LECTURE XIX.
OP CONSTITUTIONAL RESTRICTIONS ON THE POWERS OF THE SEVERAL
STATES.
WE proceed to consider the extent and effect of certain constitutional restrictions on the authority of the separate states. As the Constitution of the United States was ordained and established by the people of the United States, for their own government as a nation, and not for the government of the individual states, the powers conferred, and the limitations on power contained in that instrument, are applicable to the government of the United States, and the limitations do not apply to the state governments unless expressed in terms.1 Thus, for instance, the provision in the Constitution that private property shall not be taken for public use without just compensation, was intended solely as a limitation on the exercise of power by the government of the United States, and does not apply to the state governments, (a) The people of the respective states are left to create such restrictions on the exercise of the power of their particular governments as they may think proper; and restrictions by the Constitution of the United States, on the exercise of power by the individual states, in cases not consistent with the objects and policy of the powers vested in the Union, are expressly enumerated.
"No state," says the Constitution, (b) "shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but
(a) Barron v. The Mayor and City Council of Baltimore, 7 Peters, 243. See also In the matter of Smith, 10 Wendell, 449. (b) Art. 1, sec. 10.
1 Twitchell v. The Commonwealth, 7 Wall. 321; Pervear v. The Commonwealth, 5 Wall. 475; Withers v. Buckley, 20 How. 84; Smith v. Maryland, 18 How.
71; Fox v. Ohio, 5 How. 411. See The Justices v. Murray, 9 Wall. 274, 278; ante, 326, n. 1.
gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility. No state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, nor lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."
Most of these prohibitions would seem to speak for themselves, and not to stand in need of exposition. I shall confine myself to those cases in which the interpretation and extent of some of these restrictions have been made the subject of judicial investigation.
1. Of Bills of Credit. — Bills of Credit, within the purview of the Constitution of the United States, prohibiting the emission of them, are declared {408} to mean promissory notes or bills issued by a state government, exclusively on the credit of the state, and intended to circulate through the community for its ordinary purposes as money redeemable at a future day, and for the payment of which the faith of the state is pledged. (a) (x) The prohibition does not therefore apply to the
(a) Craig v. The State of Missouri, 4 Peters, 410. In the case of Briscoe v. The Bank of Kentucky, 11 Peters, 257, the question what were bills of credit, of which the emission was prohibited to the states, was extensively discussed. They were defined to be paper issued by the authority of a state on the faith of the state, and designed to circulate as money; and under this definition it was adjudged that a bank of the State of Kentucky, established in the name and on behalf of the state, under the direction of a president and twelve directors chosen by the legislature, and the bank exclusively the property of the state, and with a capital of two millions, and with authority to issue notes payable to bearer on demand, and receive deposits and make loans; and the notes of which bank, by a subsequent act, were to be received on executions by plaintiff, and if refused, further proceedings to be delayed on the judgment for two years, was not within the prohibition in the Constitution of the United States against the emission of bills of credit. Mr. Justice Story dissented from this decision, and said that the late Chief Justice Marshall was of opinion with him, when the same case was before the court, and argued at a preceding term; and he further said that he would not distinguish the case in principle from that of Craig v. The State of Missouri. It appears to me, with great submission to the Supreme Court, that this decision
(x) Coupons upon bonds issued by a State, which are receivable for taxes and negotiable, but which are not intended to
circulate as money, are not "bills of credit." Virginia Coupon Cases (Poindexter v. Greenhow), 114 U. S. 270
notes of a state bank, drawn on the credit of a particular fund set apart for the purpose. (b) Through all our colonial history, paper money was much in use; and from the era of our independence down to the date of the Constitution, bills of credit, issued under the authority of the confederation Congress, or of the individual states, and intended for circulation from hand to hand, were universally denominated paper money; and it was to bar the governmental issues of such a delusive and pernicious substitute for cash, that the constitutional prohibition was introduced. The issuing of such bills by the State of Missouri, under the denomination of certificates, was adjudged to be unconstitutional, though they were not made generally a legal tender, but they were, nevertheless, made receivable in payment of taxes, and by all civil and military officers in discharge of salaries and fees of office. Instruments, however, issued by or on behalf of a state, binding it to pay money at a future day, for services actually received, or for money borrowed for present use, were declared not to be bills of credit, within the meaning of the Constitution. (c)1
essentially overrules the case of Craig, and greatly impairs the force and value of the constitutional prohibition. In the case of Linn v. State Bank of Illinois, 1 Scam. 87, decided by the Supreme Court of that state in 1833, it appeared that the State Bank of Illinois was owned by the state, and authorized to issue notes or bills in small sums from twenty dollars to one dollar, drawing interest, and receivable in payment of debts due to the state; and that the legislature were pledged to redeem the bills, and creditors were stayed from collecting their debts for three years, unless they would receive the bills in payment. The court held that the analogy was so striking between that institution and the Missouri loan office, as to render the decision in Craig v. The State of Missouri in point, and binding on the states; and, consequently, it was adjudged that the act establishing the State Bank of Illinois was unconstitutional, and its notes void. And in the case of McFarland v. The State Bank, 4 Ark. 44, the Supreme Court of Arkansas held itself bound and concluded by the decision in Briscoe v. The Bank of Kentucky, though it was admitted to be inconsistent with the doctrine and decision in the prior case of Craig v. The State of Missouri. The court evidently regretted that the case of Craig had been overruled, as it contained the sound and true constitutional doctrine. The Bank of Arkansas stood on the same ground, and had the same essential qualities, and its notes were bills of credit within the decision of Craig, and not bills of credit within the decision of Briscoe, and the latter decision they held themselves bound to obey.
(b) Billis ads. The State, 2 M'Cord, 12.
(c) Craig v. The State of Missouri, ubi supra. Mr. Justice Story, in his Commentaries on the Constitution, iii. p. 19, seems to be of opinion, that, independent of long-
1 See further, as to what are not bills of credit, McCoy v. Washington County,
3 Wall. Jr. 381; Bailey v. Milner, 1 Abbott, U. S. 261; 35 Ga. 330; Darrington v.
2. Ex post Facto Laws. — In Calder v. Bull, (d) the question on the meaning of an ex post facto law, within the prohibition of the Constitution, was extensively discussed.
The legislature of Connecticut had, by a resolution or law, set aside a decree of the court of probates, rejecting a will, and directed a new hearing before the court of probates, and the point was, whether that resolution was an ex post facto law prohibited by the Constitution of the United States.
It was held that the words ex post facto laws were technical expressions, and meant every law that made an act done before the passing of the law, and which was innocent when {409} done, criminal; or which aggravated a crime, and made it greater than it was when committed; or which changed the punishment, and inflicted a greater punishment than the law annexed to the crime when committed; or which altered the legal rules of evidence, and received less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender. The Supreme Court concluded that the
continued practice from the time of the adoption of the Constitution, the states would not, upon a sound construction of the Constitution, if the question was res integra, be authorized to incorporate banks, with a power to circulate bank paper as currency, inasmuch as they are expressly prohibited from coining money. He cites the opinions of Mr. Webster, of the Senate of the United States, and of Mr. Dexter, formerly Secretary of War, on the same side. But the equal, if not the greater authority of Mr. Hamilton, the earliest Secretary of the Treasury, may be cited in support of a different opinion, and the contemporary sense and uniform practice of the nation are decisive on the question. Bank paper, like checks and negotiable notes, circulates entirely upon private credit, and is not a coercive circulation. It is at every person's option to receive or reject it. The Constitution evidently had in view bills of credit issued by law, in the name and on the credit of the state, and intended for circulation from hand to hand as money, and of which our history furnished so many pernicious examples. The words of the Constitution are, that no state shall emit bills of credit. The prohibition does not extend to bills emitted by individuals, singly or collectively, whether associated under a private agreement for banking purposes, as was the case with the Bank of New York prior to its earliest charter, in the winter of 1791, or acting under a charter of incorporation, so long as the state lends not its credit, or obligation, or coercion, to sustain the circulation. In the case of Briscoe v. The Bank of the Commonwealth of Kentucky, this question was put at rest, by the opinion of the court that there was no limitation in the Constitution on the power of the states to incorporate banks, and their notes were not intended to be inhibited, nor were considered as bills of credit. 11 Peters, 257, 345, 349. (d) 3 Dallas, 386.
Bank of Ala., 13 How. 12 (same principle as Briscoe v. Bank of Ky.); as to
what are, City N. Bank v. Mahan, 2 La. Ann. 751.
law or resolution of Connecticut was not within the letter or intention of the prohibition, and was, therefore, lawful. (a) Afterwards, in Fletcher v. Peck, (b) it was observed that an ex post facto law was one which rendered an act punishable in a manner in which it was not punishable when it was committed. This definition is distinguished for its comprehensive brevity and precision, and it extends to laws passed after the act, and affecting a person by way of punishment of that act, either in his person or estate. Ex post facto laws relate to penal and criminal proceedings, which impose punishments or forfeitures, and not to civil proceedings, which affect private rights retrospectively.1 Retro-
(a) Strong v. The State, 1 Blackf. (Ind.) 193, S. P.
(b) 6 Cranch, 138.
1 Ex post Facto Laws. — This is one of the great constitutional questions which has been reopened and much discussed in cases arising out of the rebellion.
An act of Congress provided that no one should be admitted as an attorney or counsellor to the bar of any United States court, or should be allowed to appear by virtue of any previous admission, unless he should have first taken an oath that he had not done certain acts of treason against the United States, had not held office under, or yielded voluntary support to, any authority hostile to them, and would support and bear true allegiance to the Constitution. It was held that this act, which was, of course, directed at those who had taken part in the rebellion, was both a bill of attainder and an ex post facto law, and therefore unconstitutional. Ex parte Garland, 4 Wall. 333. See Ex parte Law, 35 Ga. 285. So, in Cummings v. Missouri, 4 Wall. 277, a provision in a state constitution that no clergyman should be permitted to teach, preach, or solemnize marriage, unless he should first take an oath that he had not done certain specified acts, some of which at the time of doing them were not criminal, was held void for like reasons. See, however, the very able dissenting opinion of Mr. Justice Miller, in which the Chief Justice and
Swayne and Davis, JJ., concurred, p. 382. But these were both cases of persons who had previously been admitted to their respective callings; and Mr. Pomeroy (Const. Law, § 532) thinks that as to future applicants the requirement of the test oath was constitutional, and cites Ex parte Magruder, Supreme Ct. D. C., to that effect, § 534. Further cases on the subject are Ex parte Law, 35 Ga. 285; The Murphy & Glover Test Oath Cases, 41 Mo. 339.
But in several cases it has been held that those who had taken part in the rebellion might be constitutionally deprived of the right to vote. Anderson v. Baker, 23 Md. 531; Ridley v. Sherbrook, 3 Coldw. 569; Blairw. Ridgely, 41 Mo. 63. And it is very clear that an act exempting all persons from prosecution for acts done by virtue of military authority of the United States or of the state during the late war, and made pleadable in bar of all actions then instituted or thereafter to be against any person for such acts, was constitutional. Drehman v. Stifle, 8 Wall. 595.
A law imposing a less penalty than a former law which it repeals is not ex post facto as to offences committed before its passage. Commonwealth v. Wyman, 12 Cush. 237; State v. Arlin, 39 N. H. 179, 180. As to the general question, what is
spective laws and state laws, devesting vested rights, unless ex post facto, or impairing the obligation of contracts, do not fall within the prohibition contained in the Constitution of the United States, however repugnant they may be to the principles of sound legislation. (c) (x)
(c) Calder v. Bull, 3 Dallas, 386: Satterlee v. Matthewson, 2 Peters, 413; Watson v. Mercer, 8 id. 88.
an ex post facto law, see Hartung v. People, 22 N. Y. 95; State v. Sullivan, 14 Rich. (S. C.) 281; State v. Paul, 5 R. I. 185; Lord v. Chadbourne, 42 Me. 429; Coffin v. Rich, 45 Me. 507; Rich v. Flanders, 39 N. H. 304; Gut v. The State, 9 Wall. 35. [A statute removing the bar of the statute of limitations where it has already run is ex post facto. Moore v. State, 43 N. J. L. 203, overruling S. C. 42 N. J. L. 208; Dinckerlocker v. Marsh, 75 Ind. 548. Held contra, as to an extension of the time allowed by the statute where it has not yet run. Com. v. Duffy, 96 Pa. St.
506; People v. Lord, 12 Hun, 282. A law requiring less evidence to convict than when the act was committed is ex post facto. United States v. Hughes, 8 Ben. 29. In Kring v. Missouri, 107 U. S. 221, a person was convicted of murder in the second degree; and the conviction was set aside on his appeal, which operated as an acquittal of the crime of murder in the first degree. Held, that a statute changing the effect of such reversal was ex post facto. Though the change may be one of procedure, it affects a substantial right of defendant, and this is the test. — B.]
(x) See The Energia, 66 Fed. Rep. 604; Sears v. Mahoney, id. 860; United States v. 64 Barrels of Spirits, 3 Cliff. 308; Kille v. Reading Iron Works, 134 Penn. St. 225; Mitchell v. Campbell, 19 Oregon, 198; McLane v. Bonn, 70 Iowa, 752; Demoville v. Davidson County, 87 Tenn. 214; Stetson v. Hall, 86 Maine, 110; Foster v. Police Commissioners, 102 Cal. 483; Re Wright, 3 Wyom. 478; People v. Spicer, 99 N. Y. 225; People v. Hayes (140 N. Y. 484), 37 Am. St. Rep. 572, and note; Pepole v. Maxwell, 83 Hun, 157; People v. Hawkins, 31 N. Y. S. 115. It is competent for Congress to impose taxes retrospectively. Stockdale v. Ins. Cos., 20 Wall. 323. A statute which, after annual settlements, authorized county auditors in Ohio to extend back, for four years, inquiries as to property returnable for taxation, was held constitutional. Sturges v. Carter, 114 U. S. 511. But penalties added for such previous years are within a constitutional
prohibition against retroactive laws. Gager v. Prout, 48 Ohio St. 89; Metz v. Hagerty (Ohio), 38 N. E. Rep. 11; Ryan v. State, 5 Neb. 276. So penalties which have accrued for non-payment of a tax, but which have been swept away by a repeal of the tax law, cannot be revived by new legislation. State v. Jersey City, 37 N. J. L. 39. An additional penalty may lawfully be prescribed for an act previously unlawful. Mackey v. Holmes, 52 Fed. Rep. 722.
An act which imposes an increased punishment or penalty is ex post, facto as to offences committed before its enactment. In re Medley, 134 U. S. 160; In re Savage, id. 176; see Fourth Nat. Bank v. Francklyn, 120 U. S. 747; Holden v. Minnesota, 137 U. S. 483; People v. McNulty, 93 Cal. 427; Ex parte Hunt, 28 Tex. App. 361. An habitual criminal Act, made applicable to previous and subsequent offences, does not violate constitutional prohibitions against both ex post
3. The States cannot control the Exercise of Federal Power. — The
state legislatures cannot annul the judgments, nor determine the extent of the jurisdiction, of the courts of the Union. This was attempted by the legislature of Pennsylvania, and declared to be inoperative and void by the Supreme Court of the United States, in the case of The United States v. Peters. (d) Such a power, as we have heretofore seen, necessarily resides in the supreme judicial tribunal {410} of the nation. It has also been adjudged that no state court has authority or jurisdiction to enjoin a judgment of the Circuit Court of the United States, or to stay proceedings under it. This was attempted by a state court in Kentucky, and declared to be of no validity by the Supreme Court of the United States, in M'Kim v. Voorhies. (a)l
(d) 5 Cranch, 115. (a) 7 Cranch, 279.
1 Riggs v. Johnson County, 6 Wall. 166, stated ante, 322, n. 1; The Mayor v. Lord, 9 Wall. 409; Supervisors v. Durant, ib. 415; Amy v. The Supervisors of Des Moines, 11 Wall. 136; ante, 401, n. 1.
