo-

cumb, 797. Com'rs of Laramie Co. v. Com'rs of

Albany, 868. Commonwealth v. Cambridge, 830.

v. Hawes, 630.

v. Hitchings, 378. Connelly v. Taylor, 796. Conner v. Elliott, 628.

Cook v. Moffatt, 561.

v. Pennsylvania, 550. Cooley v. Board of Wardens, 529,

546, 551, 560. Cooper v. Telfair, 653. Cope v. Cope, 609.

v. Dry Dock Co., 779, Corbett's Case, 404. Corfield v. Coryell, 532, 627, 855. Corsair, The, 776. Coster v. Greenhow, 786. Counselman v. Hitchcock, 676. Coupon Cases, 514, 791, 829. Covell v. Heyman, 762. Craemer v. Washington, 676. Craig v. Missouri, 514, 824, 825. Crandall v. Nevada, 852. Crespigny v. Wittennoon, 382. Cross v. Harrison, 609, 612, 749.

v. North Carolina, 869, 871. Crowley v. Christenson, 854. Crutcher v. Kentucky, 542, 543, 545,

556. Cummings v. Missouri, 653, 654, 655,

719, 828. Cunningham v. Neagle, 526, 786,

813.

v. Railroad Co., 789, 791. Curran v. Bank of Arkansas, 518,

788, 832, 837, 839. Curtis v. Whipple, 496.

D.

Daniel Ball, The, 534, 550, 557. Darrington v. Bank of Alabama,

518, 825. Dartmouth College Case, 251, 769,

830, 83a Davidson v. New Orleans, 859, 861,

862. Davis v. Gray, 791.

v. Packard, 772.

v. Texas, 869.

Day v. Gallup, 805.

v. Micou, 622. Debs, In re, 581. Delafield v. Illinois, 801. Delaware R. Tax Case, 834, 866. De Lovio v. Boit, 774. Denny v. Bennett, 839. Dent v. West Virginia, 854. Dial v. Reynolds, 801. Diggs v. Wolcott, 805. District of Columbia Com'rs v. B.

& P. R. Co., 599. Divina Pastora, The, 746. Dobbins v. Commissioners, 465. Doe v. Beeby, 612. Dollar Savings Bank v. United

States, 861. Dooley v. Smith, 509. Dorr, Ex parte, 801. Dred Scott v. Sanford, 343, 372, 604,

609. Dubuque, etc. R. Co. v. Litchfield,

836. Dynes v. Hoover, 805.

E.

East Hartford v. Hartford Br. Co.,

833.

Eaton v. Railroad Co., 677. Eclipse, The Steamer, 776. Edwards v. Elliott, 692.

v. Kearzey, 839. Eilenbecker v. Dist. Ct. Plymouth,

666, 854.

Eldridge v. Trezevant, 863. Elk v. Wilkins, 559, 852. Elmore v. Grymes, 684. Elmwood v. Marcy, 802. Ernmert v. Missouri, 543. Entic v. Carrington, 573. Essex Pub. Rd. Bd. v. Shinkle, 832,

868. Eustis v. Bolles, 768.

Evans v. Richmond, 594. Exchange, The, v. McFaddin, 770. Eyster v. Gaff, 804.

F.

Fairfax v. Hunter, 690, 786.

Fairfield v. Gallatin, 803.

Fairman v. Ives, 671.

Farm. & M. Bank v. Bank, 804.

Ferris v. Higley, 609.

Ferry Co. v. St. Louis, 545.

Fertilizing Co. v. Hyde Park, 834,

837, 860.

Field v. Clark, 433. Fiske, Ex parte, 803, 815.

v. Henarie, 810.

v. Jefferson Police Jury, 840. Fitts, etc. v. McGhee, etc., 768, 791. Fleming v. Page, 609. Fletcher v. Peck, 33, 77, 377, 493, 653,

655, 828, 829. Florida v. Georgia, 784, 787. Ft. Leavenworth R. Co. v. Iowa, 782.

v. Lowe, 5S8. Foster v. Kansas, 547.

v. Neilson, 728, 816. Fox v. Ohio, 565, 666. Freeland v. Williams, 658, 835. Freeman v. Howe, 762. French v. Hay, 801, 802.

v. Wade, 622. Fretz v. Bull, 775. Furman v. Nichol, 511, 829, 836.

G.

Gaines v. Fuentes, 809.

v. Relf, 627. Galpin v. Page, 626. Garland, Ex parte, 593, 653, 655, 719,

720, 828.

Garnett, In re, 776. Gassies v. Ballou, 792, 796.

Gavinzel v. Crump, 594. Gay v. United States, 502. Gelpeke v. Dubuque, 803. Gelston v. Hoyt, 805, 816. Genessee Chief, The, 774, 775, 776,

777.

Geofrey v. Riggs, 732, 769. Georgia v. Atkins, 465.

v. Madrazo, 800.

v. Stanton, 817. Gibbons v. Ogden, 251, 354, 360, 373,

374, 466, 468, 481, 497, 522, 523,

534, 535, 536, 541, 547, 690, 842,

843.

Giddings v. Crawford, 771. Gilman v. Lockwood, 562.

v. Philadelphia, 361, 551. Giozza v. Tiernan, 525, 548. Givin v. Wright, 836. Glide, The, 779, 781. Gloucester Ferry Co. v. Pennsylvania, 542.

Gold Washing Co. v. Keyes, 809. Goszler v. Georgetown, 834. Grand Rapids Boom. Co. v. Jarvis,

677.

Grapeshot, The, 819. Graves v. Corbin, 810. Green v. Biddle, 609, 828, 829.

v. Neal, 803.

v. Van Buskirk, 626. Greenwood v. Freight Co., 831, Groves v. Slaughter, 555. Gulf, etc. Ry. Co. v. Hefley, 553. Gunn v. Barry, 838, 840. Gurr v. Scadds, 508. Guy v. Baltimore, 546, 550, 629.

H.

Hagan v. Lucas, 762, 805. Hagar v. Reclamation Dist., 861. Hagood v. Southern, 789, 791. Haines v. Carpenter, 801.

Hall v. De Cuir, 534, 857. Hall v. Wisconsin, 831. Ham v. Louisiana, 787. Hamblin v. West. Land Co., 768. Hampton v. McConnell, 626. Hanrick v. Hanrick, 810. Harris v. Hardeman, 626. Harrisburg, The, 776. Hart v. United States, 720. Hartman v. Greenhow, 767, 838. Hartranft v. Wiegman, 508. Hartung v. People, 657. Hauenstein v. Lynham, 732, 769. Hawkes v. New York, 829. Hawthorne v. Calef, 840. Hayes v. Missouri, 869. Haygood v. Southern, 786. Head v. Armstrong, 866. Head-money Cases, 523, 525, 527, 728. Henderson Br. Co. v. Henderson,

768. Henderson et al. v. Mayor of New

York, 541.

Hennen, Ex parte, 735, 736, 740. Hennington v. Georgia, 543. Hepburn v. Ellzey, 600, 787, 792, 798.

v. Griswold, 361, 307, 371, 509,

512, 518.

Hicks v. United States, 686. Hine, The, v. Trevor, 776, 779, 781. Hodgson v. Vermont, 871. Holden v. Hanry, 854.

v. Hardy, 868.

v. Minnesota, 871. Hollinsworth v. Virginia, 786. Holmes v. Jennison, 630. Home v. Freeman, 805. Home of Friendless v. Rouse, 836. Home Ins. Co. v. New York, 864. Homestead Cases, 839. Hooper v. California, 545, 557, 628. Hopkins v. United States, 553. Hopt v. Utah, 657. Hornbuckle v. Toombs, 820.

Homer v. United States, 567, 670. Houston v. Moore, 874, 581, 773, 800.

v. Tex. Cent. Ry. Co., 658. Howard v. Bugbee, 838. Huiling v. Kaw Val. R & I. Co.,

678.

Hunt v. Hollinsworth, 758. Hunter v. Martin, 799. Hurtado's Case, 871. Huse v. Glover, 612. Hylton v. United States, 462, 659.