The last statement in the text of this page (*410) has been twice referred to and denied to be law by the Supreme
Court. Freeman v. Howe, 24 How. 450, 458; Buck v. Colbath, 3 Wall. 334, 341. The rule now laid down is, "that whenever property has been seized by an officer of the court, by virtue of its process, the property is to be considered as in the custody of the court, and under its control for the time being; and that no other
facto and retroactive laws. Blackburn v. State, 50 Ohio St. 428; Com'th v. Graves, 155 Mass. 163; Sturtevant v. Com'th, 158 Mass. 598. A State statute providing that every colored child previously born shall be the legitimate child of his colored father, if acknowledged by him, though retrospective in conferring a privilege, is not invalid as an ex post facto law or as impairing the obligation of contracts. Callahan v. Callahan, 36 S. C. 454. Vested rights under contracts cannot be impaired by new enactments. Koshkonong v. Burton, 104 U. S. 668; Stetson v. Hall, 86 Maine, 110. A constitutional amendment making changes in the trial court after the crime was committed is not an ex post facto law: Duncan v. Missouri, 152 U. S. 377; nor is one passed after a crime was committed, and before trial, enlarging the capacity of witnesses: Hopt
v. Utah, 110 U. S. 574; nor is a law changing the trial court: State v. Welch, 65 Vt. 50; State v. Cooler, 30 S. C. 105; or the place of trial: Cook v. United States, 138 U. S. 157; or the parties necessary to suits upon contracts: Tompkins v. Forrestal, 54 Minn. 119; or one partially doing away with grand juries: State v. Hoyt, 4 Wash. St. 818; Lybarger v. State, 2 id. 552; see People v. Tisdale, 57 Cal. 104; or one affecting only the remedy. Drake v. Jordan, 73 Iowa, 707. Curative statutes are not objectionable on this ground when the defect is not in matter of substance. Smith v. Hard, 59 Vt. 13; Bartlett v. Wilson, id. 23; Johnson v. Wells County Com'rs, 107 Ind. 15; Coles v. Washington County, 35 Minn. 124; Thweatt v. Hopkinsville Bank, 81 Ky. 1.
No state tribunal can interfere with seizures of property made by revenue officers, under the laws of the United States; nor interrupt, by process of replevin, injunction, or otherwise, the exercise of the authority of the federal officers; and any intervention of state authority for that purpose is unlawful. This was so declared by the Supreme Court in Slocum v. Mayberry. (b) Nor can a state court issue a mandamus to an officer of the United States. This decision was made in the case of M'Cluny v. Silliman, (c) and it arose in consequence of the Supreme Court in Ohio sustaining a jurisdiction over the register of the land office of the United States, in respect to his ministerial acts as register, and claiming a right to award a mandamus to that officer to compel him to issue a final certificate of purchase. The principle declared by the Supreme Court was, that the official conduct of an officer of the government of the United States can only be controlled by the power that created him.
If the officer of the United States who seizes, or the court which awards the process to seize, has jurisdiction of the subject-matter, then the inquiry into the validity of the seizure belongs exclusively to the federal courts. But if there be no jurisdiction in the instance in which it is asserted, as if a marshal of the United
(b) 2 Wheaton, 1. Any restraint by state authority on state officers in the execution of the process of their courts is altogether inoperative upon the officers of the United States in the execution of the mandates which issue to them. Baldwin, J., in McNutt v. Bland, 2 How. 17.
(c) 6 Wheaton, 598.
court has a right to interfere with that possession, unless it be some court which may have a direct supervisory control over the court whose process has first taken possession, or some superior jurisdiction in the premises," Miller, J., in Buck v. Colbath, supra. See Biggs v. Johnson County, 6 Wall. 166, 196; Taylor v. Carry), 20 How. 583, 595. On this principle it was held that replevin did not lie in a state court against a marshal of the United States for property attached by him on mesne process from a United States court against a third person. Freeman v. Howe, supra (reversing S. C. 14 Gray, 566); Munson v. Harroun, 34 Ill. 422. See also Taylor v. Carryl, supra. But on the
other hand it has been decided, qualifying some expressions in Freeman v. Howe, that trespass does lie in a state court against a marshal for taking goods under a writ of attachment from a United States court, which did not belong to the defendant in the attachment suit. Buck v. Colbath, supra; Ward v. Henry, 19 Wis. 76; Booth v. Ableman, 18 Wis. 495.
Trover will lie in the state courts against a postmaster for improperly detaining a newspaper, although such detention is under color of the laws of the United States, and the regulations of the post-office department. Teall v. Felton, 12 How. 284; affirming S. C. 1 Comst. 537.
States, under an execution in favor of the United States against A, should seize the person or property of B, (d) then the state courts have jurisdiction to protect the person and the property so illegally invaded; and it is to be observed that the jurisdiction of the state courts in Rhode Island was admitted by {411} the Supreme Court of the United States, in Slocum v. Mayberry, upon that very ground.
In the case of The United States v. Barney, (a) the district judge of Maryland carried to a great extent the exemption from state control of officers or persons in the service of the United States, and employed in the transportation of the mail. He held that an innkeeper had no lien on the horses which he had fed, and which were employed in the transportation of the mail. The act of Congress of March, 1790, prohibited all wilful obstruction of the passage of the mail; and a claim for debt would not justify the stopping of the mail, or the means necessary to transport it, either upon principles of common law, or upon the statute. The judge stated, in this case, that even a stolen horse found in the mail stage could not be seized; nor could the driver, being in debt, or having committed an offence, be arrested, in such a way as to obstruct the passage of the mail. But in a subsequent case in the Circuit Court of Pennsylvania, (b) it was held that the act of Congress was not to be so construed as to endanger the public peace and safety. The carrier of the mail, driving through a populous city with dangerous rapidity, and contrary to a municipal ordinance, may be stopped, and the mail temporarily detained by an officer of the city. So, if the officer had a warrant against a felon in the stage, or if the driver should commit murder in the street, and then place himself on the mail stage box, he would not be protected from arrest, though a temporary stoppage of the mail might be the consequence.1 The public safety in one case is of more moment than the public inconvenience which it might produce in the other. (c)
(d) Bruen v. Ogden, 6 Halst. 370; Dunn v. Vail, 7 Martin (La.), 416.
(a) 3 Hall's Law Journal, 128.
(b) United States v. Hart, 1 Peters, C. C. 390.
(c) A toll-gate keeper, on a national road passing through a state, cannot stop the coach carrying the United States mail, for a refusal to pay toll. The remedy, if any, is by action against the contractor. Hopkins v. Stockton, 2 Watts & Serg. 163.
1 United States v. Kirby, 7 Wall. 482.
But while all interference on the part of the state authorities with the exercise of the lawful powers of the national government has been in most cases denied, there is one case in which any control by the federal over the state {412} courts, other than by means of the established appellate jurisdiction, has equally been prevented. In Diggs and Keith v. Wolcott, (a) it was decided generally, that a court of the United States could not enjoin proceedings in a state court; and a decree of the Circuit Court of the United States for the District of Connecticut was reversed, because it had enjoined the parties from proceeding at law in a state court. So in Ex parte Cabrera, (b) it was declared that the circuit courts of the United States could not interfere with the jurisdiction of the courts of a state. These decisions are not to be contested; and yet the district judge of the Northern District of New York, in the spring of 1823, in the case of Lansing and Thayer v. The North River Steamboat Company, enjoined the defendants from seeking in the state courts, under the acts of the state legislature, the remedies which those acts gave them. This would appear to have been an assumption of the power of control over the jurisdiction of the state courts, in hostility to the doctrine of the Supreme Court of the United States. (c) In the case of Kennedy v. Earl of Cassillis, (d) an injunction had been unwarily granted, in the English Court of Chancery, to restrain a party from proceeding in a suit in the Court of Sessions in Scotland, where the parties were domiciled. It was admitted that the Court of Sessions was a court of compe-
(a) 4 Cranch, 179. S. P. in Kittredge v. Emerson, [15 N. H. 227,] and in Dudley's Case, C. C. U. S. for Pennsylvania, 1 Pennsylvania Law Journal, 302; Carrell v. F. & M. Bank, Har. (Mich.) Ch. 197. Neither the United States nor the state courts can interfere or control the operations of each other. The courts of the United States can only interfere by their appellate jurisdiction, and the state courts have no power to interfere by injunction. 3 Story's Comm. on the Const. 624, 625.
(b) 1 Wash. 232; United States v. French, 1 Gall. 1, S. P.
(c) The assumed jurisdiction was not afterwards sustained; and a bill in equity in a state court for an injunction, though against an alien or citizen of another state, was held not to be such a suit as was removable to a circuit court of the United States. 1 Paige, 183.
(d) 2 Swanst. 313. But in the subsequent case of Bushby v. Munday, 5 Mad. 297, the Vice-Chancellor granted an injunction, under special circumstances, to restrain proceedings in the Court of Sessions in Scotland. The New York Court of Chancery has disclaimed any such jurisdiction, in respect to a foreign suit previously commenced, though it was in possession of jurisdiction over the person of the party. Mead v. Merritt, 2 Paige, 402.
tent jurisdiction, and an independent foreign tribunal, though subject to an appeal, like the Court of Chancery, to the House of Lords. If the Court of Chancery could in that way restrain proceedings in the Court of Sessions, the Sessions might equally enjoin proceedings in chancery, and thus stop all proceedings in either court. Lord Eldon said he never meant to go further with the injunction than the property in England; and he, on motion, dissolved it in toto. (e)
{413} 4. The States cannot impair the Obligation of Contracts.1 (x) — We come next to a prohibition of great moment,
(e) It has been assumed and asserted by official authority, that the judicial power of the United States had no power to enjoin the executive branch of the government from the execution of a constitutional duty or of a constitutional law, any more than they could arrest the legislature itself in passing the law. Opinions of the Attorneys-General, i. 507, 508; [ante 296, n. 1; 323, n. 1.]
1 Post, 419, n. 1.
(x) The following impair the obligation of contracts: Legislation affecting the previous exemption of a railroad from taxation until its net earnings equal a certain per cent: Com'th v. Philadelphia & E. R. Co., 164 Penn. St. 252; Barnes v. Kornegay, 62 Fed. Rep. 671; Williamson v. New Jersey, 130 U. S. 189; see Louisville Water Co. v. Clark, 143 U. S. 1; New Orleans City & L. R. Co. v. New Orleans, id. 192; St. Paul, M. & M. Ry. Co. v. Todd County, 142 U. S. 282.; Justices' Opinion, 58 N. H. 623; a law decreasing the legal rate of interest, as to prior contracts: Getto v. Friend, 46 Kansas, 24, 31; Butler v. Rockwell, 17 Col. 290; Robertson v. Van Cleave, 129 Ind. 217; or taking away the right to foreclose previous mortgages: O'Brien v. Krenz, 36 Minn. 136; see Edwards v. Johnson, 105 Ind. 594; a law abolishing a private corporation, like the State board of agriculture, and transferring its property to another institution: Downing v. State Board, 129 Ind. 443; see Essex Public Road Board v. Skinkle, 140 U. S. 334; Tammany Water Works v. New Orleans Water Works, 120 U. S. 64; Stein v. Bienville W. S. Co., 141
U. S. 67; Citizens' Water Co. v. Bridgeport Hydraulic Co., 55 Conn. 1; a law changing the scheme of a public charitable bequest without the consent of all parties in interest: Gary Library v. Bliss, 151 Mass. 364; an act transferring the right to fix water or gas rates from the water or gas company to the city or town: New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; New Orleans Water Works Co. v. Rivers, id. 674; Santa Anna Water Co. v. San Buenaventura, 56 Fed. Rep. 339; see Walla Walla Water Co. v. Walla Walla, 60 id. 957; a law impairing the State's own contracts: Georgia Pen. Co. v. Nelms, 71 Ga. 301; or materially altering unconditional corporation charters: Bryan v. Board of Education, 151 U. S. 639; Eagle Ins. Co. v. State, 153 U. S. 446; Machias Boom Proprietors v. Sullivan, 85 Maine, 343; In re Brooklyn, 143 N. Y. 596; Chicago, B. & Q. R. Co. v. Jones, 149 Ill. 361; Barnes v. Kornegay, 62 Fed. Rep. 671; Smith v. Atchison, &c., R. Co., 64 id. 272; Virginia Dev. Co. v. Crozer I. Co., 90 Va. 126; Shields v. Clifton H. L. Co., 94 Tenn.123. A State constitution is a law within
and affecting extensively and deeply the legislative authority of the states. There is no prohibitory clause in the Constitution
the meaning of this clause of the Federal constitution, and a State can no more impair the obligation of a contract by her organic law than by her statutes. New Orleans Gas Co. v. Louisiana Light Co, 115 U. S. 650, 672, Sheehan v. Treasurer, 33 N. Y. S. 428. When a foreign railroad corporation is empowered by a State statute to construct and operate its road through the State on payment of a certain annual sum and other conditions, which it fulfils, the contract is impaired by a later Act which requires it to deduct from interest on its bonds, payable in the State of its creation, and pay to the State, a tax imposed on the bonds owned by residents of the State New York, L. E. & W. R. Co. v Pennsylvania, 153 U. S. 628.
See also Shreveport v Cole, 129 U. S. 36, McGahey v. Virginia, 135 U. S. 662, People v. Squire, 145 U. S. 175; Brown v. Smart, id. 454; Hamilton Gas Co v. Hamilton, 146 U. S. 258; People v. Cook, 148 U. S. 397, Bier v. McGehee, id. 137, Bryan v. Board of Education, 151 U. S. 639, New York, L. E. & W. R. Co. v. Pennsylvania, 153 U. S. 628, Baltimore Trust Co v. Baltimore, 64 Fed Rep. 153, Tuttle v. Block, 104 Cal. 443; Dowell v. Talbot Paving Co., 138 Ind. 675
The obligation of contracts is not impaired by the repeal of a lottery franchise Stone v. Mississippi, 101 U. S. 814, Commonwealth v. Douglass (Ky ), 24 S. W. Rep. 233, by a State statute admittedly valid, but construed erroneously Central Land Co. v. Lardley, 159 U. S. 103; by a change in a State constitution, restricting the payment of claims against the State Baltzer v. State, 109 N. C. 187; 104 N. C. 265, by an insolvent law discharging prior debts Pomeroy v. Gregory, 66 Cal 574, Porter v. Imus, 79 Cal 183, Chicago Life Ins. Co. v. Needles, 113 U. S. 574; Sloane v. Chiniquy, 22 Fed. Rep. 213, Keating v. Vaughn, 61
Texas, 518, by a law reducing the rate of interest on judgments upon contracts which do not provide for interest . Morley v. Like Shore & M. S. Ry. Co., 146 U. S. 162, by laws requiring insurance companies already chartered to make annual statements of its condition. Eagle Ins. Co. v. Ohio, 153 U. S. 446; by a change in the laws relating to marriage State v. Tutty, 41 Fed. Rep. 753, by a law authorizing the abolition of grade crossings at large expense New York & N. E. R. Co. v. Bristol, 151 U. S. 556, or requiring a railroad to be fenced Minneapolis & St. L. Ry. Co. v. Emmons, 149 U. S. 364; an act changing the salaries of public officers: Commonwealth v. Bailey, 81 Ky. 395, Harvey v. Rush County Commissioners, 32 Kansas, 159, by laws affecting municipal corporations New Orleans v. New Orleans Water-works, 142 U. S. 79, see Citizens' St. R. Co. v. City Ry. Co., 56 Fed. Rep. 746, Baltimore T. & G. Co. v. Baltimore, 64 id. 153, or exercising the right of eminent domain Atlanta Uni. v. Atlanta, 93 Ga. 468; Baltimore & F. T. Road v. Baltimore, &c. Co. (Md ), 31 Atl. Rep 854; or enlarging mechanics' liens Albnght v. Smith, 2 S. D. 577, 587, by a change in decisions of the courts upon the faith of which con tracts have been made Springer v Citizens Natural Gas Co. 145 Penn. St. 430; Allen v. Allen, 95 Cal. 184, see Wood v. Brady, 150 U. S. 18, by the abolition of dower Hamilton v. Wirsch, 2 Wash 223, by a change of remedies, or in the rules of evidence Davies H. L. Co. v. Gottschalk, 81 Cal 641, State v. New Orleans City & L. R. Co., 42 La Ann 550, Ward v. Hubbard, 62 Texas, 559, People v. Common Council, 140 N. Y. 300, Henry v. Henry, 31 S. C. 1, Texas Mex. Ry. Co. v. Locke, 74 Texas, 370, Biddle v. Hooven, 120 Penn. St. 221, Reid v. Hart, 45 Ark. 41; Stockwell v. Robinson, 9 Houst (Del ), 313. The contract, to raise a Federal ques-
which has given rise to more various and able discussions, or more protracted litigation, than that which denies to any state the light to pass any law impairing the obligation of contracts. I shall endeavor to give a full and accurate view of the judicial decisions defining and enforcing this prohibition.
The case of Fletcher v. Peck (a) first brought this prohibitory clause into direct discussion. The legislature of Georgia, by an act of 7th of January, 1795, authorized the sale of a large tract of wild land, and a grant was made, by letters-patent, in pursuance of the act, to a number of individuals, under the name of the Georgia Company. Fletcher held a deed from Peck for a part of this land, under a title derived from the patent; and in the deed Peck had covenanted that the State of Georgia was lawfully seised when the act was passed, and had good right to sell, and that the letters-patent were lawfully issued, and the title has not since been legally impaired. The action was for breach of covenant; and the breach assigned was, that the letters-patent were void, for that the legislature of Georgia, by act of 13th February, 1796, declared the preceding act to be null and void, as being founded in fraud and corruption. One of the questions presented to the Supreme Court upon the case was, whether the legislature of Georgia could constitutionally repeal the act of 1795, and rescind the sale made under it.