I.

Illinois v. Delafleld, 801. Insurance Co. v. Morse, 809.

v. Pechner, 809.

v. Younger, 775.

Interstate Com. Com'rs v. Ala. Mid. R. Co., 553.

v. B. & O. R Co., 553

J.

Jackson, Ex parte, 567, 670.

v. Magnolia, 609.

v. Twentyman, 797. J. R. & K. Co. v. Turner, 870, Jecker v. Montgomery, 819. Jefferson Br. Bank v. Skelley, 803,

831, 836. Jenkins v. Anderson, 78.

v. Collard, 592, 593, 623, 624, 720.

v. Saunders, 496. Jennings v. Carson, 385. Johnson v. Elevator Co., 779.

v. McIntosh, 30, 181, 184.

v. Sayre, 675. Jones v. McMaster, 797.

v. Richmond, 871.

v. United States, 575, 609. Juillard v. Greenman, 367, 509. Julia Bldg. Ass'n v. Bell Tel. Co.,

677. Justices v. Murray, 692.

K.

Kaine, Ex parte, 815.

Kansas v, Indiana, 817.

Kan. Pac. R. Co. v. A., T. & S. F. R.

Co., 794. Kaukauna Co. v. Green Bay, etc,

Canal, 870.

Keith v. Clark, 590, 594, 829. Kemmler, In re, 853. Kemper v. Hawkins, 53, 70. Kendall v. United States, 796. Kentucky v. Dennison, 302, 630, 785. Keyes v. United States, 738. Kidd v. Pearson, 547. Kiely v. Carson, 435. Kilburn v. Thompson, 435. Kimmish v. Ball, 542. King, The, v. Passmore, 830. King v. United States, 861. Kingsbury's Case, 630. Knox v. Lee, 367, 371, 509, 518, 529. Kohl v. United States, 870. Koontz v. B. & O. R. Co., 809, 810. Korn v. Mut. Ass. So. of Va., 833. Kring v. Missouri, 657, 803. Kunzler v. Kohans, 563.

L.

Laing v. Regney, 627.

Lake Front Cases, 834, 867.

Lake Shore, etc. R. Co. v. Ohio, 572.

Lamar v. Brown, 589.

Lands in Flatbush, In re, 833.

Lane Co. v. Oregon, 317, 361, 512.

Lanfear v. Hensley, 797.

Lange, Ex parte, 815.

Laramie Co. v. Albany Co., 833.

Lascelles v. Georgia, 630.

Laundry Cases, 856.

Lau Ow Bow v. United States, 552.

Law v. Austin, 842.

Leathers v. Blessing, 779.

Leaven worth R. Co. v. Low, 598.

Lee v. United States, 783, 791. Leeper v. Texas, 868. Leffingwell v. Warren, 803. Legal Tender Cases, 77, 78, 361, 367,

371, 493, 849. Lehigh V. R Co. v. Pennsylvania,

545, 553.

Leisy v. Hardin, 548. Leloup v. Port of Mobile, 544. Lemmon Slave Case, 554. Lem Moon Sing v. United States,

552.

Leon v. Galceran, 778, 779. Leroux v. Hudson, 801. Lexington, The, 774. License Cases, 541, 545, 547. License Tax Cases, 659. Litchfield v. Webster Co., 791. Livingston v. Moss, 802. Loan Ass'n v. Topeka, 33, 78, 466,

491, 493, 870. Lottawanna, The, 775. Loughborough v. Blake, 469, 553,

609. Louisiana v. Jumel, 789, 836.

v. Mayor, 837, 869.

v. New Orleans, 829, 837, 839,

869.

Louisville v. University, 832. Louisville R. Co. v. Letson, 794.

v. Woodson, 869. Lovejoy v. United States, 685. Lowell v. Boston, 78, 496. Luther v. Borden, 641, 651, 803, 817. Luxton v. N. R. Br. Co., 572, 870. Lyng v. Michigan, 544.

M.

Machine Co. v. Gage, 543. Mackin v. United States, 674. Maddock v. Magone, 508. Magnolia, The, 773, 774, 775. Magone v. Heller, 508.

Maine v. G. T. R. Co., 544, 553, 864. Manchester v. Massachusetts, 629,

780.

Manning, In re, 868. Marbury v. Madison, 64, 174, 376,

748, 754, 768, 772, 798. Marshall v. B. & O. R. Co., 794. Martin v. Hunter, 288, 360, 490, 766, 767, 769, 798, 799, 800.

v. Mott, 581, 818.

v. Waddell, 237. Marvell v. Merritt, 508. Maryland v. B. & O. R. Co., 833.

v. West Virginia, 784. Mattox v. United States, 680, 682,

857. Mayor v. State, 833.

v. Wood, 794.

McAllister v. United States, 609. McCall v. California, 544. McCardle's Case, 639, 643, 818. McCulloch v. Maryland, 294, 361,

367, 369, 373, 374, 465, 466, 494,

511, 516, 518, 690. McCracken v. Hayward, 838. McCready v. Virginia, 629, 778. McElrath v. United States, 684. McElvaine v. Brush, 687, 871. McGahey v. Virginia, 790, 791, 803,

829, 838, 840. McGee v. Mathis, 829. McGuire v. Card, 775. McIntyre v. Wood, 796. McKim v. Voorheis, 801. McNeil, Ex parte, 801, 804 McNulty v. Batty, 612. Medley's Case, 658, 659, 871. Memphis R. Co. v. Commissioners,

832.

Merryman, Ex parte, 648, 650. Milburn, Ex parte, 815. Miller v. United States, 591, 681. Milligan, Ex parte, 364, 372, 595,

650, 681, 768, 818.

Mills v. Duryee, 626. Minneapolis Ry. Co. v. Beckwith,

865, 868.

Minor v. Happersett, 345, 854. Mississippi v. Johnson, 748, 817. Missouri v. Iowa, 784.

v. Lewis, 809.

Mo., K. & T. R. Co. v. Haber, 542. Mo. Pac. Ry. Co. v. Fitzgerald, 810.

v. Humes, 865, 866.

v. Mackey, 865, 866.

v. Nebraska, 870. Mitchell v. Thornton, 870. Mobile v. Kimball, 525, 526, 546, 550,

551.

Money v. Leach, 672. Monongahela Nav. Co. v. United

States, 551, 870. Moore v. Illinois, 565, 634

v. Quirk, 464. Moran v. Sturges, 781. Mormon Church v. United States,

609, 666, 832. Morrisey, In re, 580. Moses Taylor, The, 779, 781, 804 Mostyn v. Fabrigas, 804. Moultrie Co. v. Savings Bank, 828. Mt. Pleasant v. Beckwith, 833. Mud Island Case, 780. Mugler v. Kansas, 534, 546, 854. Mullan v. United States, 738. Muller v. Daws, 794. Mumma v. Potomac Co., 831. Murdock v. Memphis, 768. Murphy v. Ramsay, 609, 658, 669. Murray's Line v. Hoboken L. & I.

Co., 868.

N.

Nashville, etc. R. Co. v. Alabama,

526, 545. Natal v. Louisiana, 868.

National Bank v. Commonwealth, 861.

v. County of Yankton, 609. Nations v. Johnson, 626. Neagle's Case, 526, 786, 813. Neal v. Delaware, 873. Neil v. Ohio, 571. New Hampshire v. Louisiana, 786,

792.

New Jersey, The, 774. New Jersey v. New York, 787.

v. Wilson, 828, 829.

v. Yard, 832. New Jersey S. N. Co. v. Merchants'

Bank, 774. Newman v. Arthur, 508.

v. M. E. R. Co., 677. New Orleans v. Clark, 833.

v. Houston, 831.

v. New Orleans, etc. Co., 834,

868.

New Orleans, etc. Co. v. New Orleans, 834

Newton v. Commissioners, 866. New York v. Louisiana, 792.

v. Miln, 541, 545.

v. Squire, 864, 865. New York, etc. R. Co. v. Bristol, 834

v. Pennsylvania. 544. Nishimura Ekino v. United States,

525, 552.

Nix v. Hiden, 503. Noonan v. Bradley, 762. N. & W. R. Co. v. Virginia, 54a North Carolina v. Temple, 786,

787. Northern Ind. R. Co. v. Mich. C. R.

Co., 794 Northern Liberties v. St. John's

Church, 78, 495.

Northern Pac. R. Co. v. Plaine, 758. Nudd v. Burrows, 804

O.

Ogden v. Saunders, 374, 377, 561,

828, 840.

O. & M. R. Co. v. Wheeler, 794, 795. Olcott v. Supervisors, 803. Orleans, Steamer, v. Phoebus, 775. Osborne v. Bank of United States, 465, 518, 789, 798.

v. Black, 772.

v. Mobile, 551.

v. United States, 719. Owings v. Speed, 269, 840.

P.

Pace v. Alabama, 854.

v. Burgess, 529, 660. Pac. Exp. Co. v. Seibert, 544. Pac. Ins. Co. v. Soule, 460, 462. Pac. R. Co. Removal Cases, 572. Packer v. Bird, 853. Packet Co. v. Catlettsburg, 546, 661, 844

v. Keokuk, 546, 844.

v. St. Louis, 546. Page v. Burgess, 465. Palmer v. Barrett, 782. Pargoud v. United States, 593. Parks, Ex parte, 815. Parsons v. Bedford, 684. Passenger Cases, 523, 524, 527, 532,

541.

Patterson v. Kentucky, 551. 573. Patton v. United States, 508. Paul v. Virginia, 532, 557, 628, 855. Paup v. Drew, 829. Peck v. Jenness. 801, 802, 805. Peete v. Morgan, 539, 844. Penhallow v. Doane, 234, 235, 385. Penn v. Lord Baltimore, 784. Penniman's Case, 839. Pennoyer v. McConnaughy, 790,

791.

Pensacola Tel. Co. v. W. U. Tel. Co.,

527, 544. Pennsylvania v. Wheeling & Bel.

Br. Co., 551, 661. Pennsylvania Co., In re, 810. Pennsylvania R. Co. v. Miller, 834,

837. People v. Brady, 630.

v. Compagnie Gen. Transatlantique, 525, 541, 843.

v. Gallier, 859.

v. Godfrey, 598, 782.

v. Hurlbut, 833.

Permoli v. New Orleans, 612, 666. Pervear v. Commonwealth, 541,

549, 687, 692. Peters v. Bain, 804. Philadelphia v. Fox, 833. Pierce v. Carskadon, 655.

v. Drew, 677.

v. Fries, 631. Pike v. Wassal, 622. Pittsburg Coal Co. v. Bates, 548, 554.

v. Louisiana, 546, 550. Planters' Bank v. Sharp, 840. Plessy v. Ferguson, 858, 859. Plumley v. Massachusetts, 542, 549,

552, 556.

Plymouth, The, 779. Poindexter v. Greenhow, 789. Pollard v. Hagan, 237. Pollock v. Farmers' L. & T. Co., 378,

463, 659.

Poole v. Fleeger, 846. Post v. Supervisors, 803. Postal Tel. Co. v. Adams, 544.

v. Charleston, 544 Pound v. Turk, 612. Powell v. Pennsylvania, 466. Presser v. Illinois, 666, 672, 853. Prigg v. Pennsylvania, 632, 634. Prize Cases, 588, 645, 647, 746. Protector, The, 5S6.

Providence Bank v. Billings, 836. Provident Institution v. Mayor, 862. Pullman Car Co. v. Pennsylvania,

554. Pumpelly v. Green Bay Co., 870.

R.

Railroad Co. v. Alabama, 526, 545. v. Arnoud, 794. v. A., T. & S. F. R. Co., 794. v. Beckwith, 865, 868. v. B. & C. R. Co., 802. v. Board of Trempealeau Co.,

831.

v. Bosworth, 592, 593, 622, 720. v. Bristol, 834, 867. v. Brown, 858. v. Chicago, 873. v. Commissioners, 832. v. Dennis, 836. v. Fitzgerald, 810. v. Fuller, 545, 834. v. Georgia, 802. v. Gibbs, 864. v. Haber, 542. v. Humes, 865, 866. v. Husen, 542. v. Illinois, 857. v. Interstate, etc. Co., 551. v. Iowa, 782, 862, 867. v. Johnson, 509. v. Keedy, 830. v. Keyn, 779. v. Letson, 794 v. Litchfield, 836. v. Low, 598. v. McClure, 828. v. Mackey, 865, 866. v. Mich. C. R. Co., 794 v. Miller, 834, 837, 867. v. Minnesota, 866, 867. v. Mississippi, 857, 858. v. Nebraska, 870.

Railroad Co. v. Pennsylvania, 544, 545, 553, 859, 861.

v. Peniston, 545.

v. Plaine, 758.

v. Putnam, 085, 804

v. R. A. Patterson Tobacco Co., 553.

v. Richmond, 528.

v. Robbins, 803.

v. Southern Pac. Ry. Co., 627.

v. Towboat Co., 779.

v. Virginia, 543.

v. Wellman, 834, 867.

v. Whitten, 794, 802, 809.

v. Wiggins F. Co., 626.

v. Woodson, 869. Railroad Commission Case, 865. Railroad Tax Case, 864 Randall v. B. & O. R. Co., 684,

v. Brigham, 440. Rapier, In re, 567, 670. Ratterman v. Western U. Tel. Co.,

527, 544 Rector v. County of Philadelphia,

834.

Reggel, Ex parte, 630. Removal Cases, 802, 810. Renaud v. Abbott, 626. Rex v. Creesy, 440.

v. Brampton, 184

v. Vice-Chancellor, 830.

v. Wilks, 430, 439, 440.

v. Williams, 381.

Reynolds v. United States, 609, 669. Rhode Island v. Massachusetts, 784,

846. Rhodes v. Bell, 600.

v. Iowa, 534

Rice v. Railroad Co., 836. Richmond & A. R. Co. v. R. A. Patterson Tobacco Co., 553. Riggs v. Johnson, 802. Rio Grande R. Co. v. Gomila, 762,

805.

Bobbins v. Shelby Tax Disk, 543,

544

Roberts v. Reilley, 630. Robinson v. Cease, 794, 795. Robinson, Ex parte, 811. Rose v. Hemley, 746. Rosen v. United States, 868. Ross, In re, 682. Rowland, Ex parte, 815. Royall v. Virginia, 526. Rumpf v. Commonwealth, 801. Rundle v. Canal Co., 794 Runkle v. United States, 718.

S.

Sah Quah, In re, 609.

St. Anthony Falls W. P. Co. v. St.

P. W. Com'rs, 539. St. John v. Payne, 774. St. Louis v. Ferry Co., 844.

v. Myers, 612.

Saltenstall v. Wiebush, 508. Sands v. M. R. Mfg. Co., 612. Santa Clara Co. v. S. Pac. Ry. Co.,

572, 864.

Santissima Trinidad, The, 774. Sapphire, The, 792. Satterlee v. Mathewson, 561, 656. Schmieder v. Barney, 508. Scholey v. Rew, 460, 462. Schollenberger v. Pennsylvania,

534, 548.

Schoonmaker v. Gilmore, 779. Scotland, The, 776. Scotland County v. Thomas, 832. Scott v. Jones, 787.

v. Sanford, 796. 851. Searight v. Stokes, 571. Semple v. Hagar, 797. Sharf & Hansen v. United States,

635. Shelby v. Bacon, 762.

v. Guy, 802.