{414} The court declared, that when a law was in its nature a contract, and absolute rights have vested under that cou-
(a) 6 Cranch, 87.
tion, must be a valid one, capable of being impaired. New Orleans v. New Orleans Water-works, 142 U. S. 79 A judgment for a tort is not a contract under this constitutional restriction Freeland v. Williams, 131 U. S. 405, McAfee v. Covington, 71 Ga. 272 Statutes which limit the creditor's right to enforce his claim against the debtor's property are part of all subsequent contracts and do not impair their obligation Denny v. Bennett, 128 U. S. 489. A subsequent legislature may revoke a contract or grant made by a previous one when not within the limits of the powers possessed by the State. Coxe
v. State, 144 N. Y. 396. Modes of procedure in the courts of a state are so far within its control that a particular remedy, existing at the time of the making of a contract, may be abrogated altogether without impairing the obligation of the contract, if another and equally adequate remedy for the enforcement of that obligation remains or is substituted for the one taken away. Conn. Life Ins. Co. v. Cushman, 108 U. S. 51, 64, McGahey v. Virginia, 135 U. S. 662, 693, New Orleans, &c, R. Co. v. New Orleans, 157 U. S. 219, 224, Walker v. Glenn (Kansas), 40 Pac. Rep. 316.
tract, a repeal of the law could not devest those rights, nor annihilate or impair the title so acquired. A grant was a contract within the meaning of the Constitution. The words of the Constitution were construed to comprehend equally executory and executed contracts, for each of them contains obligations binding on the parties. A grant is a contract executed, and a party is always estopped by his own grant. A party cannot pronounce his own deed invalid, whatever cause may be assigned for its invalidity, and though that party be the legislature of a state. A grant amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A grant from a state is as much protected by the operation of the provision of the Constitution, as a grant from one individual to another; and the state is as much inhibited from impairing its own contracts, or a contract to which it is a party, as it is from impairing the obligation of contracts between two individuals. It was accordingly declared that the estate held under the act of 1795, having passed into the hands of a bona fide purchaser for a valuable consideration, the State of Georgia was constitutionally disabled from passing any law whereby the estate of the plaintiff could be legally impaired and rendered void.
The next case that brought this provision in review before the Supreme Court was that of The State of New Jersey v. Wilson. (a) It was there held, that if the legislature should declare by law that certain lands, to be thereafter purchased for the use of the Indians, should not be subject to any tax, such a legislative act amounted to a contract, which could not be rescinded by a subsequent legislature. In that case, the colonial legislature of New
(a) 7 Cranch, 164. In Brewster v. Hough, 10 N. H. 138, it was held that the legislature of a state could not effectually devest itself of the power of taxation, for it was essentially a power of sovereignty or eminent domain, and the court considered the case of New Jersey v. Wilson might be sustained on the ground that it was in the nature of a treaty with the Indians. Ch. J. Marshall, in the case of Providence Bank v. Billings, 4 Peters, 561, considered that it was not to be inferred, without positive stipulation, that a state had agreed to relinquish its power of taxation. But in Gordon v. Appeal Tax Court, 3 How. 133, it was adjudged that the legislature of a state might make a binding contract not to be impaired, to refrain from imposing any tax upon a bank or its stockholders. This would seem to remove the doubt suggested in the case in New Hampshire, and to show that a state may, in relation to any particular subject, and for reasons of public policy or consideration, contract that the sovereign power shall not be exercised. This point is ably discussed in the American Law Magazine for January, 1846, art. 4.
Jersey, in 1758, authorized the purchase of lands for the Delaware {415} Indians, and made that stipulation. Lands were accordingly purchased, and conveyed to trustees for the use of the Indians, and the Indians released their claim to other lands, as a consideration for this purchase. The Indians occupied these lands until 1803, when they were sold to individuals under the authority of an act of the legislature, and, in 1804, the legislature repealed the act of 1758, exempting those lands from taxation. The act of 1758 was held to be a contract, and the act of 1804 was held to be a breach of that contract, and void under the Constitution of the United States.1
The Supreme Court went again, and more largely, into the consideration of this delicate and interesting constitutional doctrine, in the case of Terret v. Taylor. (a) It was there held that a legislative grant, competently made, vested an indefeasible and irrevocable title. There is no authority or principle which could support the doctrine that a legislative grant was revocable in its own nature, and held only durante bene placito. Nor can the legislature repeal statutes creating private corporations, or confirming to them property already acquired under the faith of previous laws, and by such repeal vest the property in others, without the consent or default of the corporators. Such a proceeding would be repugnant to the letter and spirit of the Constitution, and to the principles of natural justice.
But it was in the great case of Dartmouth College v. Woodward, (b) (x) that the inhibition upon the states to impair by law the obligation of contracts received the most elaborate discussion, and the most efficient and instructive application. It was there held that the charter granted by the British crown to the trustees of Dartmouth College in 1769 was a contract within the meaning of the Constitution, and protected by it; and that the college was a private charitable institution not liable to the control of the legislature; {416} and that the act of the legislature of New Hampshire, altering the charter in a material respect, without the consent of the corporation, was an
(a) 9 Cranch, 43.
(b) 4 Wheaton, 518.
1 Post, 419, n. 1.
(x) See the reviews of this case in 27 Am. L. Rev. 71, 525; 28 id. 356, 440; 6 Harv. L. Rev. 161, 213.
act impairing the obligation of the charter, and consequently unconstitutional and void.1
The chief justice, in delivering the opinion of the court, observed, that the provision in the Constitution never had been understood to embrace other contracts than those which respect property, or some object of value, and confer rights which may be asserted in a court of justice. Dartmouth College was a private eleemosynary institution, endowed with a capacity to take property for objects unconnected with government, and its funds were bestowed by individuals on the faith of the charter, and those funds consisted entirely of private donations. The corporation was not invested with any portion of political power, nor did it partake, in any degree, in the administration of civil government. It was the institution of a private corporation for general charity. The charter was a contract to which the donors, the trustees of the corporation, and the crown, were the original parties, and it was made on a valuable consideration, for the security and disposition of property. The legal interest, in every literary and charitable institution, is in trustees, and to be asserted by them, and they claim or defend in behalf of the religion, charity, and education, for which the corporation was created, and the private donations made. Contracts of this kind, creating these charitable institutions, are most reasonably within the purview and protection of the Constitution. This contract remained unchanged by the Revolution; and the duties, as well as the powers, of the government devolved on the people of New Hampshire; but the act of that state which was complained of transferred the whole power of governing the college from trustees appointed according to the will of the founder expressed in the charter, to the executive of New Hampshire. The will of the state was substituted for the will of the donors, in every essential operation of the college. The charter was reorganized in such a manner as {417} to convert a literary institution, moulded according to the will of its founders, and placed under the control of private literary men, into a machine entirely subservient to the will of government. This was, consequently, subversive of that contract, on the faith of which the donors invested their property; and the act of the legislature
1 Post, 419, n. 1.
of New Hampshire was therefore held to be repugnant to the Constitution of the United States.
The same course of reasoning, and leading to the same conclusion, was adopted and expressed by some of the other judges.
In the opinion given by Judge Story, he added some new and interesting views of the nature of the contracts which the Constitution intended to protect. He denied the power of the legislature to dissolve even the contract of marriage, without a breach on either side, and against the wishes of the parties. A dissolution of the marriage obligation, without any default or assent of the parties, may as well fall within the prohibition of the Constitution, as any other contract for a valuable consideration. A man has as good a right to his wife as to the property acquired under a marriage contract; and to devest him of that right without his default, and against his will, would be as flagrant a violation of the principles of justice as the confiscation of his estate, (a) The prohibitory clause he also considered to extend to other contracts besides those where the parties took for their own private benefit. A grant to a private trustee, for the benefit of a particular cestui que trust, or for any special, private, or public charity, cannot be the less a contract, because the trustee takes nothing for his own benefit. Nor does a private donation, vested in a trustee for objects of a general nature, thereby become a public trust, which the government may, at its pleasure, take from the trustee. Government cannot revoke a grant even of its own funds, when given to a private person, or to a corporation, for special uses. It has no other remaining authority, but what is judicial, to enforce the proper administration of the trust. Nor {418} is a grant less a contract, though no beneficial interest accrues to the possessor. Many a franchise, whether corporate or not, may, in point of fact, be of no exchangeable value to the owners, and yet they are grants within the meaning and protection of the Constitution. All incorporeal
(a) In Maguire v. Maguire, 7 Dana, 184, Ch. J. Robertson considered the contract of marriage to be sui generis, and unlike ordinary or commercial contracts. It was publici juris, and created by the public law, subject to the public will, and not to that of the parties, who could not dissolve it by mutual consent. It was much more than a contract. It established fundamental domestic relations, and he did not think it was embraced by the constitutional interdiction of legislative acts impairing the obligation of contracts. This appears to be the soundest construction of the constitutional provision alluded to. [Green v. The State, 58 Ala. 190.]
hereditaments, as immunities, dignities, offices, and franchises, are rights deemed valuable in law, and whenever they are the subject of a contract or grant, they are just as much within the reach of the Constitution as any other grant. All corporate franchises are legal estates. They are powers coupled with an interest, and corporators have vested rights in their character as corporators. Upon this doctrine it was insisted that the trustees of Dartmouth College had rights and privileges under the charter, of which they could not be devested by the legislature without their consent.
The act of the legislature did impair their rights, and vitally affect the interest of the college under the charter. If a grant of franchise be made to A, in trust for a special purpose, the grant cannot be revoked, and a new grant made to A, B, and C, for the same purpose, without violating the obligation of the first grant. If property be vested by grant in A and B, for the use of a general charity, or private eleemosynary foundation, the obligation of the grant is impaired when the estate is taken from their exclusive management, and vested in them in common with ten other persons.
I have thus stated the substance of the argument of the Supreme Court in this celebrated case, and it contains one of the most full and elaborate expositions of the constitutional sanctity of contracts to be met with in any of the reports. The decision in that case did more than any other single act, proceeding from the authority of the United States, to throw an impregnable barrier around all rights and franchises derived from the grant of government; and to give solidity and inviolability to the literary, charitable, religious, and commercial institutions of our
country.
{419} The same prohibitory clause in the Constitution came again under discussion in the case of Green v. Biddle. (a) It was observed by the court, that the objection to a law, on the ground of its impairing the obligation of contracts, could never depend upon the extent of the change which the law effects in it. Any deviation from its terms, by postponing or accelerating the period of performance which it prescribes, imposing conditions not expressed in the contract, or dispensing with the performance
(a) 8 Wheaton, 1; 4 Miller (La.), 94, S. P. See also Bronson v. Kinzie, 1 How. 811, and infra, iv. 434, S. P.
of those which are expressed, however minute or apparently immaterial in their effect upon the contract, or upon any part or parcel of it, impairs its obligation. To deny any remedy under a contract, or by burdening the remedy with new conditions and restrictions, to make it useless or hardly worth pursuing, is equally a violation of the Constitution. (b) Upon this principle it is that if a creditor agrees with his debtor to postpone the day
(b) It seemed to be admitted, in the case of Bronson v. Kinzie, that there might be legitimate alterations of the remedy, if they did not seriously impair the remedy. Something to the same extent was said by Ch. J. Marshall, in Sturges v. Crowninshield; but the admission is rather dangerous, from its liability to misconstruction and abuse; and still more so is the language of the court in the case of Evans v. Montgomery, 4 Watts & Serg. 218. In the case of Woodfin v. Hooper, 4 Humph. (Tenn.) 13, it was held that the right of the creditor to imprison a debtor, existing at the time of the formation of the contract, was no part of the contract, and that remedy might afterwards be repealed, and the defendant even discharged from prison, under an execution upon the contract. But to take away by legislative act the existing remedies for enforcing the obligation of the contract, so as to leave the creditor without redress, would be a mockery of justice, and repugnant to the Constitution of the United States. The courts do not undertake to go so far, nor do they undertake to draw the line between remedies that may and remedies that may not be taken away. The danger is, that the permission may be used so as to abolish all efficient remedies — Utor permisso — et demo unum, demo etiam unum, dum cadat. It is unfortunate that the loose language, in some cases, of the Supreme Court of the United States has encouraged the state legislatures to deal in discretion with lawful remedies existing when contracts were made. The better doctrine is, that all effectual remedies affecting the interests and rights of the owner, existing when the contract was made, become an essential ingredient in it, and are parcel of the creditor's right, and ought not to be disturbed. The constitution of New Jersey of 1844 (art. 4, see. 7), declares that the legislature shall not deprive a party of any remedy for enforcing a contract which existed when the contract was made. This is a wise provision, giving additional and material securities to the sanctity and efficacy of contracts. All suspension by statute of remedies, or any part thereof, existing when the contract was made, is more or less impairing its obligation. The true doctrine of the Constitution on this subject is to be found in Bronson v. Kinzie, McCracken v. Haywood, and Lancaster Saving Institution v. Reizart, infra, iv. 434, n. (c). In the case of Chadwick v. Moore, 8 Watts & Serg. 49, it was held that a statute of Pennsylvania, in 1842, suspending for a year a sale on execution for less than two thirds of the appraised value, was not unconstitutional. Mr. Ch. J. Gibson, who delivered the opinion of the court, seemed to hold that a temporary restraint on the remedy, when not to an unreasonable degree, was within the sound discretion of the legislature, and he preferred such a qualified doctrine to one that went for the absolute integrity of the constitutional principle in the entire existing remedy. Vide infra, 455, 456. And see James v. Stull, 9 Barb. 482; Baugher v. Nelson, 9 Gill, 299; Stocking v. Hunt, 3 Denio, 274; Smith v. Morse, 2 Cal. 524. The sounder state doctrine, as it seems to me, is that declared by Ch. J. Bronson, in the case of Quackenbush v. Danks, 1 Denio, 128; for, as he observes, laws which in form go only to the remedy, may have the practical effect of nullifying the contract.
of payment, or in any other way to change the terms of the contract, without the consent of the surety, the latter is discharged, although the change was for his advantage.
The material point decided in that case was, that a compact between two states was a contract within the constitutional prohibition. The terms "contract" and "compact" were synonymous; and a contract is an agreement of two or more parties to do or not to do certain acts. The court declared that the doctrine had been already announced and settled, that the Constitution embraced all contracts executed and executory, and whether between individuals, or between a state and individuals; and that a state had no more power to impair an obligation into which she herself had entered, than she had to impair the contracts of individuals.1
1 (a) What impairs the Obligation of a Contract? — In the prolonged litigation as to the validity of certain western county bonds, the Supreme Court have gone very far in their efforts to uphold the sanctity of contracts. It is said that if bonds are executed or contracts made after and in reliance upon a construction of the laws and constitution of the state by the highest state court, in accordance with which such bonds or contracts would be valid, "their validity and obligation cannot be impaired" by a subsequent contrary decision. Gelpeke v. Dubuque, 1 Wall. 175; Havemeyer v. Iowa County, 3 Wall. 294; Thomson v. Lee County, ib. 327; Lee County v. Rogers, 7 Wall. 181; Chicago v. Sheldon, 9 Wall. 50. This principle, if sound, seems to stand, not on the Constitution, as the above language might indicate, but on the general grounds of justice on which it was put by Taney, C. J., in Ohio Life Ins. Co. v. Debolt, 16 How. 416, 431. But as Mr. Justice Miller points out, 1 Wall. 211, the legal doctrine is that the law was always the same as expounded by the later decision, not that the state court makes a new law (see Stockton v. Dundee Manuf. Co., 7 C. E. Green (22 N. J. Eq.) 56); and if, as admitted, the United States court would
follow the later state decision as to contracts made after it, it is hard to see how they can logically avoid doing so as to those made before. However, in the above cases there were prior decisions of the state courts which were made the ground for disregarding their subsequent determinations. In a later case this element was wanting. For when a city issued bonds and afterwards the state courts construed a statute in force at the time of issue so as practically to take away the remedy of the creditors, the Supreme Court overruled the construction, although there were no state decisions in accordance with their view. Butz v. Muscatine, 8 Wall. 575; ante, 342, n. 1.