Sheldon v. Sill, 796. Shelton v. Tiffin, 792, 796. Shields v. Ohio, 832.

v. Schiff, 622, 720. Shipley v. B. & O. R. Co., 677. Shively v. Bowlby, 609. Siebold. Ex parte, 815. Silver Co. v. Pennsylvania, 864. Simmons v. United States, 676, 685. Sinking Fund Cases, 571, 832, 840. Slaughter House Cases, 345, 346, 361,

532, 552, 628, 852, 853, 855. Slidell v. Grandjean, 836. Slocum v. Maybury, 805. Smith v. Brown, 184.

v. Lyon, 810.

v. Maryland, 692. 778.

v. McIver, 762.

v. Silver V. M. Co., 830.

v. Turner, 852. Smyth v. Ames, 861. Society, etc. v. Coite, 865.

v. New Haven, 797. Sonn v. Magone, 508. Soon Hing v. Crowley, 854, 860, 865,

866.

Spies v. Illinois, C66, 673, 768, 854 Springer v. United States, 460, 462,

659.

Springville v. Thomas, 609. Stanley v. Schwalley, 304

v. Supervisors, 681. State v. Burnham, 671.

v. Osawke, 497. State Bank of Ohio v. Knoop, 803,

833, 836.

State Freight Cases, 527, 544 State Tonnage Tax Cases, 545, 844 Steamboat Co. v. Chase, 779. Steamship Co. v. Jolliffe, 546.

v. Louisiana, 539.

v. Manufacturing Co., 778, 801.

v. Port Wardens, 844

v. Tinker, 844

Steamer St. Lawrence, 775. Stevens v. Griffith, 594. Stewart v. Salaman, 594. Stockdale v. Hansard, 175, 435. Stone v. Mississippi, 834.

v. Railroad Co., 866.

v. South Carolina, 810. Stoutenburgh v. Hennick, 533, 544,

553. Strauder v. West Virginia, 809, 813,

871. Sturgis v. Crowninshield, 374, 561,

840.

Supervisors v. United States, 854. Suydam v. Williamson, 803. Swann v. Arthur, 508.

T.

Taylor v. Carryll, 774, 779, 781, 801.

v. Morton, 728.

v. Stearns, 839, 840.

v. Taintor, 630, S31. Teal v. Felton, 801, 805, 809. Tel. Co. v. Massachusetts, 864.

v. Texas, 527, 534, 544. Tennessee v. Bank, 810.

v. Davis, 809, 811, 814.

v. Snead, 837, 839.

v. Virginia, 784.

v. Whitworth, 836. Terrett v. Taylor, 829. Terry v. Anderson, 838. Texas v. White, 297, 315, 316, 317,

338, 340, 347, 590, 594, 612, 638,

642.

Texas, etc. Ry. Co. v. Interstate, etc. Co., 551.

v. So. Pac. Ry. Co., 627. Thaxton v. Williams, 830. Thomas Gibbous, The, 578. Thompson v. Androscoggiu River Imp. Co., 677.

v. Missouri, 829.

Thompson v. Railroad Co., 758.

v. United States, 674.

v. Utah, 609, 829.

v. Whitman, 626. Thorington v. Smith, 594. Tinsley v. Anderson, 859. Tomlinson v. Branch, 791.

v. Jessup, 831.

Town of Pawlet v. Clark, 797, Townsend v. Todd, 802. Trade-Mark Cases, 377, 573. Transportation Co. v. Wheeling,

844.

Trebilcock v. Wilson, 511, Trevett v. Warden, 385. Trustees v. Indiana, 833. Tuckahoe Can. Co. v. Tuckahoe R,

Co., 677.

Tucker v. Ferguson, 834. Turner v. Amer. Bapt. Union, 728.

v. Bank, 796.

v. Maryland, 541, 843. Turpin v. Burgess, 465, 529, 660. Twitchell v. Commonwealth, 666,

681, 692.

Tyler v. Beacher, 870. Tyng v. Grimmell, 508.

U.

Union Bank v. Hill, 464.

Union Pac. Ry. Co. v. United

States, 571. United States v. Anderson, 816.

v. Arjona, 575.

v. Arredondo, 836.

v. Ballin, 432.

v. Barlow, 567.

v. Beevans, 773, 778, 780, 800.

v. Burr, 619, 621.

v. Chenowith, 620.

v. Chicago, 782.

v. Coombs, 778, 780.

United States v. Cruikshank, 345, 361, 363, 364, 681, 691, 85a

v. Dewitt, 503, 552, 573.

v. Dunnington, 592, 623, 720.

v. E. C. Knight Co., 539.

v. Fisher, 367, 368.

v. Forty-three Gallons of Whiskey, 558.

v. Fox, 612.

v. Germaine, 740.

v. Gettysburg Elec. R. Co., 870.

v. Gratiot, 609.

v. Hall, 657.

v. Harris, 853.

v. Hartwell, 740.

v. Holliday, 558, 817.

v. Insurance Co., 594.

v. Isham, 508.

v. Jailor, 811.

v. Joint Traffic Ass'n, 553.

v. Jones, 801, 804, 870.

v. Kirkpatrick, 740, 742.

v. Klein, 593, 624, 720.

v. Marigold, 565.

v. Moore, 740.

v. Memphis, 833.

v. North Carolina, 787.

v. Ortiga, 770, 772.

v. Padford, 720.

v. Page, 718.

v. Palmer, 746.

v. Perez, 676.

v. Perkins, 736, 738.

v. Peters, 801.

v. Pico, 746.

v. Poinier, 835.

v. Prior, 620.

v. Railroad Co., 464, 685, 833.

v. Rauscher, 630.

v. Ravara, 772, 798.

v. Reese, 316, 378.

v. Rodgers, 558, 575.

v. Rogers, 609.

v. Texas, 786, 787.

United States v. Wagner, 782. v. Walker, 835. v. Wilson, 719, 801. v. Wong Kim Ark, 552, 609, 852. v. Yorba, 746.

V.

Vallandingham's Case, 595. Vance v. Vandercook Co., 534. Vandezie v. McGregor, 671. Veazie Bank v. Fenno, 460, 462, 518. Venice v. Murdock, 803. Vicksburg, etc. R. Co. v. Dennis, 836.

v. Putnam. 685.

Virginia, Ex parte, 813, 815, 872, 873. Virginia Coupon Case, 769, 803, 825,

838, 840. Virginia v. Rives, 809, 813, 872.

v. West Virginia, 784, 787. Visitors, etc. St. Johns College v.

Maryland, 832. Von Hoffman v. Quincy, 829, 839.

W.

Walker v. Harbor Com'rs, 802.

v. Sauvinet, 692, 854, 868.

v. Whitehead, 838. Wallace v. Richmond, 871. Wallach v. Van Ryswick, 592, 622,

720.

Walston v. Nevin, 861. Ward, In re, 873. Ward v. Maryland, 464, 532, 546,

550, 628, 629, 855. Ware v. Hylton, 234, 732.

v. United States, 567. Waring v. Clarke, 773, 777, 781.

v. Mayor, 526, 541, 549. Warren v. Paul, 464. Watkins, Ex parte, 815. Watson v. Jones, 801.

Watson v. Mercer, 658. Wayman v. Southard, 801. Webber v. Harbor Com'rs, 612.

v. Virginia, 532, 573. Wells, Ex parte, 719. Western v. Charleston, 465. West. U. Tel. Co. v. Alabama, 525, 544.

v. Marsh, 544. West River Bridge Co. v. Dix,

836. West Wisconsin Ry. Co. v. Board

of Trempealeau County, 831. Wheaton v. Peters, 573, 802. Wheaton & Donaldson v. Peters &

Griggs, 573. Wheeler v. Jackson, 838, 868.

v. Smith, 251.

Wheeling Bridge Case, 551. White v. Barnley, 627.

v. Cannon, 594.

v. Hart, 590, 838, 839. Whiting v. Fond du Lac, 496.

v. Town of West Point, 833. Wiggins Ferry Co. v. Railway Co.,

865.

Wilkes v. Dinsman, 805. Willamette I. Bridge Co. v. Hatch,

551, 612.

Willamette M. Co. v. Bank, 832. Williams v. Bruffy, 766, 768.