A more obvious decision is that a declaratory law cannot modify the settled construction of a statute, as to contracts already made under it. Post, 456, n. (c);• Reiser v. William Tell Savings Ass, 39 Penn. St. 137; ib. 154; Dundas v. Bowler, 3 McL. 397; [Koshkonong v. Burton, 104 U. S. 668; McNichol v. U. S. Rep. Agency, 74 Mo. 457.] See Lambertson v. Hogan, 2 Barr, 22. And it is equally clear that a change of constitution cannot release a state from contracts made under a constitution which permits them
Another case, which led to a very extensive inquiry into the operation and effect of the constitutional prohibition upon the
to be made. Dodge v. Woolsey, 18 How. 331; Railroad Co. v. McClure, 10 Wall. 511; White v. Hart, 13 Wall. 646, 652. Another case on a state constitution is Cummings v. Missouri, 4 Wall. 277, stated ante, 409, n. 1.
(b) What Contracts. — There is only room for a brief statement of other points which have arisen under this head. There are numerous later decisions upholding the principle of the Dartmouth College case, that a state cannot impair the obligation of its own contracts. Thus it has been repeatedly decided that a state may disable itself by contract from exercising its taxing power in particular cases; and perhaps the question is to be regarded as finally settled, although some of even the later decisions were not unanimous. Home of the Friendless v. Rouse, 8 Wall. 430; ib. 441; Wilmington R. R. v. Reid, 13 Wall. 264; Wright v. Sill, 2 Black, 544; Jefferson Bank v. Skelly, 1 Black, 436; State Bank of Ohio v. Knoop, 16 How. 369; Ohio L. Ins. Co. v. Debolt, ib. 416; Dodge v. Woolsey, 18 How. 331; McGee v. Mathis, 4 Wall. 143; Von Hoffman v. City of Quincy, ib. 535, 554. [University v. People, 99 U. S. 309.] And see Christ Church v. Philadelphia, 24 How. 300, stated below. So, a provision in the charter of a bank, the stock of which is owned by the state, that the bills of the bank shall be received in payment of debts due the state, is a contract, and cannot be repealed as to bills already issued. [Keith v. Clark, 97 U. S. 454]; Woodruff v. Trapnall, 10 How. 190. See Paup. v. Drew, ib. 218; Trigg v. Drew, ib. 224; Furman v. Nichol, 8 Wall. 44. So, a statute making the stock of the shareholders in a railroad liable for the debts of the corporation cannot be repealed as to existing creditors. Hawthorne v. Calef, 2 Wall. 10. See Curran v. Arkansas, 15
How. 304; below. So, the lien of one who has lent money for a canal, on the faith of an act pledging the same with its tolls, &c., cannot be devested or postponed by a subsequent act. Wabash & Erie Canal Co. v. Beers, 2 Black, 448. So, the power of local taxation, given to a city by a statute authorizing it to issue bonds and to use this power to pay them, cannot be abridged as to those who have bought bonds issued under the act. Von Hoffman v. Quincy, 4 Wall. 535; see 10 Wall. 653; but see Gilman v. Sheboygan, 2 Black, 510; [Louisiana v. Pillsbury, 105 U. S. 278; Durkee v. Board of Liquidation, 103 U. S. 646; Saloy v. New Orleans, 33 La. Ann. 79; State v. Brown, 29 La. Ann. 863. See New Orleans v. Morris, 105 U. S. 600. A statute passed as an execution of the police power of a state may be repealed at any time. Stone v. Mississippi, 101 U. S. 814; Crescent City, &c. Co. v. New Orleans, 33 La. Ann. 934. For the origin and history of the clause found in most state statutes reserving the power to alter, amend, or repeal charters, see Greenwood v. Freight Co., 105 U. S. 13. Such reservation does not give the right to impose taxes which were provided against in the charter. Asylum v. New Orleans, 105 U. S. 362. See also Railroad Co. v. Georgia, 98 U. S. 359; Weidenger v. Spruance, 101 Ill. 278. The extent of this reserved power was considered in the Sinking Fund Cases, 99 U. S. 700. The question arose under the acts incorporating the Union Pacific Railroad Company, in which the power was reserved to Congress at any time to "alter, amend, or repeal this act." It was admitted that such reserved power did not include a power to take away property which had been acquired under the act. Nor could amendments be made which were contrary to the original scope and
states not to pass laws impairing the obligation of contracts, was that of Sturges v. Crowninshield. (c) The defendant was sued
(c) 4 Wheaton, 122.
object of the incorporation. Railroad Co. 17. Maine, 96 U. S. 499; Shields v. Ohio, 95 U. S, 319. — B.]
On the other hand, an appointment to a public office for a definite term at a fixed salary is not a contract within the protection of the constitution, Butler v. Pennsylvania, 10 How. 402; Conner v. Mayor of New York, 1 Seld. 285; People v. Devlin, 33 N. Y. 269; Swann v. Buck, 40 Miss. 268, 302; Coffin v. State, 7 Porter (Ind.), 157; Barkers. Pittsburgh, 4 Barr, 49; nor is a limited exemption from taxation for service in the volunteer militia, People v. Roper, 35 N. Y. 629; nor, it seems, are legislative grants of power to public municipal corporations. The People v. Pinckney, 32 N. Y. 377. [But a contract made by a state with an individual, whereby the state is to pay a certain sum for definite services, is within the protection of the Constitution. Hall v. Wisconsin, 103 U. S. 5; infra, (c). —
B.] So, the grant of a ferry right to such a corporation may be repealed at any time. East Hartford v. Hartford Bridge Co., 10 How. 511. See further, Darlington v. Mayor of New York, 31 N. Y. 164. But see Atkins v. Randolph, 31 Vt. 226. (Otherwise, of a like grant to a private person. McRoberts v. Washburne, 10 Minn. 23.) Again, the mere incorporation of a turnpike company without any express agreement not to charter another in its neighborhood, does not preclude a state from doing so. Turnpike Co. v. State, 3 Wall. 210; Hartford Bridge Co. v. Union Ferry Co., 29 Conn. 210; post, iii. 459, n. (a). (Otherwise, where there is an express contract. The Binghamton Bridge, 3 Wall. 51.) A simple enactment without consideration that "the real property now belonging to Christ Church Hospital, so long as the same shall continue
to belong to said hospital, shall be and remain free from taxes," is not a contract protected by the Constitution, Christ Church v. Philadelphia, 24 How. 300; nor is a state bounty law, Salt Company v. East Saginaw, 13 Wall. 373; nor is a state license (e. g. to sell liquors), although a fee was paid for it, Calder v. Kurby, 5 Gray, 597; State v. Holmes, 38 N. H. 225; Metropolitan Board of Excise v. Barrie, 34 N. Y. 657. A statute allowing a state to be sued may be modified by a subsequent act imposing further conditions, even as to suits already begun. Beers v. Alabama, 20 How. 527; Bank of Washington v. Arkansas, ib. 530. Of course, when, as is now usual, a power to repeal or alter the charter of a company is reserved by general law or the special act of incorporation, a subsequent repeal or alteration will be constitutional. In re Oliver Lee & Co.'s Bank, 21 N. Y. 9; In re Reciprocity Bank, 22 N. Y. 9; State v. Mayor of Jersey City, 2 Vroom (31 N. J.), 575; State v. Miller, ib. 521; Comm. v. Eastern R. R., 103 Mass. 254. See, as to state insolvent laws, 422, n. 1. As to marriage, see ii. 107, n. 1.
(c) Distinction between the Contract and the Remedy. — See ii. 463, n. 1; Hawthorne v. Calef, 2 Wall. 10; Von Hoffman v. Quincy, 4 Wall. 535, stated above. In the last named case it is said that if these doctrines were res integræ, the soundness of the reasoning which maintains a distinction between the contract and the remedy might perhaps well be doubted. But they are regarded as settled. (4 Wall. 554.) See the remarks of Cockburn, C. J., as to the statute of limitations. Harris v. Quine, L. R. 4 Q. B. 653, 657. But see Aust. Jurisp. Lect. 45, 3d ed. 788; Pomeroy's Const. Law, § 609 et seq.
The objections to the distinction, if
in one of the federal courts upon two promissory notes given in March, 1811, and he pleaded his discharge under an insol-
sound, are diminished by the decisions in which Bronson v. Kinzie, supra, n. (b), is followed. Butz v. Muscatine, 8 Wall. 575, 583, stated above. To take away all remedy is of course unconstitutional, White v. Hart, 13 Wall. 646; and it has been held that a statute of Alabama, authorizing a redemption of mortgaged property in two years after a sale under a decree, was void as to sales made under mortgages executed before the act was passed. Howard v. Bugbee, 24 How. 461. So a state law depriving the creditors of a bank of all legal process against its real property, affects the remedy in such a way as to impair the obligation of the contract. Curran v. Arkansas, 15 How. 304, 319. See Hawthorne v. Calef, 2 Wall. 10, stated above; Danks v. Quackenbush, 1 Comst. 129. But see Morse v. Goold, 1 Kern. 28; Mede v. Hand, 5 Am. L. Reg. N. S. 82; Rockwell v. Hubbell, 2 Dougl. (Mich.) 197; Cusic v. Douglas, 3 Kansas, 123; Root v. McGrew, ib. 215. So the stay laws passed in many southern states in consequence of the late war have been generally held unconstitutional. Wood v. Wood, 14 Rich. (S. C.) 148; State v. Carew, 13 id. 498; Coffman v. Bank of Kentucky, 40 Miss. 29; Burt v. Williams, 24 Ark. 91; Bennett v. Worthington, ib. 487; White v. McKee, 19 La. Ann. 111; Barnes v. Barnes, 8 Jones (N. C.), 366; Taylor v. Stearns, 18 Gratt. 244; Penrose v. Erie Canal Co., 56 Penn. St. 46, 49. But see Ex parte Pollard, 40 Ala. 77; Watson v. Stone, ib. 451. [Any law which lessens or impairs the efficacy of the remedy to enforce the obligation of a contract as it existed when the contract was entered into, is void. Louisiana v. New Orleans, 102 U. S. 203; Memphis v. United States, 97 U. S. 293; Edwards v. Kearzey, 96 U. S. 595; McClain v. Easley, 4 Baxt. 520; Hillebert v. Porter, 28
Minn. 496. So a law which adds a new condition precedent to the enforcement of the contract. Olmstead v. Kellogg, 47 Iowa,,460. But a law which merely changes the form of the remedy, or destroys one of two or more equally effective remedies, is valid. Tennessee v. Sneed, 96 U. S. 69; Munday v. Rahway, 43 N. J. L. 338; Long's App., 87 Pa. St. 114; Watts v. Everett, 47 Iowa, 269; Newark Savings Inst. v. Forman, 33 N. J. Eq. 436 (see note of reporter). A law limiting the time within which suits may be brought on existing causes of action is valid, if a reasonable time after the passage of the act be allowed to begin such suits. Koshkonong v. Burton, 104 U. S. 668; Terry v. Anderson, 95 U. S. 628; Sohn v. Waterson, 17 Wall. 596. So a statute of limitations may be repealed. Pearsall v. Kenan, 79 N. C. 472. It has also been held that where a right has been given without any means to enforce it (e. g. a right to sue a state without any right of execution), the right itself may be taken away. Railroad Co. v. Tennessee, 101 U. S. 337. See generally on this subject, Oliver v. McClure, 28 Ark. 555; United States v. Lincoln Co., 5 Dill. 184; National Bank v. Sebastian Co., ib. 414. The restriction against impairing contracts does not apply to public laws, — e. g., locating a county seat. Newton v. Commissioners, 100 U. S. 548. It does not apply to public officers. Wyandotte v. Drennan, 46 Mich. 478; Donohue v. County of Will, 100 Ill. 94; Opinion of the Justices, 117 Mass. 603. — B.]
On the other hand, an act limiting the time for suits on judgments obtained in the courts of other states before its passage to two years is valid. Bank of Alabama v. Dalton, 9 How. 522. See Bacon v. Howard, 20 How. 22; Christmas v. Russell, 5 Wall. 290; Curtis v. Whitney,
vent act of New York, passed in April, {420} 1811. This insolvent act was retrospective, and discharged the debtor upon his single petition, and upon his surrendering his property in the manner therein prescribed, without the concurrence of any creditor, from all his pre-existing debts, and from all liability and responsibility by reason thereof.
The Chief Justice, in the opinion which he delivered on behalf of the court, admitted, that until Congress exercised the power to pass uniform laws on the subject of bankruptcy, the individual states may pass bankrupt laws, provided those laws contain no provision violating the obligation of contracts. It was admitted that the states might by law discharge debtors from imprisonment, for imprisonment was no part of the contract, but only a means of coercion. It was also admitted that they might pass statutes of limitation, for such statutes relate to the remedy, and not to the obligation of the contract. (a) It was further stated by the court, that the insolvent laws of far the greater number of the states only discharged the person of the debtor, and left the obligation to pay in full force, and to this the Constitution was not opposed. But a law which discharged the debtor from his contract to pay a debt by a given time, without performance, and released him without payment entirely from any future obligation to pay, impaired, because it entirely discharged the obligation of that contract, and, consequently, the discharge of the defendant, under the act of 1811, was no bar to the suit.
The court held that the obligation of a contract was not ful-
(a) In the case of Bumgardner v. Circuit Court, 4 Mo. 50, it was decided that a statute directing a stay of execution on judgments was unconstitutional, both as it regarded the constitution of Missouri and of the United States.
13 Wall. 68; see further, as to statutes of limitations, Bruce v. Schuyler, 4 Gilm. (Ill.) 221; Edwards v. McCaddon, 20 Iowa, 520; Berry v. Ransdall, 4 Met. (Ky.) 292. It has even been held that an act prohibiting any action on a promise to pay a debt from which the debtor had been discharged in bankruptcy, unless such promise was in writing, was valid as to promises made before the act, but sued on afterwards. Kingley v. Cousins, 47 Maine, 91. So an act abolishing impris-
onment for debt may be made applicable to existing contracts. Bronson v. Newberry, 2 Dougl. (Mich.) 38; Donnelly v. Corbett, 3 Seld. 500; Oriental Bank v. Freeze, 18 Maine, 109; Fisher v. Lacky, 6 Blackf. (Ind.) 373, [Penniman's Case, 103 U. S. 714; Ware v. Miller, 9 S. C. 13] So a statute abolishing distress for rent is valid as to leases made before the act was passed. Conkey v. Hart, 4 Kern. 22; Van Rensselaer v. Snyder, 3 Kern. 299.
filled by a cessio bonorum, for the parties had not merely in view the property in possession when the contract was made, but its obligation extended to future acquisitions; and to release them from being liable impaired the obligation of the contract. There was a distinction, in the nature of things, between the obligation of a contract, and the remedy to enforce that obligation, and the latter might be modified, as the wisdom of the legislature should direct. But the Constitution intended to restore and preserve public {421} confidence completely. It intended to establish a great principle, that contracts should be inviolable.
The case in which this decision was made was one in which the contract was existing when the law was passed; and the court said that their opinion was confined to the case. A distinction has been taken between the case of a contract made before, and one made after, the passing of the act. It was taken by the Supreme Court of New York, in Mather v. Bush, (a) and by the Chief Justice of Massachusetts, in Blanchard v. Russell, (b) and was relied on as a sound distinction by the Court of Chancery of New York, in Hicks v. Hotchkiss. (c) The doctrine of these cases is, that an insolvent act in force when the contract was made did not, in the sense of the Constitution, impair the obligation of that contract, because parties to a contract have reference to the existing laws of the country where it is made, and are presumed to contract in reference to those laws. It is an implied condition of every contract, that the party shall be absolved from its performance if the event takes place which the existing law declares shall dispense with the performance. The decision in Sturges v. Crowninshield is supposed to be consistent with that distinction, when it establishes the principle, that an insolvent act, discharging a debtor from his contract existing when the law passed, so that his future acquisitions could not be touched, is unconstitutional, and the discharge obtained under it void.
But the Supreme Court of the United States, in M'Millan v. M'Neill, (d) went a step further, and held that a discharge under a state insolvent law existing when the debt was contracted
(a) 16 Johns. 233. (x) (c) 7 Johns. Ch. 297.
(b) 13 Mass. 1.
(d) 4 Wheaton, 209.
(x) Also 8 Am. Dec. 313, and note.
was equally a law impairing the obligation of contracts, and equally within the principle declared in Sturges v. Crowninshield. This was a discharge under the insolvent law of a different government from that in which the contract was made. It remains yet to be settled, whether it be lawful for a state to pass an insolvent law, {422} which shall be effectual to discharge the debtor from a debt contracted after the passing of the act, and contracted within the state making the law. The general language of the court would seem to reach even this case; but the facts in these cases decided do not cover this ground, and the cases decided are not authority to that extent. (a) It will be perceived that the power of the states over this subject is, at all events, exceedingly narrowed and cut down; and, as the decisions now stand, the debt must have been contracted after the passing of the act, and the debt must have been contracted within the state, and between citizens of the state, or else a discharge will not extinguish the remedy against the future property of the debtor. (b)1
(a) In the case of Bronson v. Kinzie, 1 How. 311, it was conceded that contracts made subsequent to the stay laws of Illinois were to be governed by them, if made to be executed in the state; for every state may prescribe the legal and equitable obligations of a contract to be made and executed within it.
(b) In Smith v. Parsons, 1 Ohio, 236, and in Hempstead v. Read, 6 Conn. 480, the power of the states over contracts was understood and declared to be confined within the precise limits mentioned in the text. See also ii. 392, 393. The result of the decisions, says Judge Story (3 Comm. Const. U. S. 15, 256), is, that state insolvent laws lawfully apply, (1) to all contracts made within the state, between citizens of the state; (2) they do not apply to contracts made within the state, between a citizen of the state and a citizen of another state; (3) nor to contracts not made within the state; and the contracts so protected are equally so from prospective as well as retrospective legislation. But if a creditor out of the state voluntarily makes himself a party to the proceedings under the insolvent law of the state, and accepts a dividend, he is bound by
1 State Insolvent Laws. (x) — Baldwin v. Hale, 1 Wall. 223; Same v. Bank of Newbury, ib. 234, have done much to settle the law on this point. B., a citizen
of Massachusetts, made a note in Boston, payable there to H., a citizen of Vermont. After the date of the note, and before suit brought, B. obtained a discharge under
(x) In Massachusetts a voluntary assignment in pais for the benefit of creditors may be set aside as a fraudulent conveyance or preference under the State insolvent law. Steel Edge Stamping & R. Co. v. Manchester S. Bank, 163 Mass. 252. In Maryland, such a voluntary conveyance,
if it is designed to serve, and does serve, precisely the same end as the insolvent law, is not repugnant thereto unless tainted with actual fraud on the part of both the debtor and the trustee. Pfaff v. Prag, 79 Md. 369. See 8 Harvard L. Rev. 265.
And while on this point it may not be amiss to observe that the cessio bonorum of the Roman law, introduced by Julius Caesar, and which prevails at present in most parts of the continent of Europe, only exempted the person of the debtor from imprisonment. It did not release or discharge the debt, nor exempt the future acquisitions of the debtor from execution for the debt. (c) The English statute of 32 Geo. II., commonly called the Lords Act, and the more recent English statutes of 33 Geo. III., 1
his own act, and is deemed to have waived his extra-territorial immunity. In Satterlee v. Matthewson, 2 Peters, 380, the Supreme Court of the United States held that no part of the Constitution of the United States applied to a state law which devested rights which were vested by law in an individual, provided its effects be not to impair the obligation of a contract. It was further held that retrospective laws were not within the constitutional prohibition, provided they did not impair the obligation of contracts, or partake of the character of ex post facto laws. It has also been decided that a state government may tax state banks, eo nomine, at discretion, and that it would not be a violation of the contracts creating the banks, for no contract was to be implied not to impose such a tax. Providence Bank v. Billings, 4 Peters, 514. It has been adjudged in Louisiana and Mississippi, that a state law requiring a bank to receive at par, though under par, its own notes, in payment of debts due to it, is constitutional. 12 Rob. (La.) 125; 3 Smedes & Marsh. 661.
(c) According to the Spanish law (Partidas, 1. 3, tit. 15, part 5), the debtor's property, acquired subsequently to the cessio bonorum, was only liable so far as it exceeded the amount necessary for his support. But the law of Louisiana contains no such exception. 3 Martin (La.), 588; 4 id. 292, 293.
his state insolvent laws, which were in force when the note was made. The payee took no part in the insolvency proceedings, and it was held that this discharge was no bar to a suit by him in the Circuit Court of Massachusetts. Scribner v. Fisher, 2 Gray, 43, was overruled. See also Gilman v. Lockwood, 4 Wall. 409; Kelley v. Drury, 9 Allen, 27; Donnelly v. Corbett, 3 Seld. 500; Crow v. Coons, 27 Mo. 512; Beer v. Hooper, 32 Miss. 246; Easterly v. Goodwin, 35 Conn. 279; Poe v. Duck, 5 Md. 1; Whitney v. Whiting, 35 N. H. 457; Stevenson v. King, 2 Cliff. 1; Hawley v. Hunt, 27 Iowa, 303; Felch v. Bugbee, 48 Me. 9. It has been held further, that a discharge under like circumstances is no bar to a suit in the courts of the state granting the discharge. (The United States court would rather seem to have held an opposite opinion in the cases
cited; and see the dissenting opinion of Hunt, C. J., 39 N. Y. 345.) Soule v. Chase, 39 N. Y. 342; Kelley v. Drury, 9 Allen, 27. And it does not matter that the debt has passed into judgment. Worthington v. Jerome, 5 Blatchf. 279; Easterly v. Goodwin, 35 Conn. 279. But a discharge in Massachusetts will not be prevented from barring a contract made with a citizen of that state by his becoming a citizen of another state. Stoddard v. Harrington, 100 Mass. 87. Compare Hawley v. Hunt, 27 Iowa, 303. And it has been held that a Massachusetts discharge is a bar to an action on a contract between two citizens of that state, although it was made and to be performed in another state. Marsh v. Putnam, 3 Gray, 551. See Whitney v. Whiting, 35 N. H. 457, 472.
Geo. IV., 3 Geo. IV., and 5 Geo. IV., have gone no further than to discharge the debtor's person; {423} and it may be laid down as the law of Germany, France, Holland, Scotland, England, &c., that insolvent laws are not more extensive in their operation than the cessio bonorum of the civil law. (a) In many parts of Germany, as we are informed by Huberus and Heineccius, (b) a cessio bonorum does not even work a discharge of the debtor's person, and much less of his future property. The cession under the Roman law did not extend to protect the debtor from personal responsibility, for penalties accruing on the commission of crimes. Si in ære non habeat, in pelle luit. But in Germany the cessio bonorum has the severe operation of depriving the insolvent of his remedy for a personal trespass, committed prior to the cession, so far as pecuniary compensation is in question. (c)
5. The States cannot pass Naturalization Laws. — By the Constitution of the United States, Congress have power to establish a uniform rule of naturalization. It was held, in the Circuit Court of the United States at Philadelphia, in 1792, in Collet v. Collet, (d) that the state governments still enjoy a concurrent authority with the United States upon the subject of naturalization, and that though they could not contravene the rule established by Congress, or "exclude those citizens who had been made such by that rule, yet that they might adopt citizens upon easier terms than those which Congress may deem it expedient to impose." But though this decision was made by two of the judges of the Supreme Court, with the concurrence of the district judge of Pennsylvania, it is obvious that this opinion {424} was hastily and inconsiderately declared. If the construction given to the Constitution in this ease was the true one, the provision would be, in a great degree, useless, and the policy of it defeated. The very purpose of the power was exclusive. It was to deprive the states individually of the power of naturalizing aliens according to their own will and pleasure, and
(a) Code, 7, 71, 1; Dig. 42, 3, 4, and 6; Voet, ad Pand. 42. 3. 8; Heinecc. Op. v. 620; vi. 384, 387; Code de. Commerce, No. 568; Répertoire Universel et Raisonné de Jurisprudence, par Merlin, tit. Cession de Biens; Esprit des Lois, i. 114; 2 Bell's Comm. 580-597; 16 Johns. 244, note.
(b) Hub. Prælec. ii. 1454; Heinecc. Elem. Jur. Civ. secund. ord. Pand. pp. 6, 1, 42, tit. 3; Elem. Jur. Ger. lib. 2, tit. 13, sec. 387.
(c) Voet, ad Pand. 42, 3, 10. (d) 2 Dallas, 294.
thereby giving them the rights and privileges of citizens in every other state. If each state can naturalize upon one year's residence, when the act of Congress requires five, of what use is the act of Congress, and how does it become a uniform rule?
This decision of the Circuit Court may be considered as, in effect, overruled. In the same circuit court, in 1797, Judge Iredell intimated, that if the question had not previously occurred, he should be disposed to think that the power of naturalization operated exclusively, as soon as it was exercised by Congress. (a) And in the Circuit Court of Pennsylvania, in 1814, it was the opinion of Judge Washington, that the power to naturalize was exclusively vested in Congress. (b) Afterwards, in Chirac v. Chirac, (c) the Chief Justice of the United States observed, that it certainly ought not to be controverted, that the power of naturalization was vested exclusively in Congress. In Houston v. Moore, (d) Judge Story mentioned the power in Congress to establish a uniform rule of naturalization as one which was exclusive, on the ground of there being a direct repugnancy or incompatibility in the exercise of it by the states. The weight of authority, as well as of reason, may, therefore, be considered as clearly in favor of this latter construction.1 (x)
{425} 6. The States cannot tax National Banks or Stocks. — The inability of the States to impede or control, by taxation
(a) United States v. Villato, 2 Dallas, 370.
(b) Golden v. Prince, 3 Wash. 313.
(c) 2 Wheaton, 269. (d) 5 Wheaton, 49.
1 [The obscurity on this subject will be removed by attending to the distinction between local rights of citizenship within a state and citizenship of the United States according to the Constitution. Undoubtedly citizenship at large, in the sense of the Constitution, can be conferred on a foreigner only by the naturalization laws of Congress. But each state, in the exercise of its local and reserved sovereignty, may place foreigners or other persons on
a footing with its own citizens, as to political rights and privileges to be enjoyed within its own dominion. But state regulations of this character do not make the persons on whom such rights are conferred citizens of the United States, or entitle them to the privileges and immunities of citizens in another state. Dred Scott's Case, 19 How. 339. — c.] See the Fourteenth Amendment to the Constitution of the United States.
(x) Apart from the appellate jurisdiction, Congress, under its constitutional authority to establish a uniform rule of naturalization, cannot require the State
courts to act upon applications for naturalization. State v. Judges (N. J.), 32 Atl. Rep. 743. See State v. Norris, 37 Neb. 299.
or otherwise, the lawful institutions and measures of the national government, was largely discussed and strongly declared in the case of M'Culloch v. The State of Maryland. (a) In that case the State of Maryland had imposed a tax upon the Branch Bank of the United States established in that state, and assuming the bank to be constitutionally created and lawfully established in that state, the question arose on the validity of the state tax. It was adjudged that the state governments had no right to tax any of the constitutional means employed by the government of the Union to execute its constitutional powers, nor to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress, to carry into effect the powers vested in the national government.
To define and settle the bounds of the restriction of the power of taxation in the states, and especially when that restriction was deduced from the implied powers of the general government, was a great and difficult undertaking; but it appears to have been, in this instance, most wisely and most successfully performed. It was declared by the court, that it was not to be denied that the power of taxation was to be concurrently exercised by the two governments; but such was the paramount character of the Constitution of the United States, that it had a capacity to withdraw any subject from the action even of this power; and it might restrain a state from any exercise of it which may be incompatible with, and repugnant to, the constitutional laws of the Union. The great principle that governed the case was, that the Constitution, and the laws made in pursuance thereof, were supreme, and that they controlled the constitution and laws of the respective states, and could not be controlled {426} by them. It was of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their influence. A supreme power must control every other power which is repugnant to it. The right of taxation in the states extends to all subjects over which its sovereign power extends, and no further. The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission; but it does not extend to those means which are employed by Congress to carry into execution their constitutional
(a) 4 Wheaton, 316.
powers. The power of state taxation is to be measured by the extent of state sovereignty, and this leaves to a state the command of all its resources, and the unimpaired power of taxing the people and property of the state. But it places beyond the reach of state power all those powers conferred on the government of the Union, and all those means which are given for the purpose of carrying those powers into execution. This principle relieves from clashing sovereignty; from interfering powers; from a repugnancy between a right in one government to pull down what there is an acknowledged right in another to build up; from the incompatibility of a right in one government to destroy what there is a right in another to preserve. The power to tax would involve the power to destroy, and the power to destroy might defeat and render useless the power to create. There would be a plain repugnance in conferring on one government the power to control the constitutional measures of another, which other, with respect to those very measures, was declared to be supreme over that which exerts the control. If the right of the states to tax the means employed by the general government did really exist, then the declaration that the Constitution and the laws made in pursuance thereof should be the supreme law of the land would be empty and unmeaning declamation. If the states might tax one instrument employed by the government in the execution of its powers, they might tax {427} every other instrument. They might tax the mail; they might tax the mint; they might tax the papers of the custom-house; they might tax judicial process; they might tax all the means employed by the government, to an excess which would defeat all the ends of government.
The claim of the states to tax the Bank of the United States was thus denied, and shown to be fallacious; and that there was a manifest repugnancy between the power of Maryland to tax, and the power of Congress to preserve, the institution of the Branch Bank. A tax on the operations of the bank was a tax on the operations of an instrument employed by the government of the Union to carry its powers into execution, and was consequently unconstitutional. A case could not be selected from the decisions of the Supreme Court of the United States, superior to this one of M'Culloch v. The State of Maryland, for the clear and satisfactory manner in which the supremacy of the laws of the
Union have been maintained by the court, and an undue assertion of state power overruled and defeated.
But the court were careful to declare that their decision was to be received with this qualification, — that the states were not deprived of any resources of taxation which they originally possessed, and that the restriction did not extend to a tax paid by the real property of the bank, in common with the real property within the state; nor to a tax imposed upon the interest which the citizens of Maryland might hold in that institution, in common with other property of the same description throughout the state. (a) (x)
The decision pronounced in this case against the validity of the Maryland tax was made on the 7th of March, 1819; and it was on the 7th of February preceding that the legislature of the state of Ohio imposed a similar tax, to the amount of fifty thousand dollars annually, on the Branch Bank of the United States established in that state. Notwithstanding this decision, the officers of the State of Ohio proceeded to levy the tax, and that act brought up before the Supreme Court a renewed discussion and consideration of the legality {428} of such a tax. (a) It was attempted to withdraw this case from the influence and authority of the former decision, by the suggestion that the Bank of the United States was a mere private corporation, engaged in its own business, with its own views, and that its great end and principal object were private trade and private profit. It was
(a) In Berney v. Tax Collector, 2 Bailey (S. C.), 654, a state tax on dividends arising from stock in the Bank of the United States, owned by a citizen of the state, was adjudged to he constitutional. And in the case of The Union Bank v. The State, 9 Yerger, 490, it was held that state bank stock, as individual property, might be taxed, when owned by residents of the state; but that the stock held by non-resident stockholders was not subject to the taxing power of the state, for it must be a tax in personam, and stock is a chose in action, and has no locality, and follows the person of the owner.
(a) Osborn v. Bank of the United States, 9 Wheaton, 738.
(x) Taxation by a State of stockholders in national banks within its limits is valid. Van Slyke v. Wisconsin, 154 U. S. 581; First Nat. Bank v. Herbert, 44 Fed. Rep. 158. National bank stock may be sold on execution under state legislation. In re Braden's Estate (Penn.), 30 Atl. Rep. 746 (Jan. '95.) The property of a
national bank cannot be attached by process from a State court before final judgment, though the bank is insolvent. U. S. Rev. Stats. § 5242; National S. Bank v. Butler, 129 U. S. 223; Raynor v. Pacific Bank, 93 N. Y. 371; Planters' L. & S. Bank v. Berry, 91 Ga. 264.
admitted, that if that were the case, the bank would be subject to the taxing power of the state, as any individual would be. But it was not the case. The bank was not created for its own sake, or for private purposes. It has never been supposed that Congress could create such a corporation. It was not a private, but a public corporation, created for public and national purposes, and as an instrument necessary and proper for carrying into effect the powers vested in the government of the United States. The business of lending and dealing in money for private purposes was an incidental circumstance, and not the primary object; and the bank was endowed with this faculty, in order to enable it to effect the great public ends of the institution, and without such faculty and business the bank would want a capacity to perform its public functions. And if the trade of the bank was essential to its character as a machine for the fiscal operations of the government, that trade must be exempt from state control, and a tax upon that trade bears upon the whole machine, and was, consequently, inadmissible, and repugnant to the Constitution. In Weston v. The City Council of Charleston, (b) it was decided that a state tax on stock issued for loans made to the United States was unconstitutional. The court considered it to be a tax on the power given to Congress to borrow money on the credit of the United States, and thereby to diminish the means of the United States used in the exercise of its powers, and that it was, consequently, repugnant to the Constitution. By declaring the powers of the general government supreme, the Constitution has shielded its action in the {429} exercise of its powers from any restraining or controlling action of the local governments. (a)1 (x)
(b) 2 Peters, 449.