Williams v. Insurance Co., 817.

v. Mississippi, 70, 854. Williamson v. New Jersey, 868. Wilson, Ex parte. 674, 786. Wilson v. B. C. & M. Co., 551.

v. McNamee, 546.

v. Railroad Co., 677. Wilton v, Missouri, 543.

v. Duluth, 551. Wise v. Withers, 805, 818. Withers v. Buckley, 612, 666. Wong Wing v. United States, 609. Wood, In re, 687, 871. Woodruff v. Parham, 545, 557, 660, 842.

v. Trapnall, 518, 829, 836, Worcester v. Georgia, 558. Worthington v. Robbins, 508. Wynehamer v. People, 677.

Yeaton v. Bank of Old Dominion,

832, 833. Yick Wo v. Hopkins, 62, 245, 856,

859, 869. York v. Texas, 869.

Z.

Zabriske v. Cleveland, 833.

CONSTITUTIONAL LAW.

CHAPTER I.

INTRODUCTION.

§ 1. Political Science should be based upon principles established by the use of the Inductive Method. When speculative theories yield to facts, this science will become philosophic, and will have practical value. It is a practical science and not a theory. The relations involved are infinite, and the social machinery needed for their regulation is too intricate to be constructed upon any other foundation than experience.

§ 2. Politics or the Science of the State, deriving its name from po/lij; (city), or politei/a (constitutional government of a state),¹ which has its root in polu/j, the many, is the Philosophy of the Corporate Unity of the many, bound together in society. This incorporate being, e pluribus unum, we call the State, the Commonwealth, the Nation, the Body-politic.

The same root is probably found in the Roman populus, perhaps in the Res publica. There is also another word, civitas, which is more restricted, importing the whole body of citizens, and is in contrast with Aristotle's plh~qoj politw~n, or mass of citizens governing the State; involving a distinction hereafter to be noticed specially.

Cicero defines populus thus: "Populus autem non omnis hominum, coetus, quoque modo conjugatus, sed coetus multitudinis juris consensu et utilitatis communione sociatus."²

It is not an aggregation casually brought about, but a coetus, a going together of the many; sociatus, companioned

¹ Aristotle's Politics, B. 3, ch. 1.

² De Rep., Lib. I, 25.

and allied; juris consensu, by the sanction of law; and utilitatis communione, with a community of benefit, making thus a common-weal, or Res-publica.

This definition is valuable, while not in accord fully with modern thought. It defines the civil body politic, a generic term, which best describes that which is often called State (Stare) from its territoriality as distinct from a nomadic body; — or nation (nascor-natus) because evolved from the family nucleus; or a common-wealth because constructed for the common weal. It is a political body of citizens united for one social life; not the plh~qoj politw~n of Aristotle, which meant only the mass of voters in the state — but the whole body of citizens organized into a state.¹

§ 3. And lot it be noted here that the Body-politic is not the Government, nor the persons admitted to participate in the functions of Government — but it is the whole body of persons politically associated. The organic force of the Body-politic, that social power which controls persons and things, for peace, order and the common weal, is what we call Government. The expression of that force is Law.

This distinction between the Body-politic and the government is fundamental and essential; especially in America, where it has been asserted and maintained with peculiar emphasis, though germinally it may be traced in older institutions.

§ 4. A Body-politic may then be defined to be the organism in unity of the many human beings, associated by jural bond for the objects of the social state in which is vested all rightful political power over its members for the common good of all. This rightful political power so vested, we call Sovereignty, or Supremacy over men and things. In this definition there are two qualifying words as to the political power of the Body-politic: vested and rightful. The one indicates the derivation, the other the limitation, of this supremacy or sovereignty.

These two words introduce us to the discussion of man's

¹ Aristotle's Politics, B. 3, ch. 6.

relation to the Body-politic, which is rather a branch of Sociology, but is properly preliminary to the consideration of the relation between the Body-politic and the government, which belongs to the science of Constitutional Law. Both questions are embraced in Political Science, and the latter question cannot be understood until the first is fully comprehended.

§ 5. The only religious creed which will be assumed as true in this discussion will be that there is a God, who is the Creator and the Governor of the Universe. The principles established, while they will accord with the Christian system, are not deduced from it as an hypothesis, but will result from independent reasoning.

§ 6. What is the proper relation of the Individual to the Body-politic? This is the primal question in our inductive process as applied to Political Science. A condensed answer to this question will be attempted, without going into details, and without much reference to the dissentations of authors.

Many writers, abroad and in America, have held the theory of the Social Compact between men as the basis of Society, and as the fundamental postulate of all political philosophy. This theory is fiction, and as an hypothesis is unsound, and must lead to error.

Of such compact history makes no record; and none could have existed. Man-right in Society is not derived from, nor secured by, any contract between men. Such contracts of men already in social union have been formed, and constitutions and governments have been established by quasi agreements, after Society had long existed; but men have never, when out of Society, entered into it by any compact or agreement. Upon the institutions of Society, as un fait accompli, men have engrafted a formal constitution for the Body-politic, which by consent express, or implied from acquiescence, has been recognized as based on their consent: but institutions historically have always preceded constitutions. The theory predicates an independent isolation of men, and then

assumes an exodus from isolation into social union upon the terms of a compact, by which the Body-politic is created, and its authority is made legitimate.

This theory was the revolt of liberty against the claims of the advocates of despotism, and sought to justify the subversion of established systems of government by the hypothesis of a compact originally made, of which, when broken on the one part, the repudiation by the other was justified. This motive, however it may excuse the fallacy, cannot justify us in adhering to it, especially when, as will be shown, it may be displaced by a more effective doctrine in behalf of free institutions, based upon undoubted and historic foundations.

§ 7. If we suppose the race began with a single pair,¹ man and woman, they were bound in social relations by quasi consent, and this pair constituted the dual-unit of humanity. Their union is the ordination by God, and the impulse of natural instincts.² Every man (except this primal pair) entered society by birth, not under contract. He came without his own volition, by the will of his parents, and under the order of nature. At his coming, he is without will, incapable of contracting, weak and the most helpless offspring in the animal kingdom.

A canon of this School of thought, and perversive of that embodied by Mason in the Bill of Rights of Virginia, June 12, 1776, and by Jefferson in the Declaration of Independence, July 4, 1776, is thus formulated: "All men are born free and equal."

This is utterly untrue — in form and substance. The human being is born not in manhood, but in feeble infancy. He is not free, when born, but subject to a power he cannot resist or abridge; and freed from which, he would perish. Nature ushers him into life under this imperative condition, and assigns him to this subjection, as essential to his life and well-being. To him, this despotism is a blessing, and freedom would be a curse.

¹ Humboldt, Cosmos, 365, etc.

² Aristotle's Politics. B. I, ch. 2; Aristotle's Economics, B. I, chs. 2, 3.

He comes not isolate, but into a social state, to which he did not consent, constituted by others, and from which he cannot fly. Pillowed on a mother's heart, and protected by a father's thrift and courage, he is born at once the subject of their authority, and the dependent object of their care. The want of a social compact is well supplied in the provision of Nature for him; — for under parental control, he is secured from parental tyranny by the instinct of parental love. He is safe in infancy, and under the nurture which God provides, he expands into matured manhood.

§ 8. The canon above quoted asserts that men are born not only free, but equal. Equal to what? and in what? In physical, mental and moral nature? At birth he is equal in neither to any adult, nor to other infants in either of these. Infants are notoriously unequal in heredity and environment.

Inequality continues at the maturity of manhood. The sexes are diverse in gifts and functions. Races of men differ widely.¹ Men of the same race are unequal. In physique, we have giants and dwarfs — athletes and cripples — a Hercules and a hunchback: in mind, we have a Napoleon and a Louis — a Newton and an idiot: in morals, a Washington and an Arnold — a La Fayette and a Marat. In music, we find a genius for harmony, and another who cannot distinguish one air from another: and so in poetry, art, science, philosophy and statesmanship.