(a) A decision upon the same principle was made in the case of Dobbins v. The Commissioners of Erie County, 16 Peters, 435, where it was held that an officer of the United States was not liable to be rated and assessed for his office by state rates and levies; for this would be to diminish the recompense secured by law to the
1 State and United States Taxes. — McCulloch v. Maryland seems to be somewhat limited by other decisions. The
power of a state to tax operations of the government, or instruments of the government, created by itself for public and
(x) "The only way in which commerce between the States can be legitimately affected by State laws, is when, by virtue of
its police power, and its jurisdiction over persons and property within its limits, a State provides for the security of the lives,
7. Nor exercise Power over Ceded Places. — The state governments may likewise lose all jurisdiction over places purchased by
officer. In the case of Melcher v. The City of Boston, in the Sup. Judicial Court of Massachusetts, March, 1845, [9 Metcalf, 73,] it was stated as a question undecided, whether a tax assessed upon the income of an officer of the United States would not he lawful, and not within the case of Dobbins. It was decided in the Massachusetts case, that a clerk in a post-office was not an officer exempted from taxation of his income.
constitutional ends, is still denied. But it will be observed that later cases (National Bank v. Commonwealth, and Lionberger v. Rouse, hereinafter given) come very near the line, and in the case of the Union Pacific Railway Company it was held not enough to exempt their road from state taxation that it was constructed under the direction and authority of Congress for the uses and purposes of the United States, as a part of a system of roads thus constructed; the difference being that this corporation, unlike the Bank of the United States, was created and exercised its franchise under state law, and held its property within state jurisdiction and under state protection. Thomson v. Pacific R. R., 9 Wall. 579. The earlier decision of Crandall v. Nevada, 6 Wall. 35, that a state tax on every person leaving the state by any vehicle employed in the business of transporting passengers for hire, to be paid by
the proprietors, was unconstitutional, was put by the majority of the court largely on the ground that the power to lay such a tax carries with it the power to prohibit the passage of government officers, troops, &c., or of citizens, through the state. But the Chief Justice (who delivered the opinion in Pacific R. R. case, supra) thought that the tax was only void as inconsistent with the power of Congress to regulate commerce. Post, 439, n. 1; Woodruff v. Parham, 8 Wall. 123, 138; Hinson v. Lott, ib. 148, 152. The mere fact that a business has been taxed by Congress does not prevent a state from taxing or prohibiting it. Pervear v. Commonwealth, 5 Wall. 475, 479; License Tax Cases, ib. 462; post, 439, n. 1.
Several important cases have arisen under the present national currency and banking acts. In the first of these the New York Court of Appeals took a distinction between a tax on United States
limbs, health, and comfort of persons and the protection of property, or when it does those things which may otherwise incidentally affect commerce, such as the establishment and regulation of highways, canals, railroads, wharves, ferries, and other commercial facilities; the passage of inspection laws to secure the due quality and measure of products and commodities; the passage of laws to regulate or restrict the sale of articles deemed injurious to the health or morals of the community; the imposition of taxes upon persons residing within the State or be-
longing to its population, and upon avocations and employments pursued therein, not directly connected with foreign or interstate commerce or with some other employment or business exercised under authority of the Constitution and laws of the United States; and the imposition of taxes upon all property within the State, mingled with and forming part of the great mass of property therein. But in making such internal regulations a State cannot impose taxes upon persons passing through the State, or coming into it merely for a temporary purpose, especially
Congress, by the consent of the legislature of the state, for the erection of forts, dock-yards, light-houses, hospitals, military
stock eo nomine, which was the case of Weston v. Charleston, and one on the actual value of the capital stock of a bank, part of whose property was in fact invested in United States stock, and held a tax of the latter description valid. This decision was reversed in Washington. People v. Commissioners of Taxes, 2 Black, 620; S. C. 23 N. Y. 192: 26 N. Y. 163. A statute was then passed by the state legislature taxing the banks "on a valuation equal to the amount of their capital stock paid in, or secured to be paid in, and their surplus earnings," &c. This also, after having been upheld by the courts of the state, was declared by the Supreme Court to be a tax on the property of the banks, and therefore, like the previous one, invalid, when that property consisted of United States stock. Bank Tax Case, 2 Wall. 200.
On like principles, it has been further held, contrary to the opinion of the New York judges, that certificates of indebtedness issued by the United States for supplies, bearing interest, and payable in a year, or earlier at the option of the government, are exempt from state taxation, The Bank v. The Mayor, 7 Wall. 16; see 37 N. Y. 9; as are also legal-tender treasury notes issued under the acts of Feb. 25,
1862, and July 11, 1862; Bank v. Supervisors, 7 Wall. 26; see 37 N. Y. 21. The state, however, can tax a bank on its franchise, and the Supreme Court have gone very far in sustaining taxes on this ground. Thus, a tax on savings banks of "a sum equal to three-fourths of one per cent on the total amount of deposits," has been held valid, although part of such deposits were invested in United States stocks. Society for Savings v. Coite, 6 Wall. 594; Provident Institution v. Massachusetts, ib. 611; Hamilton Co. v. Massachusetts, ib. 632. So, a tax on the "excess of the market value of all the capital stock" of a corporation "over the value of its real estate and machinery," the two latter being taxed separately. Hamilton Co. v. Massachusetts, 6 Wall. 632; S. C. 12 Allen, 298. See further, Monroe Savings Bank v. Rochester, 37 N. Y. 365.
Taxes on the shareholders in national banks stand on a different footing from taxes on the banks. By the act of June 3, 1864, § 41, and act of Feb. 4, 1868, § 1, shares in such a bank may be included in the valuation of the personal property of their owner in the assessment of state taxes in the state within which such bank is located, and not elsewhere. It has been
if connected with interstate or foreign commerce; nor can it impose such taxes upon property imported into the State from abroad, or from another State, and not yet become part of the common mass of property therein; and no discrimination can be made, by any such regulations, adversely to the persons or property of other States; and no regulations can be made directly affecting interstate commerce. Any taxation or regulation of the latter character would be an unauthorized interference with the power given to Congress
over the subject." Bradley, J., in Robbins v. Shelby Taxing District, 120 U. S. 489, 493. Upon such power to tax, see also Philadelphia & S. S. Co. v. Pennsylvania, 122 U. S. 326; Leloup v. Mobile, 127 U. S. 640; Western U. T. Co. v. Alabama, 132 U. S. 472; Ashley v. Eyan, 153 U. S. 436; Postal T. C. Co. v. Charleston, id. 692; Cleveland, &c. Ry. Co. v. Backus, 154 U. S. 439; New York, &c., Ry. Co. v. Pennsylvania, 158 U. S. 431; Pittsburgh & S. Coal Co. v. Bates, 156 U. S. 577.
academies, and other needful buildings. (b) The question which has arisen on the subject was as to the effect of the proviso or reservation, usually annexed to the consent of the state, that all civil and criminal process, issued under the authority of the state, might be executed on the lands so ceded, in like manner as if the cession had not been made. This point was much discussed in the Circuit Court of the United States in Rhode Island, in the case of The United States v. Cornell. (c) It was held that a purchase of lands within the jurisdiction of a state, with the consent of the state, for the national purposes contemplated by the Constitution, did, ipso facto, by the very terms of the Constitution, fall within the exclusive legislation of Congress, and that the state jurisdiction was completely ousted. What, then, is the true intent and effect of the saving clause annexed to the cessions? It does not imply the reservation of any concurrent jurisdiction or legislation, or that the state retained a right to punish for acts done within the ceded lands. The whole apparent object of the proviso was to prevent the ceded lands from becoming a sanctuary
(b) Const. art. 1, sec. 8.
(c) 2 Mason, 60, 91; United States v. Davis, 5 Mason, 356, S. P.
held that this section subjects the shares to state taxation without regard to the fact that a part or the whole of the capital of the bank is invested in national securities issued under statutes exempting them from such taxation. Van Allen v. The Assessors, 3 Wall. 573; S. C. 33 N. Y. 161; People v. The Commissioners, 4 Wall. 244; S. C. 35 N. Y. 423; State v. Haight, 2 Vroom (31 N. J.), 399. Furthermore, it may lawfully be provided that the officers of the bank shall pay the tax on the shares. National Bank v. Commonwealth, 9 Wall. 353; Lionberger v. Rouse, ib. 468. But the act provided against unfavorable discrimination, and therefore shares in national banks cannot be taxed, when state banks are taxed only on capital. Bradley v. The People, 4 Wall. 459; S. C. 39 Ill. 130; Van Allen v. The Assessors, supra. See Austin v. The Aldermen, 7 Wall. 694; Hubbard v. Board of Supervisors, 23 Iowa, 130; Pittsburg v.
First National Bank of Pittsburg, 55 Penn. St. 45.
The principle of self-preservation, which was held in McCulloch v. Maryland, &c., to invalidate attempts by the state to tax certain instruments and operations of the general government, is considered to also limit the power of the United States to tax instruments and operations of the states; and it has been held that Congress cannot constitutionally tax the salary of a state judge. The Collector (Buffington) v. Day, 11 Wall. 113. And the same principle has been thought by several state courts to apply to the requirement of a stamp on the records of state judicial proceedings, &c. Moore v. Moore, 47 N. Y. 467.
On the other hand, a tax on circulation by banks of state bank notes, so heavy as to put an end to it, has been upheld. Veazie Bank v. Fenno, 8 Wall. 533.
for fugitives from justice, for acts done within the acknowledged jurisdiction of the state; and such permission to execute process is not incompatible with exclusive sovereignty and jurisdiction. The acceptance of a cession, with this reservation, amounts to an agreement of the new sovereign to permit the free exercise of such process, {430} as being quoad hoc his own process. This construction has been frequently declared by the courts of the United States, and it comports entirely with the intention of the parties; and upon any other construction the cession would be nugatory and void. Judge Story doubted whether Congress were even at liberty, by the terms of the Constitution, to purchase lands with the consent of a state, under any qualification of that consent, which would deprive them of exclusive legislation over the place. The courts of the United States have sole and exclusive jurisdiction over an offence committed within a ceded place, notwithstanding the ordinary reservation of the right to execute civil and criminal process of the state. That was no reservation of any sovereignty or jurisdiction.
Congress, in exercising powers of exclusive legislation over a ceded place or district, unite the powers of general with those of local legislation. The power of local legislation carries with it, as an incident, the right to make that power effectual. Congress exercises that particular local power, like all its other powers, in its high character as the legislature of the Union; and its general power may come in aid of these local powers. It is, therefore, competent for Congress to try and punish an offender for an offence committed within one of those local districts, in a place not within such jurisdiction; or to provide for the pursuit and arrest of a criminal escaping from one of those districts after committing a felony there; or to punish a person for concealing, out of the district, a felony committed within it. All these incidental powers are necessary to the complete execution of the principal power; and the Supreme Court, in Cohens v. Virginia, (a) held that they were vested in Congress.
It follows, as a consequence, from this doctrine of the federal courts, that state courts cannot take cognizance of any {431} offences committed within such ceded districts; and, on the other hand, that the inhabitants of such places cannot exercise any civil or political privileges under the laws of the
(a) 6 Wheaton, 426-429.
state, because they are not bound by those laws. This has been so decided in the state courts. (a) But if, in any case, the United States have not actually purchased, and the state has not, in point of fact, ceded the place or territory to the United States, its jurisdiction remains, notwithstanding the place may have been occupied, ever since its surrender by Great Britain, by the troops of the United States, as a fort or garrison. The Supreme Court of New York accordingly held, in the case of The People v. Godfrey, (b) that they had jurisdiction of a murder committed by one soldier upon another within Niagara fort. Nor would the purchase of the land by the United States be alone sufficient to vest them with the jurisdiction, or to oust that of the state, without being accompanied or followed with the consent of the legislature of the state. This was so decided in the case of The Commonwealth of Pennsylvania v. Young. (c) (x)
(a) Commonwealth, v. Clary, 8 Mass. 72; Same v. Young, 1 Hall's Journal of Jurisprudence, 53.
(b) 17 Johns. 225.
(c) 1 Hall's Journal of Jurisprudence, 47. [It seems that there must be an act of Congress vesting the jurisdiction in the United States courts. In re O'Connor, 37 Wis.. 379. — B.] The jurisdiction of the United States over the lands within places ceded by a state was fully and learnedly examined by Mr. Justice Woodbury, in the Circuit Court of the United States in Massachusetts in October, 1845, in the case of The United States v. Ames, Law Reporter for November, 1846 [1 Woodb. & Minot, 76.] It was adjudged that if the United States own lands in any state, and there be no cession of the jurisdiction, the lex rei sitæ applicable to the land-owners of the state, governs, as to rights and remedies, equally applying to non-residents and citizens, when the laws of Congress have not otherwise provided; such, for instance, is the case under an analogous principle, when the United States are the holders of a bill of exchange, United States v. Barker, 12 Wheaton, 561, and when liable to damages on
(x) See supra, 268, n. (x). Art. 1, Sect. 8, cl. 17 of the U. S. Constitution applies to land actually purchased, jurisdiction over which has also been ceded by the State, but not to such land as Fortress Monroe, which was ceded directly by the State of Virginia to the United States. In such case the land is held only as prescribed in the act of cession, and State laws reasonably applicable continue in force. Crook v. Old Point Comfort Hotel Co., 54 Fed. Rep. 604; Fort Leavenworth R. Co. v. Lowe, 114 U. S. 522; Chicago, R. I. & P. Ry.
Co. v. McGlinn, id. 542. In New York it has been held that where the United States leased part of the land ceded to it for the Brooklyn Navy Yard to the city of Brooklyn for a market, and the city subleased to the plaintiff, an action for trespass committed on the land would lie in the State courts. Barrett v. Palmer, 135 N. Y. 336; 16 N. Y. S. 94. Upon cession by a State to the United States of jurisdiction over land within its limits, acceptance of the grant, if beneficial, presumed. Benson v. United States, 146 U. S. 325.
8. Power to regulate Commerce. — I proceed next to examine the judicial decisions under the power given to Congress to "regulate commerce with foreign nations, and among the several states;" and it will be perceived that the questions arising under this power have been of the utmost consequence to the interests of the Union, and the residuary claims and sovereignty of the states.
The first question that arose upon this part of the Constitution was respecting the power of Congress to interrupt or destroy the commerce of the United States, by laying a general embargo, without any limitation as to time. By the act {432} of Congress of 22d December, 1807, an embargo was laid on all ships and vessels in the ports and harbors of the United States, and a prohibition of exportation from the United States, either by land or water, of any goods, wares, or merchandise, of foreign or domestic growth or manufacture. There were several supplementary acts auxiliary to this principal one, and intended more effectually to enforce it, under certain specific exceptions. In the case of The United States v. The Brigantine William, in the District Court of Massachusetts, in September, 1808, (a) it was objected that the act was unconstitutional, for that Congress had no right, under the power to regulate commerce, thus to annihilate it, by interdicting it entirely with foreign nations. But the court decided that the embargo act was within the constitutional provision. The power of Congress was sovereign relative to commercial intercourse, qualified by the limitations and restrictions expressed in the Constitution; and by the treaty-making power of the President and Senate, Congress had a right to control or
foreign bills of exchange, as see supra, 297; and as to liability to general average, see infra, iii. 171, n. (a); and as to alluvions and land deposits, 10 Peters, 662, 717; and as to set-off, see supra, 297. But if the ceded lands have been accompanied with a cession of the jurisdiction, the lands are subject to the laws of Congress, and not to those of the state; and those state laws cannot be permitted to thwart or embarrass the object of the cession by taxes, or by overflowing the land with water, or otherwise in any degree to conflict with what is required or provided by the general government of the United States, which may punish offences and trespasses, and remove intruders thereon. On the other hand, if Congress have not provided any adequate and exclusive remedy for injuries to public property, then the common law or laws of the states apply. But the United States have jurisdiction over its territory, though the particular lands have not been ceded, inasmuch as the lands are held for special purposes, and are to be protected.
(a) 2 Hall's Law Journal, 255.
abridge commerce for the advancement of great national purposes. Non-intercourse and embargo laws are within the range of legislative discretion; and if Congress have the power, for purposes of safety, or preparation, or counteraction, to suspend commercial intercourse with foreign nations, they are not limited as to the duration, more than as to the manner and extent of the measure. (b)
A still graver question was presented for the consideration of the federal judiciary, in the case of Gibbons v. Ogden, (c) decided by the Supreme Court of the United States, in February term, 1824. That decision went to declare that several acts of the legislature of New York, granting to Livingston and Fulton the exclusive navigation of the waters of the state in vessels propelled by steam, were unconstitutional and void acts, and repugnant to the power given to {433} Congress to regulate commerce, so far as those acts went to prohibit vessels licensed under the laws of Congress for carrying on the coasting trade, from navigating the waters of New York.
It had been decided in the Court of Errors of New York, in 1812, (a) that five several statutes of the state, passed between the years 1798 and 1811, inclusive, and granting and securing to the claimants the sole and exclusive right of using and navigating boats by steam, in the waters of the state, for a term of years, were constitutional and valid acts. According to the doctrine of the court in that case, the internal commerce of the state by land and water remained entirely and exclusively within the scope of its original sovereignty. It was considered to be very difficult to draw an exact line between those regulations which relate to external, and those which relate to internal commerce, for every regulation of the one will, directly or indirectly, affect the other. But it was supposed that there could be no doubt that the acts of the state, which were then under consideration, were not within any constitutional prohibition, for not one of the restrictions upon state power, contained in the 9th and 10th sections of the 1st article of the Constitution, appeared to apply to the case; nor was there any existing regulation of Congress on the subject of
(b) Mr. Justice Story says that the measure of a general embargo, indefinite as to time as that laid in 1807, went to the utmost verge of implied constitutional power. Commentaries, iii. p. 163.
(c) 9 Wheaton, 1. (a) Livingston v. Van Ingen, 9 Johns. 507.
commerce with foreign nations, and among the several states, which was deemed to interfere with the grant. It was declared to be a very inadmissible proposition, that a state was devested of a capacity to grant an exclusive privilege of navigating a steamboat within its own waters, merely because Congress, in the plenary exercise of its power to regulate commerce, might make some future regulation inconsistent with the exercise of that privilege. The grant was taken, undoubtedly, subject to such future commercial regulations as Congress might lawfully prescribe; and to what extent they might lawfully {434} prescribe them was admitted to be a question within the ultimate cognizance of the Supreme Court of the United States. The opinion of the court went no further than to maintain that the grant to Livingston and Fulton was not within any constitutional prohibition upon the states, nor was it repugnant or contradictory to any existing act of Congress on the subject of commerce; and under those two restrictions every state had a right to make its own commercial regulations. It was generally declared that Congress had not, in the understanding of the court, any direct jurisdiction over our interior commerce or waters; and that they had concurrent jurisdiction over our navigable waters, only so far as might be incidental and requisite to the due regulation of commerce between the states and with foreign nations.
In this case, in 1812, the defendants, who objected to the validity of the state grant, did not set up any patent right, or any other right under any particular act of Congress. They rested entirely on the objection, that the statutes conferring the exclusive privilege were absolutely unconstitutional and void. But afterwards, in the case of Ogden v. Gibbons, (a) the defendant set up, by way of right and title to navigate a steamboat upon the waters of New York, in opposition to the grant, that his boats were duly enrolled and licensed under the laws of the United States, at Perth Amboy, in the State of New Jersey, to be employed in carrying on the coasting trade. The question in that case was, whether such a coasting license conferred any power to interfere with the grant; and it was decided in the Court of Chancery, and afterwards in the Court of Errors, (b) that the coasting license merely gave to the steamboat an American character for the purpose of revenue, and that it was not intended to decide a question of property, or
(a) 4 Johns. Ch. 150. (b) 17 Johns. 488.
to confer a right of property, or a right of navigation or commerce. {435} The act of Congress regulating the coasting trade was never intended to assert any supremacy over state regulations or claims, in respect to internal waters or commerce. It was not considered by our courts as the exercise of the power of Congress to regulate commerce among the states. The law concerning the coasting trade was passed on the 18th of February, 1793; and it never occurred to any one, during the whole period that the state laws were under consideration before the legislature, and in the council of revision, and in the courts of justice, from 1798 down to and including the judicial investigations in 1812, that the Coasting Act of 1793 was a regulation of commerce among the states prohibitory of any such grant. Such latent powers were never thought of, nor imputed to it. The great objects and policy of the Coasting Act were to exclude foreign vessels from commerce between the states, in order to cherish the growth of our own marine, and to provide that the coasting trade should be conducted with security to the revenue. The register and enrolment of the vessel were to ascertain the national character; and the license was only evidence that the vessel had complied with the requisites of the law, and was qualified for the coasting trade under American privileges. The license did not define the coasting trade. Free trade between the states then existed, subject to local and municipal regulations. The requisitions of the Coasting Act were restrictions upon the general freedom of that commerce, and not the grant of new rights. Steam vessels were subject to those regulations equally with any other vessels. If Congress had intended that a coasting license should confer power and control, and a claim of sovereignty subversive of local laws of the states within their own jurisdictions, it was supposed they would have said so in plain and intelligible language, and not have left their claim of supremacy to be hidden from the observation and knowledge of the state governments, in the unpretending and harmless shape of a coasting license, obviously intended
for other purposes.
{436} It was, therefore, upon considerations like these that the courts of justice in New York did not consider the grant to Livingston and Fulton as disturbed by a coasting license under the act of 1793. They did not, either in the case of Ogden v. Gibbons. or in any of the cases which preceded it, deny to Con-
gress the power to regulate commerce among the states, by express and direct provision, so as to control and restrict the exercise of the state grant. They only insisted that, without some such explicit provision, the state jurisdiction over the subject remained in full force. This cause was afterwards carried up by appeal to the Supreme Court of the United States, and the decree reversed, on the ground that the grant was repugnant to the rights and privileges conferred upon a steamboat navigating under a coasting license. (a)
In the construction of the power to regulate commerce, the court held that the term meant not only traffic, but intercourse, and that it included navigation, and the power to regulate commerce was a power to regulate navigation. Commerce among the several states meant commerce intermingled with the states, and which might pass the external boundary line of each state, and be introduced into the interior. It was admitted that the power did not extend to that commerce which was completely internal, and carried on between different ports of the same state, and which did not extend to or affect other states. The power was restricted to that commerce which concerned more states than one, and the completely internal commerce of a state was reserved for the state itself. The power of Congress on this subject comprehended navigation within the limits of every state; and it might pass the jurisdictional line of a state, and be exercised within its territory, so far as the navigation was connected with foreign commerce, or with commerce among the several states. This power, like all {437} the other powers of Congress, was plenary and absolute within its acknowledged limits. But it was admitted that inspection laws relative to the quality of articles to be exported, and quarantine laws, and health laws of every description, and laws for regulating the internal commerce of a state, and those with respect to turnpike roads, ferries, &c., were component parts of an immense mass of legislation, not surrendered to the general government. Though Congress may license vessels to sail from one port to another in the same state, the act is supposed to be necessarily incidental to the power expressly granted to Congress, and it implies no claim of a direct power to regulate the purely internal commerce of a state, or to act directly on its system of police. The court con-
(a) Gibbons v. Ogden, 9 Wheaton, 1.
strued the word regulate to imply full power over the thing to be regulated, and to exclude the actions of all others, that would perform the same operation on the same thing.
After laying down these general propositions, the court proceeded to observe that the acts of New York, granting exclusive privileges to certain steamboats, were in collision with the acts of Congress regulating the coasting trade, and that the acts of the state must, in that case, yield to the supreme and paramount law. If the law of Congress was made in pursuance of the Constitution, the state law must yield to the supremacy of it, even though they were enacted in pursuance of powers acknowledged to remain in the states. A license under the acts of Congress for regulating the coasting trade was an authority to carry on that trade. The words of the act of Congress, directing the proper officer to grant to a vessel qualified to receive it, "a license for carrying on the coasting trade, "was considered as conveying an explicit authority for that purpose. It was the legislative grant of a right, and it conferred all the right which Congress could give in the case, and it was not intended to confer merely the national character. It was further held that the power to regulate commerce extended to navigation, carried on by vessels exclusively {438} employed in transporting passengers, and to vessels propelled by steam, as well as to vessels navigated by other means.
This is the substance of the argument of the Supreme Court of the United States in the steamboat case. The only great point on which the Supreme Court of the United States and the courts of New York have differed, is in the construction and effect given to a coasting license. They did not differ in any general view of the powers of Congress; and the Supreme Court expressly waived any inquiry or decision on the point, whether the exercise of the power assumed by the steamboat laws would have been illegal, provided there was no existing regulation of Congress that came in collision with them. The decision in Livingston v. Van Ingen rested upon the assumption that there was no such regulation.
The Court of Errors of New York, since the case of Gibbons v. Ogden, have given to this constitutional power a very liberal extent, by the construction put upon a coasting trade. In that decision, the power to regulate commerce "among the several
states" was supposed to be "very properly restricted to that commerce which concerns more states than one;" and that it did not "comprehend that commerce which was completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states." But in the case in New York alluded to, (a) the Court of Errors held that the coasting trade meant, amongst other things, commercial intercourse carried on between different districts in the same state, and between different places in the same district, on the sea-coast, or on a navigable river; and that a voyage from New York to Albany {439} was as much a coasting voyage as from Boston to New Bedford. (a)
Under the power to regulate commerce, it has been further decided, (b) that a state law, requiring every importer of goods
(a) Steamboat Company v. Livingston, 3 Cowen, 747. See also 1 Wendell, 560.
(a) This power in Congress to regulate "commerce among the several states" was well and ably discussed in the United States District Court in Missouri, in the case of The United States v. The Steamboat James Morrison, in 1846 (reported in the New York Legal Observer for September, 1846), and the doctrine established in Gibbons v. Ogden was reviewed, illustrated, and enforced, with this qualification, not inconsistent with the principle of that leading case, viz., that a steamboat employed only as a ferry-boat on the river Missouri, within the limits of the State of Missouri, was not bound to take out a license from a United States officer, under the act of Congress of 7th July, 1838. The power to regulate commerce with foreign nations and among the several states did not extend to a navigation so perfectly internal, and so totally disconnected from commerce out of the state. The license referred to was one to "carry on the coasting trade," and that ferry business had no connection with the coasting trade. It was admitted, however, that a coasting trade was not less part of commerce among the several states, though a vessel should only navigate from one port to another in the same state, up and down a navigable river, when such commerce was a connected and divisible part of one general commerce between and among two or more states. But there was an earlier decision, directly contrary to this in Missouri, in the case of The United States v. Jackson, in the Southern District of New York, in November, 1841 (N. Y. Legal Observer for December, 1846). It was in that case adjudged, upon an elaborate discussion of the subject, that the act of Congress of 7th July, 1838, embraced all vessels of all descriptions, propelled wholly or in part by steam; and that steamboats required to be licensed or inspected, without regard to the business they follow, or the place[s] they run between; and that steamboats wholly engaged on ferries within a state, and owned in such state, are within the requisition of the license law.
(b) Brown v. State of Maryland, 12 Wheaton, 419; Wynne v. Wright, 1 Dev. & Batt. (N. C.) 19, S. P. See also the case of The People v. Huntington, N. Y. Legal Observer for May, 1846, p. 187. It was adjudged, in the Ontario sessions, in New York, that a statute prohibiting the sale of spirituous liquors, to be drunk in certain places, was not repugnant to the Constitution of the United States; for that
by wholesale, bale, or package, to take out a license, and pay for it, under certain penalties or forfeitures for neglect or refusal, was repugnant to the Constitution of the United States, and void; inasmuch as it belonged to Congress to regulate foreign commerce, and no state can lay a duty on imports. But it was admitted in that case that, after the goods had become mixed with or incorporated into the general mass of the property of the state, they were liable to state taxation. (c) The restriction does not apply to goods imported and in the hands of the retail trader. In connection with this subject it may be further observed, that, by the Constitution of the United States, no "state shall, without the consent of [the] Congress, lay any imposts, or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and all such laws shall be subject to the revision and control of [the] Congress." (d) In-
the power of Congress had no application to the purely internal commerce of a state, and was to be confined to the period of time during which the act of importation, introduction, and incorporation of a foreign commodity into the mass of the property of the state was going on. The principles involved in this case were drawn from the decisions of the federal courts, and I have referred to it principally on the ground of the clear and able condensation and review of the federal doctrine on the subject, by Judge Smith, who presided in that inferior jurisdiction.
(c) In Cumming v. Corporation of Savannah, it was decided, by one of the superior courts of Georgia, in 1816, that a levy of a tax under a city ordinance, founded on a state law, on all goods not the produce of the state, and sold on commission, was lawful, as not being a duty on imports. R. M. Charlton, 26. It was further decided, in Green v. The City of Savannah, ib. 368, that the right to tax imports as well as exports, for the purpose of executing inspection laws, resided in the states. So it has been decided that a state act imposing a duty on the retailers of foreign merchandise was not repugnant to the Constitution of the United States, though the act applied as well to the importer as other sellers of foreign merchandise. Biddle v. The Commonwealth, 13 Serg. & Rawle, 405. But this decision may be considered as overruled by the decision in Brown v. State of Maryland, above mentioned, so far as it goes to prohibit the importer from selling the imported article in bulk, for the right to sell is inseparably connected with the law permitting importation. The act of Pennsylvania, on which the decision in S. & R. was founded, was unexceptionable as it originally stood, without the supplementary amendment; for it contained an exception in favor of importers of goods, who sold them in the original bulk or package in which they were imported.
(d) Constitution, art. 1, sec. 10. By act of Congress of 27th February, 1801, c. 83, the assent of Congress was declared to an act of the legislature of Maryland appointing a health officer for the port of Baltimore, so far as to enable the state to collect a duty of one per cent per ton on all vessels coming into the district of Baltimore from a foreign voyage, for the purpose intended in the act. This act of Congress is evidence of the restricted sense given to the clause in the Constitution cited in the text.
spection laws are not, strictly speaking, regulations of commerce. Their object is to improve the quality of articles produced by the labor of the country, and to fit them for exportation or for domestic use. These laws act upon the subject before it becomes an article of commerce. Inspection laws, quarantine laws, and health laws, as well as laws for regulating the internal commerce of a state, are component parts of the immense mass of residuary state legislation, and over which Congress have no direct power, though it may be controlled when it directly interferes with their acknowledged powers. (e) It has been held, (f) that if Congress, in the execution of the power to regulate commerce, should pass a statute controlling state legislation in erect-
(e) Marshall, Ch. J., in Gibbons v. Ogden, 9 Wheaton, 203. In the case of The City of New York v. Miln, 11 Peters, 102, it was decided that a law of New York, of Februaiy, 1824, requiring, under a penalty, the master of every vessel from any port out of the state to report in writing, within twenty-four hours after his arrival, the names, ages, and last legal settlement of the passengers, and that the master or owners should give bond with sureties to indemnify the city against the future charges of passengers who were not citizens, was not a regulation of commerce, but of police, and was a constitutional and valid law. The case received a very elaborate discussion; but it is rather difficult, as I apprehend, to exempt the New York law from the character of a regulation of commerce, or to withdraw the case out of the reach of the former doctrines of the court, that the power to regulate commerce with foreign nations is, and necessarily must be, exclusive in the government of the United States. In pursuance of the principle of this last decision, it was held, in Norris v. City of Boston, 4 Metcalf, 282, that a state law prohibiting the landing of alien passengers, until the owner, master, or consignee of the vessel paid two dollars for each passenger, for the support of foreign paupers, was not repugnant to the Constitution of the United States. It was a regulation of municipal police, and not of commerce. [Post, 439, n. 1.] So, in the case of Worsley v. Second Municipality of N. O., 9 Rob. (La.) 324, it has been adjudged that an ordinance of the municipality of New Orleans, imposing a wharfage on all packages landed in or shipped from the limits of the same, was valid, and not repugnant to the Constitution of the United States. The Constitution of the United States never intended to authorize Congress to interfere with the laws of the states in relation to wharves and other instruments of trade, and in the preservation of harbors, &c. A contribution to defray the expense of constructing bridges or causeways, or removing obstructions in watercourses, and a retribution for this expense, to be paid by those who are benefited, are not an impost, tax, or duty.
Again, in the case of Howell v. The State of Maryland, before the Court of Appeals, in December, 1845, [3 Gill, 14,] it was decided that a state tax on the interest in all ships or other vessels, whether in or out of port, owned by persons resident of the state, was a valid tax, and not protected by the act of Congress licensing vessels, nor repugnant to the Constitution or laws of the United States.