God, in derision of the human dogma, stamped the law of inequality upon all his works. There is likeness, but no sameness. Nullum simile est idem. Infinite wisdom is manifest in the infinite variety of creation. Organic and inorganic kingdoms have, in each, innumerable genera and species. Vegetable and animal organisms present a mass of beings in the innumerable steps of an ascending scale from the sponge to the highest type of man. It is in this plan of the all-wise God that we find spheres of utility adapted to the several capacities of every organic atom and

¹ Bluntschli, Theory of the State, Bk I, ch. 1.

every organic life. Each has its function; to each is assigned its mission; and to all moral beings, their duty. Inequality in such a plan is essential, and is the fundamental law of the system. Equality would be out of place, because if established it would destroy the system.

Out of this infinitude of diverse creatures, diverse in structure, in functions and endowments, springs that law of human activity, denoted by the economist as "the division of labor," which is only practicable where there are laborers unequal in capacities, and which makes, under the laws of production and exchange, each creature participate in the productive qualities of every other, and, by combining the labor of all, contribute to the happiness and the common good of all mankind.¹

§ 9. In the Virginia Bill of Rights adopted June 12, 1776, drawn by George Mason, the dogma referred to is presented in a form less open to criticism. It declares² "that all men are by nature equally free and independent." This statement is made of "men;" and asserts their equality by nature in freedom and independence, without averring the extent of their freedom or independence, or of any equality except in freedom and independence. In this form, it is not very different from the doctrine we shall state hereafter.

In the Declaration of Independence the statement is, "that all men are created equal; that they are endowed by their Creator with certain inalienable rights," etc. This avers a creation by God of men in a relation of equality, but without averring in what the equality consists except as it may be implied in the endowment of each with inalienable rights, which are then designated to be: "life, liberty and the pursuit of happiness." Taking this whole statement, it will be found to be very much in accord with the views now to be presented.

§ 10. Pursuing our induction, the question arises: What freedom, if any, and what equality, if any, may properly be

¹ See this illustrated in Rep. of Plato, B. 2, ch. II.

² Bill of Rights, Art. I.

asserted for men? Is all freedom and equality desired? Let our induction winnow the truth from the error.

§ 11. The germ of manhood enters by birth into the family (which is the germ of all society), in subjection to the father, the patria potestas (the germ of all government); and all this is by Divine ordination.

The whole economy of this entrance upon life is conclusive evidence of the truth, that the parental government was designated for the good of the child; for his nurture under the best conditions to his maturity. He is placed under a power, upon which the Divinely implanted instinct puts the most potent limitation, that it shall be exercised in justice and love for the highest interest of its subject. It is not autocratic, it is Divinely derived — it is not absolute, but vested in trust for the protection and development of the infant. The Divine injunction to the parent is to keep this child, and foster in him the gifts which God has bestowed upon him: the very fact that power and love are linked in this primal government of the family chief, proves that the Divine institution of Government in its germinal form was limited and confined by the paramount duty to the child, the performance of which was insured by the tender relation between parent and child. The power was entrusted to love, in order to secure the well-being of the child.

While therefore we find in the family the evidence of the fundamental truth, that "the powers that be are ordained of God,"¹ we find the qualification of this ordination, "for he is the minister of God to thee for good."² The first shows that power in government lies in grant, and is not autocratic; and the second, that it is invested, not for the benefit of the ruler, but for the good of the subject.

This is the constitution for the family government, written upon the living table of the parental heart.

§ 12. The subject of this family government is a helpless human being, a creature of God, gifted with faculties, which are his own exclusively, to which a duty is annexed in their

¹ Romans, ch. 13, 1.

2 Romans, ch. 13, 4.

use, with responsibility therefor to the Giver of them — a responsibility personal and exclusive. He holds his endowments by exclusive title in trust for God. In order to perform this trust duty, his use and direction of his powers must be by his own will, because of this sole and exclusive responsibility. This is the dogma of self-consciousness, as well as of Divine authority; for with the gift of talents to each, the injunction follows: "Occupy till I come." The endowments are not equal, but diverse; but the duty of each, the trust imposed upon, and the responsibility exacted from, each, are equal and exclusive. The right of each to self-use, for the discharge of his trust and to meet his responsibility, must therefore be exclusive, because the trust and the responsibility are personal and independent. The gifts are unequal in amount, but the right of each to his several endowments is equal to that of every other being, because each holds his right under equal and exclusive trust and responsibility to his Creator.

Lord Bacon and his menial servant were wholly unequal in their respective endowments. But the right of each to his own life, limb and liberty was equal to that of the other. The objects of rights may be unequal, but the right of each to those several objects must be perfectly equal. The cottage of the poor is not equal to the mansion of the rich; but the title to the hovel home is as impregnable as to the princely palace.

§ 13. Herein we find the true equality between men. It is the sole, exclusive and personal right of each man to the endowments each receives from his Maker. Inter homines, each man's title to these is absolute; between himself and God, he holds as trustee for his Creator. Every man for himself in absolute self-use against all intrusive control by any other man. "Who art thou, that judgest another man's servant? to his own master he standeth or falleth."¹ How can any man interfere with the exclusive right of another to do his personal duty and meet his sole and exclusive responsi-

¹ Romans, ch. XIV, 4

bility to the Divine Being? How can we lawfully control another in discharging his duty to God? In the attempt, he invades the sacred precincts of the Divine Government. No man can allow another to do so and be guiltless: for it would be treason to his trust, and destruction of his duty. He must resist this attempt, because only in freedom of action can he fulfill his Divinely appointed mission. His defense of this personal liberty, therefore, is a religious duty to God. It is not a mere right he may waive, but an imperative duty he must perform.

When this personal trust in self-use to the Divine Being is fully apprehended, it will embrace all human action, whether called secular or religious. All self-use will be regarded as religious duty. The liberty of self-use, or, in other words, the liberty of our life, will be seen to be a Divine gift to each man with which to do a Divinely imposed duty, under accountability to the Divine King. To surrender this gift of liberty, is religious treason; to defend it, religious duty.

§ 14. Liberty, which comprehensively means this exclusive right of each man to self-use — that is, the exclusive use of the Divine gifts to him, under trust and responsibility to God, does not come, therefore, through any social compact of men, or as a gift from society or from government. It is the gift of God! It is a liberty of self-use, inalienable by himself, because that would be breach of duty and surrender of the trust Divinely vested; and inalienable by any and all others, because a sacrilegious robbery of that with which he is Divinely invested.¹ Voluntary surrender is personal treason to this trust, and to deprive him of it, is to rob God's right in him. Either is destruction of the sacred trust he holds for his Maker.

§ 15. We have thus seen that, by Divine ordination, the family is the germinal society into which is ushered, by Providential methods, the infant germ of manhood, as a subject of the germinal Body-politic, the parental chief of the

¹ The language of the Declaration of Independence is in accord with this view.

family. We have further seen that this parental government, Divinely ordained, has limits on its powers, in that they must be exerted for the good of the subject; and that this subject, as a creature of God, is endowed with the liberty of life, that is, with the exclusive right of self-use as to these endowments, in discharge of his personal duty and under his exclusive responsibility to God.

It is an obvious consequence of these propositions, that the powers delegated by the Creator to this primal government, not absolutely but in trust, are limited to such exercise of these powers as shall secure to the subject the full self-use of his endowments, for the purpose for which God bestowed them — i. e., to work out his destiny in discharge of his duty in order to meet his religious responsibility to his Creator. The powers so ordained of God were given for the use and benefit of the child — to save life, not to destroy it — to promote his health and happiness — his growth and full development to matured manhood. Society was thus made for him — as a school for his training; and the family government was constituted to secure his liberty and to advance his well-being; and as there might be many children in the family, the rightful exercise of its governmental powers would be in limiting them to such restraints on its members as would best conserve the right of each to his personal liberty of self-use, free from the intrusion of others, so that each may conform his life to the purposes for which it was given to him by his Maker. And it is a clear corollary from these principles, that the power ordained to protect each of its subjects in their liberty from invasion by others, cannot be so exercised by itself as to destroy or abridge that liberty. The protector cannot assail those he was ordained to protect, and cannot destroy the liberty he was created to secure. The Divine constitution for the personal government of the family was one which ordained the delegation of limited power to the parent, to be exercised in trust for the good of the child. In it we find the model for free institutions in all ages and for all mankind.

§ 16. In § 4, ante, we defined Sovereignty to be "the rightful political power vested in the Body-politic." In what we have ascertained by our inductive method, we are prepared to see in the primal body-politic, the family, the meaning of these terms. For we have found that power in the family over the children is Divinely vested, and is not autocratic: — it is derived from God, and is not original. And we have further seen, it is only rightful when it is limited to the purpose of preserving the liberty of its members in the self-use of their respective faculties under their separate and exclusive responsible duty to God.

In this germ of society and of government, we find the organic social force restrained by Divine limitation to the exercise of only such powers as will conserve the personal liberty of its individual members, and promote their good. This is a cardinal canon of the Divine constitution of the family, the germinal society and the germinal government, ordained for men by their Creator.

Neither revelation nor reason conflicts with this canon; but both uphold it. Society and government were made for man: man was not made for them. Society was ordained as the school of our race; and government was ordained to preserve society. This Divine ordination of both for the use of man involves the negation of power in either to misuse or abuse his personal rights or his individual liberty. To do this would defeat the Divine purpose in the ordination of both. It would violate the right of God in man; and thus perpetuate a wrong, not only on man, but on his Creator.

Hence when the patria potestas, ordained of God for the family government, invested with authority limited by the right of man to his personal liberty of self-use (free from all external intrusion), with which the man is as distinctly invested by Divine ordination as the power itself transcends this limit and invades the domain of individual freedom, it usurps an authority never vested in it, and violates the rights, the protection of which was the only purpose for which it was created.

While therefore it is clear that the patria potestas is ordained of God, the ordained limits on its powers are as clear, growing out of the rights of its subjects, to conserve which is the trust purpose for which those powers were conferred. The fact of ordination of the powers that be must not be held to give Divine sanction to the claim of unlimited authority by those "powers," nor to save from condemnation the tyranny of despotic governments, which have destroyed the liberty of the individual man, which those "powers" were ordained to protect and secure.

The power of government is ordained of God, but so is the right of the man, and the "power" of the one is limited to the conservation of the other — in the primal constitution of society. This Revelation teaches, Reason sanctions and Consciousness confirms.

§ 17. It is equally illogical, and wholly contrary to reason, to infer that the patriarchal form of government which was evolved from that of the family, and all other systems of government which have grown from these, have any unlimited authority, or any power to destroy the individual liberty of their subjects. The limitations on the germinal form of government according to its original constitution, which have been indicated, follow governments in every form they may assume, and bind each and all of them to obedience to the fundamental canon already stated, to-wit: that no authority is rightful which does not conserve the personal liberty of the man and promote his individual good.

§ 18. These considerations suffice to show that, while the Body-politic is Divinely ordained to exercise power over men, yet the individual man is created by God with inalienable rights, for the security and conservation of which the Body-politic holds its powers in trust; and that these are vested not for the sole purpose of protecting the man in his self-use, but of securing to him the liberty of self-development, as well as the fruits of his self-use, embracing life, property and the pursuit of happiness.

In this view the language of Jefferson in the memorable

Declaration of Independence is essentially true: "We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."

The Body-politic is the means Divinely ordained to secure the inalienable rights of men, and is only legitimate when it promotes and is not destructive of these ends. This fixes the true relation between man and the Body-politic. It was made for his good; he was not made for its benefit. Magistrates are the trustees and servants of the people; and men can never be jurally deprived of their essential liberties by the power of government.¹ Political power and man-right stand related as trustee and beneficiary — not as master and subject. God delegated the power to govern, but he vested the right in the man. The right is primal and essential; the power is secondary and auxiliary. The right is the end; the power the means to secure it.

§ 19. It will be noted that, with some exceptions, writers on political science concede the existence of man as a creature of God. Rousseau speaks of the "binding obligations he lies under to himself."² We must regard the "binding obligations he lies under to" his God. This makes his self-preservation not only a self-obligation, but a religious duty. As a being endowed with distinct faculties and will, which are the essential of his personality, he must be sole determiner

¹ Va. Bill of Rights, Arts. 1, 2, 3; Preamble to Const. of Mass., 1780, Arts. V, VII. See like declarations

in other state charters and Constitution of United States. ² Social Compact, Bk. I, ch. 5.

of his destiny. He cannot yield this power, charged with the supreme duty, without peril to himself and treason to God. It follows inevitably, that he cannot permit the Divinely constituted guardian of this essential liberty to destroy it. As the ward of the Divine Being he must use every means to prevent government from turning its power, entrusted for his shield, into a sword for his ruin.

§ 20. In this view, the Body-politic is man's trustee — not his master. Man is a cestui que trust, not a slave. His right is God-given. Its power is Divinely intrusted for the conservation of his right. All the theories of Hobbes and his utilitarian followers, which place his title to liberty in the will of the Body-politic, or by the grace of government (Hobbes' Leviathan), or of Rousseau and others, which deduce them from a real or hypothetical contract made for him by a dead ancestry or by himself, or implied from his acquiescence, are alike false and fatal to his interests. Deriving his title from God, his claim is higher than the power of all governments. His right precedes its power; and power is God-given to guard God-given right. Man is placed by God in wardship to the Body-politic as his guardian — and the guardian's power is legitimate only when it protects, and is ultra vires when it impairs the right of the man.

§ 21. This man-right is coupled with a trust for its use —

a trust imposed on him by the Creator. When realized as such, not as a mere possession to use or not use, at the option of the holder, but to be used under the sanction of duty to the Divine Giver, it becomes an impulse to real life, that is, to self-development, to the highest possible degree. Self-direction under dictates of self-conscience is thus an imperative duty — and the enlightened human soul will be scrupulously intent on the exclusion of all external interference with performance of this truly religious duty; for all life, in this view, is strictly religious, — that is, under responsible obligation to God. And in this consideration will be seen the powerful influence of Christianity upon free institutions.

Before the Christian era, all polity was concentrated upon the construction of the State — without special regard to the right of man. The utility of the ancient systems was in the glory of the commonwealth, which conferred its gifts of right and liberty on the man — whose satisfaction with the order must be found in his membership of the state, honorable and eminent in the family of nations. Its great purpose was the development of the po/lij, not the security of the man — and his rights were subordinated to the power and glory of the state or the empire. Man was only a fraction of the mass.¹

Christianity, in its segregation of the man from the mass; in its personal demand upon his conscience; in its isolation of his responsibility; in its holding out immortal rewards for his individual conduct; and all this under a sense of obligation to the Supreme Being, — implant in the man such a profound consciousness of his accountability for his destiny as to make it a moral force, which dreads treason to the Almighty King more than all the threats of human power —

and makes "resistance to tyranny obedience to God."

It was this new inspiration of the human soul which has made modern civilization. It put into the man a sense of individual responsibility, which impelled him to a brave self-assertion of his right to liberty, as essential to his duty to God in working out his sublime destiny. This influence must be conceded by all, whether the Divinity of the system be accepted or rejected, as the great moral, social and political motive in modern progress.

This influence it is which has impelled man to challenge all power over his conscience and will; and to resist the abuse as well as the usurpation of ecclesiastical or political authority over his mind or body. It has demanded freedom of thought, of speech and of action. It has overthrown kingdoms, dethroned monarchs, changed dynasties, and rent asunder empires. These are the results of the doctrine of Christ — that it is not right for man to render to Cæsar

¹ Bluntschli, Theory of the State, ch. VI; Spencer's Justice, ch. 26.

what belongs to God — nor to obey man rather than his Maker.

This view explains the close connection between religious and civil freedom; and how the revolutions which have saved Anglo-Saxon liberty have united the civil rights of men with the freedom of the human conscience. This alliance made the English commoner cling to his civil rights with an enthusiasm which tyranny over a quickened conscience alone could arouse. Civil liberty under the inspiration of religious duty shattered the Eikon Basilike,¹ and upon the ruins of jus divinum regun, erected the edifice of constitutional government. And the historian who sees in the struggles of our race, which have evolved the free institutions of England and America, nothing but the efforts of man to assert the cold abstractions and canons of a violated social compact, has omitted to see and estimate the power of a religious enthusiasm, which feels the inspiration of loyalty for a Divine King in every blow struck for the security of personal freedom against human despotism.

§ 22. The germ of royal responsibility to law under the Hebrew Commonwealth is found in the words: "He (the king) shall write him a copy of this law in a book ... and it shall be with him, and he shall read therein all the days of his life; that he may learn to fear the Lord his God, to keep all the words of this law and these statutes, to do them: that his heart be not lifted up above his brethren, and that he turn not aside from the commandment to the right hand or to the left: to the end that he may prolong his days in his kingdom, he, and his children, in the midst of Israel."²

In this prophetic constitution for the kingly power, we see no warrant for its perpetuity or for irresponsible autocracy deduced by the Filmer school — but we find the

¹ This means "Royal Image," and was the title of a book issued after the execution of Charles I., and reported to have been written by

him. John Milton wrote in reply the "Image Smasher." 2 Deut., ch. 17, v. 18-20.

germs of modern freedom in the three-fold canon — that the king should be bound to the observance of the written law as the charter of his power and of the rights of the people; that he should not be lifted above his brethren, nor turned to the right or left from the commandment made for him as well as for them; and that the tenure of his king-ship was conditioned upon his observance of the written law of the kingdom. The Divine ordainment of government, and even of the prospective monarch (so he be not an alien, but a brother), is shown; but absolute irresponsibility and disregard of the rights of the people are not only not sanctioned, but are plainly condemned.

In the New Testament, Christ himself draws a clear distinction between rights which are subject to the civil power and those which are not.¹ In the apostolic answer to the Sanhedrim, the assertion of religious rights which the civil authorities cannot touch, is distinct and emphatic.² Paul enjoins obedience to the powers that be, as the "minister of God to thee for good," thus making government a minister who holds power in trust for the people.³ The trust purpose of political power, and the duty of human obedience, are set forth as interdependent, making the observance of both of equal obligation.⁴ And the same principle is enjoined by Peter the Apostle.⁵

The exodus of the enslaved Hebrews from the Egyptian rule under the prescriptive title of centuries; the selection of the first kings by the voice of the people; the secession of the ten tribes because of the oppression of Solomon's son, — were under Divine sanction.⁶ These facts in Jewish history reprobate the jus divinum regum, and enforce the doctrine of kingly responsibility for the duty of protecting the rights of the people. The error of the Filmer school is not in deducing from sacred history the Divine ordination of govern-

¹ Luke, ch. 20, v. 21-25; Matt, ch. 22, v. 16-21. ² Acts, ch. 4, v. 19. ³ Romans, ch. 13, v. 2-4

⁴ 1 Tim., ch. 2, v. 2.

⁵ 1 Peter, ch. 2, v. 13-17.

⁶ 1 Kings, ch. 12.

ment, but in maintaining that it was ordained with absolute, and not with limited, power — without duty, and not under trust — regardless of man-right, instead of for its protection — irresponsible and a permanent tenure, rather than conditioned upon the due observance of the law, as the constitution of the monarch. He deduces all kingly power as a transfer from the patriarchal or family government, and claims that royal authority is by Divine right, because the patria potestas was constituted by God. But his error is fundamental, when, even with the concession that the king is the successor to the father's power, he fails to see that, in the Divine constitution of the family, the parental power is not autocratic, but delegated — and not absolute, but in trust for the good of the subject.

Milton, Sidney, Locke, and all the religious civilians of the seventeenth century substantially concede the premises of the Filmer school, with the qualifications above mentioned, and thus deny utterly its absurd conclusions; not only in their writings, but in the Revolution which during the throes of half a century condemned to death one hereditary king, deposed another, and elected an alien to the throne, under a monarchy constituted on written charter, in the memorable year 1080.

§ 23. The compact theory of Locke, Rousseau, and others also fails to meet the conditions of this great problem. For as already shown, it has no historic truth, and could never have been the basis of political society. And if the non-alienability of a Divinely vested personal right has been successfully established, from the trust duty coupled with the gift, no compact could bind the parties to it which proposed to give away what was inalienable; and much less could it bind those not parties to it, and born after it was entered into. And a fortiori, the dogma of Hobbes and his followers, or of the utilitarians, is inadmissible, which makes alienation of rights to government irrevocable and forever binding, not only on the contracting generation, but upon the unconsenting posterity forever.

§ 24. The true philosophy of this vexed question then must be sought in the historic facts, which an induction has found: Society grew from the primal pair, the dual-unit of humanity; the children with them made the family, the germ of all Bodies-politic; the patria potestas, the germ of all governments, is supreme, not absolute; delegated, not autocratic; and with authority to govern, as guardian of the rights of its subjects. The family grew to a patriarchy — a union of many of these from kindred or other ties, made the nations which have filled the Earth. The Divine ordainment of the primal government therefore proves that the latter was made for man, not man for government; and that Society and Government were the Divinely constituted means for the good of men — and that no political power is legitimate which violates and does not conserve Man-Right: that as the epi/tropoj (the guardian) of Plato, it must protect and uphold the rights of men, and not assail and destroy them. From all which it follows, that when the guardian fails in duty, or wickedly destroys right, its ward may take measures to remove the faithless governor, and substitute one who will better subserve the ends and purposes of the Divine constitution. Power is not, Right is, immortal. Political power must cease when it fails to subserve the rights of man. The Patriarcha of Filmer (writing in the interest of the House of Stuart) maintained jus divinum regum. The American constitutional school bases Political Science on jus divinum hominum!

§ 25. In this statement it will be seen there is involved, as a limit on power, that it shall conserve the rights of man. It becomes proper then to define these rights of man more precisely than has been done.

If we regard the new-born member of society, with his undeveloped germs of future life, powerless, helpless and hopeless but for parental love, what are his rights which God thus intrusted to parental power?

His right to life, and to its preservation in healthful growth, is God-given. The parental power is given not for the parent's good, but linked to a duty to the child; a power which

has no title to be, if divorced from that duty. Infanticide is the exertion of parental power; but is criminal usurpation, because a violation of duty. No parental power is legitimate which trenches on the right of the child. The power is a parasite of the duty; severed from it, the power dies.

The discretion in its exercise is unlimited, except by its object. All that is bona fide exercised for that object, in the way of restraint and direction, though under false judgment, can only be corrected by him whose right is imperiled. As he grows in capacity in self-development, the parental power decreases with his expansion; and, when maturity is reached, the right to self-use is complete, and parental power, gradually decreasing hitherto, now ceases. The duty of the child to God in the matter of his life is to submit himself to the wisdom of the parent, until he reaches the point at which self-direction is safe. When that point is reached, submission to others against his own conscientious judgment is error — it may be worse. And as it was the duty of the child in his incompetency to yield to parental direction, so now, in his matured competency, it is the duty of the parent to yield his former power of control to the hands of the adult child — for as the power only sprang from a duty due to his incapacity, it must cease when the incapacity ends. If the incapacity continues in case of idiocy or insanity of the child, the parental power and the duty, of course, continues, and the man's wardship is perpetuated, for such person has not the right of self-direction; for right to do is not predicable of one who has no capacity to do.

§ 26. What are the related rights of adults in social life? and what the relation of social power to personal freedom?

The right of every man is liberty of self-use, which involves that of self-direction. This arises from his distinct individuality of being as a creature from God. If man were alone (ex hypothesi) this liberty would find no limits, except in his capacity to control external things. Within the bounds of that capacity, his will would be unconfined. This is what might be termed the liberty of isolation. But as has been

shown, this solitude is exceptional, even if it ever had reality, and perhaps never existed, save in the imagination which delineated Robinson Crusoe. Let us look at its advantages and disadvantages.

The primal motive of human life is self-love — and its object, happiness; which is the status wherein the man is in harmony with self and with the exter