(f) Wilson v. The Blackbird Creek Marsh Company, 2 Peters, 245; Thompson, J., 11 Peters, 149, 150, S. P.
ing dams over small navigable creeks where the tide ebbs and flows, it would be valid and binding. But until Congress had actually exercised their power over the subject, the state legislation in that case was not considered as repugnant to the power in Congress in its dormant state to regulate commerce. (x) It is
(x) See supra, 268, note (x). Commerce among the States is both traffic and intercourse, embracing every species of commercial intercourse between the United States and foreign nations and among the States, and including such trade or traffic, buying, selling, and interchange of commodities as directly affect or necessarily involve the interests of the people of the United States. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Kidd v. Pearson, 128 U. S. 1; United States v. E. C. Knight Co., 156 U. S. 1; Pittsburgh & S. Coal Co. v. Louisiana, id. 590; People v. Wemple (131 N. Y. 64), 27 Am. St. Rep. 542, and note. Under the power to regulate commerce, Congress can construct, or authorize the construction of, railroads across the States and territories. California v. Central Pacific R. Co., 127 U. S. 1. To exclude Stale legislation, Congress must have acted, if the matter is local and only incidentally affects commerce, since interstate commerce properly relates only to national matters or to matters which require regulation and uniformity in the various States. Rhea v. Newport, &c. R. Co., 50 Fed. Rep. 16; Cardwell v. American Bridge Co., 113 U. S. 205; Henry v. Roberts, 50 Fed. Rep. 902; Robbins v. Shelby C. Taxing District, 120 U. S. 489; Walling v. Michigan, 116 U. S. 446; Brown v. Houston, 114 U. S. 622; Philadelphia &c. S. Co. v. Pennsylvania, 122 U. S. 326; Western U. T. Co. v. Pendleton, id. 347; Bowman v. Chicago & N. W. Ry. Co., 125 U. S. 465; Smith v. Alabama, 124 U. S. 465; see also Henderson Bridge Co. v. Henderson, 141 U. S. 679; Postal Tel. Co. v. Charleston, 153 U. S. 692; Luxton v. North River Bridge Co., id. 525; Ashley v. Ryan, id. 436;
Pittsburgh &c. Ry. Co. v. Backus, 154 U. S. 421; Cleveland, &c. Ry. Co. v. Backus, id. 439; Covington &c. Bridge Co v. Kentucky, 154 U. S. 204; Waterhouse v. Comer, 55 Fed. Rep. 149; In re Schechter, 63 id. 695; 33 Cent. L. J. 207; 30 id. 181, n., 302; 32 id. 73; 25 Am. L. Rev. 170; 24 id. 25; 4 Harv. L. Rev. 221. Thus quarantine laws, though regulations of commerce, belong to the class which the States may enact until Congress legislates upon the subject or forbids State laws. Morgan's La. &c. S. Co. v. Board of Health, 118 U. S. 455; see 2 Harv. L. Rev. 267, 293; 25 Am. L. Rev. 45; Minneapolis, &c., Ry. Co. v. Milner, 57 Fed. Rep. 276. But State pilot laws cannot discriminate between the vessels of its own ports and those of adjoining States. Spraigue v. Thompson, 118 U. S. 90; State v. Penny, 19 S. C. 218. So a State occupation tax is invalid, if it is so framed as to create a discriminative burden upon the citizens or products of other States. Walling v. Michigan, 116 U. S. 446. The constitutional prohibition against the levying of State duties on imports or exports relates to foreign, not to interstate, commerce. Brown v. Houston, 114 U. S. 622.
Interstate commerce is interfered with by a State statute which imposes a license tax on travelling salesmen, so far as nonresidents' goods are excluded or taxed: Crutcher v. Kentucky, 141 U. S. 47; Robbins v. Shelby County Taxing District, 120 U. S. 489; Brennan v. Titusville, 153 U. S. 289; In re Mitchell, 62 Fed. Rep. 576; Ex parte Hough, 69 id. 330; see In re Spain, 47 id. 208; Ex parte Brown, 48 id. 435; State v. Pratt, 59 Vt. 590; Ex parte Bliss, 63 N. H. 135; State v. Stevenson, 109 N. C. 730;
admitted, however, (g) that the grant to Congress to regulate commerce on the navigable waters of the several states contains
(g) Corfield v. Coryell, 4 Wash. 371.
Ficklen v. Shelby County, 145 U. S. 1; Overton v. Vicksburg, 70 Miss. 558; Ex parte Thomas, 71 Cal. 204; Ex parte Rosenblatt, 19 Nev. 439; or an Act prohibiting peddling without a license as against the agent of a foreign manufacturer who has with him the goods offered for sale: Emert v. Missouri, 156 U. S. 296; American Harrow Co. v. Shaffer, 68 Fed. Rep. 750; by an Act requiring goods made by convict labor in other States to be so labelled when exposed for sale: People v. Hawkins, 31 N. Y. S. 115; by a State Chinese exclusion law: Ex parte Ah Cue, 101 Cal. 197; or one that restricts foreign commerce: Cuban S. Co. v. Fitzpatrick, 66 Fed. Rep. 33; by an Act prohibiting the transportation of diseased cattle through the State: Grimes v. Eddy, 126 Mo. 168; Rouse v. Youard (Kansas), 41 Pac. Rep. 426; by State inspection or license laws, which discriminate against goods from other States or impose onerous fees upon such goods: Minnesota v. Barber, 136 U. S. 313; Brimmer v. Rebman, 138 U. S. 78; Voight v. Wright, 141 U. S. 62; Huffman v. Harvey, 128 Ind. 600; Georgia Packing Co. v. Macon, 60 Fed. Rep. 774; In re Schechter, 63 id. 695; by an Act requiring separate railroad cars for all colored and white passengers, though passing through the State: Anderson v. Louisville & N. R. Co., 62 Fed. Rep. 46; by a State law authorizing lands to be reclaimed under important tidal channels: Coxe v. State, 144 N. Y. 396; by an Act operating beyond the State and making a carrier liable for connecting carriers' negligence: McCann v. Eddy, (Mo.), 27 S. W. Rep. 541; by a city license fee for vessels already licensed under U. S. Rev. Stats. § 4321: Harmon v. Chicago, 147 U. S. 396; by applying state-tax laws to corporations possessing national fran-
chises, see Western U. Tel. Co. v. Massachusetts, 125 U. S. 530; St. Louis v. Western U. T. Co., 148 U. S. 92; McCall v. California, 136 U. S. 104; San Francisco v. Western U. T. Co., 96 Cal. 140; People v. Wemple, 65 Hun, 252; by a law excluding from a State a corporation engaged in interstate or foreign commerce: Postal Tel. Cable Co. v. Adams, 155 U. S. 688; Cooper Manuf. Co. v. Ferguson, 113 U. S. 727; but not including the business of marine insurance. Hooper v. California, 155 U. S. 648. State laws prohibiting the sale of imported intoxicating liquors, &c., in their original packages are invalid prior to the Act of Congress of Aug. 8, 1890 (26 St. at L. 313), which declared that such liquors shall, on arrival in a State, be subject to the police powers of the State. Leisy v. Hardin, 135 U. S. 100; Bowman v. Chicago & N. W. Ry. Co., 125 U. S. 465; In re Rahrer, 140 U. S. 564; In re Spickler, 43 Fed. Rep. 653; In re Sanders, 52 id. 802; Cantini v. Tillman, 54 id. 969; In re Langford, 57 id. 570; Ex parte Edgerton, 59 id. 115; In re Minor, 69 id. 233; State v. Lord (N. H.), 29 Atl. Rep. 556; Durkee v. Moses (N. H.), 23 id. 793; Indianapolis v. Bieler (Ind.), 36 N. E. Rep. 857; State v. Kibling, 63 Vt. 636; State v. Parsons, 124 Mo. 436; Harrison v. State, 91 Ala. 62; Hopkins v. Lewis, 84 Iowa, 690; State v.Wheelock (Iowa), 64 N. W. Rep. 620.
The following do not unlawfully interfere with interstate commerce: State inspection, fish, and game laws not discriminating against other States: Patapsco Guano Co. v. Board of Agriculture, 52 Fed. Rep. 690; Glover v. Flour Inspectors, 48 id. 348; Minnesota v. Barber, 136 U. S. 313; Manchester v. Massachusetts, 139 U. S. 240; Organ v. State, 56 Ark. 267; State v. Geer, 61 Conn. 144;
no cession of territory, or of public or private property; and that the states may by law regulate the use of fisheries and
Bennett v. American Express Co., 83 Maine, 236: the Massachusetts oleomargarine law of 1891 to prevent deception by imitating butter: Plumley v. Massachusetts, 155 U. S. 461; see In re Worthen, 58 Fed. Rep. 467; Ex parte Scott, 66 id. 45; Com'th v. Schollenberger, 156 Penn. St. 201; Com'th v. Huntley, 156 Mass. 236; an Act imposing a penalty for delay in delivering a telegram: Western U. T. Co. v. Bright, 90 Va. 778; an Act forbidding certain kinds of fish caught within the State to be shipped out of the State: Ibid.; State v. Northern P. E. Co. (Minn.), 59 N. W. Rep. 1100; suits against carriers in State courts after legislation by Congress upon the subject: Murray v. Chicago & N. W. Ry. Co., 62 Fed. Rep. 24; St. Joseph & G. I. R. Co. v. Palmer, 38 Neb. 463; State laws prohibiting the sale of foreign bonds, which are a species of lottery: Ballock v. State, 73 Md. 1; Acts regulating the running of trains: Chicago & A. R. Co. v. People, 105 Ill. 657; State v. Gladson (Minn.), 59 N. W. Rep. 487; Lake Shore & M. S. Ry. Co. v. State, 8 Ohio Cir. Ct. 220; or rates on railroads within one State: Wabash, &c., Ry. Co. v, Illinois, 118 U. S. 557; Stone v. Trust Co., 116 U. S. 307; Chicago & G. T. Ry. Co. v. Wellman, 143 U. S. 331; an Act imposing penalties for neglect to fence a railroad: Minneapolis & St. L. Ry. Co. v. Beckwith, 129 U. S. 26; or in delivering telegrams: Western U. T. Co. v. James, 90 Ga. 254; or allowing damages against a railroad for injury by fire: McCandless v. Richmond & D. R. Co., 38 S. C. 103; service of a summons on a non-resident passing through the State to attend court in another State as a witness: Holyoke &c. Co. v. Ambden, 55 Fed. Rep. 593; an Act making grain elevators public warehouses, and prescribing rates of charges
therefor: Brass v. North Dakota, 153 U. S. 391; Budd v. New York, 143 U. S. 517; State laws taxing the franchise of foreign corporations, or their capital used in the State: People v. Wemple, 131 N. Y. 64; Horn S. M. Co. v. New York, 143 U. S. 305; Lehigh Valley R. Co. v. Pennsylvania, 145 U. S. 192, 205; Maine v. Grand Trunk Ry. Co., 142 U. S. 217; Pacific Express Co. v. Seibert, id. 339; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18; Att.-Gen. v. Western U. T. Co., id. 40; Pickard v. Pullman S. Car Co., 117 U. S. 34; Wabash, &c. Ry. Co. v. Illinois, 118 U. S. 557; Ouachita Packet Co. v. Aiken, 121 U. S. 444; Fargo v. Stevens, id. 220; Pembina C. S. M. Co. v. Pennsylvania, 125 U. S. 181; New York, &c. R. Co. v. Pennsylvania, 158 U. S. 431; Southern Ry. Co. v. Asheville, 69 Fed. Rep. 359; Sanford v. Poe, id. 546; or relief granted by the courts to protect a lawful structure like a bridge across navigable waters. Texas & P. Ry. Co. v. Interstate Trans. Co., 155 U. S. 585.
The 14th Amendment does not guarantee to the citizen of a State the right to contract therein in violation of its laws; and such a business as that of insurance, including marine insurance, is not commerce in such a sense as to prevent a State from prescribing and enforcing conditions on which a foreign insurance company can do business in the State. Hooper v. California, 155 U. S. 648; State v. Phipps, 50 Kansas, 609; Philadelphia Fire Ass'n v. New York, 119 U. S. 110. The powers conferred upon the general government with respect to interstate commerce and the postal service are not dormant, having been the subject of legislation by Congress, and it may exercise such powers by forcibly removing obstructions to their exercise or appeal to the civil courts for
oyster-beds within their territorial limits, though upon navigable waters, provided the free use of the waters for purposes of navigation and commercial intercourse be not interrupted. (h)1
(h) In the case of Groves v. Slaughter, 15 Peters, 449, there was no opinion of the court on the question of the internal commerce of the states as to the slave-trade; but two of the judges (Ch. J. Taney and Mr. Justice McLean) declared their opinion to be, that the power to regulate traffic in slaves between the different states resided in the states separately and exclusively; that each had a right to decide for itself whether it would or would not allow slaves to be brought within its limits from another state, either for sale or otherwise, and to prescribe the manner and mode of their introduction, and the conditions; that the Constitution did not consider slaves as merchandise, and that the action and regulation of the several states on this subject did not trench upon the power of Congress to regulate commerce "among the several states," and could not be controlled by it. It may not be amiss to observe, that in the above case of Groves v. Slaughter it was held that the clause in the constitution of the State of Mississippi, of 1832, declaring that the introduction of slaves into that state as merchandise or for sale should be prohibited after the 1st of May, 1833, was not operative per se, so as to invalidate a contract of sale of a slave introduced in violation
1 A. Regulation of Commerce. — (a) Powers of Congress and of the States. — The power to regulate commerce in matters requiring a general system and uniform rule is in Congress exclusively, Cooley v. Board of Wardens, 12 How. 299, 319; Hinson v. Lott, 8 Wall. 148, 152; Gilman v. Philadelphia, 3 Wall. 713, 726, 727; Steamship Co. v. Portwardens, 6 Wall. 31; Crandall v. Nevada, ib. 35; Erie Railway v. State, 2 Vroom (31 N. J.), 531, 545; and in all cases the power of Congress is paramount when exercised, Wheeling Bridge Case, infra; Silliman
v. Hudson R. Bridge Co., 4 Blatchf. 74, 395; 1 Black, 582; 2 Wall. 403; Works v. Junction R. R., 5 McL. 425; Hinson v. Lott, 8 Wall. 148, 151; United States v. Duluth, 1 Dillon, 469. But it is difficult to determine in some cases whether Congress has acted in such a way as to exclude state legislation or not. Thus, in the case of Pennsylvania v. Wheeling Bridge Co., 13 How. 518, it appeared that Congress had regulated navigation on the Ohio River by licensing vessels, establishing ports of entry, imposing duties on masters of boats, &c., and had sanctioned
relief by injunction, even though such obstructions consist of acts which violate the criminal law. In re Debs, 158 U. S. 564. The police power of a State does not enable it to regulate, at points beyond the State, telegraphic messages received within the State. Western U. T. Co. v. Pendleton, 122 U. S. 347. While a State cannot impose a tax or burden upon the privilege of doing the business of interstate commerce, it can place a property tax on the instrumentalities engaged in such commerce, the value of the property being the basis of taxation. Marye v.
Baltimore & 0. R. Co., 127 U. S. 117; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18; Cleveland &c. Ry. Co. v. Backus, 154 U. S. 439.
The obligations assumed by a common carrier engaged in interstate commerce are determined by the common law where it has not been changed by competent legislative action. Murray v. Chicago & N. W. Ry. Co., 62 Fed. Rep. 24. The Interstate Commerce Act (24 St. at L. 379; 25 id. 855) limits railroads engaged in interstate commerce to the freight charges named in their published schedules, and
9. Progress of the National Jurisprudence. — I have now finished the second general division of this course of lectures, relating to
of the constitutional provision, and that it was only mandatory upon the state legislature, and required their action to give it effect. The decisions in the state courts of Mississippi were contrary, and they held that the prohibition in the constitution was a declaration of a principle, and binding as a supreme law, without the addition of legislative sanction, and that a contract of sale of a slave in violation of it was void. This question was discussed in a masterly manner by Ch. J. Sharkey, in the case of Brien v. Williamson, [7 How. 14,] decided in the High Court of Errors and Appeals of the State of Mississippi, in March, 1843, in favor of the construction and effect already given to the constitution of that state, by the state courts, and in opposition to that given in the case of Groves v. Slaughter. The case of Cotton v. Brien, 6 Rob. (La.) 115, is to the same effect as the decision in Mississippi. [1. Power of Congress. — The
a compact between Virginia and Kentucky that the use and navigation of the river should be free and common to the citizens of the United States. Defendants, however, by authority of Virginia, put a bridge across the river which at certain states of the water obstructed navigation. The Supreme Court held that Congress had acted sufficiently in the premises, that the power of Congress to regulate commerce included the power to regulate navigation, and that the court had jurisdiction to decree the removal of the bridge at the suit of the State of Pennsylvania. In S. C., 18 How. 421, a statute legalizing the bridge, which had been
state legislation not consistent therewith is invalid. Gulf, C. & S. Ry. Co. v. Hefley, 158 U. S. 98.
Tribunals for adjusting discriminating and unfair interstate rates were provided for by the Act of Congress of Feb. 4, 1887 (24 St. at L. 379.) See Ex parte Koehler, 30 Fed. Rep. 867; Missouri & Pac. Ry. Co. v. Texas & Pac. Ry. Co., 31 id. 862. Sect. 12 of this Act, enabling the circuit courts to use their process in aid of inquiries before the Interstate Commerce Commission, is constitutional. Interstate Commerce Commission v. Brimson, 154 U. S. 447.
The Act of July 2, 1890 (26 St. at L.
passed in consequence of the former decision, was held lawful. (Gray v. Clinton Bridge, 7 Am. Law Reg. N. S. 149; The Clinton Bridge, 10 Wall. 454.) Gilman v. Philadelphia, 3 Wall. 713, was very like the Wheeling Bridge case, but was decided the other way. Mr. Justice Clifford makes it pretty clear by his able dissenting opinion that Congress had regulated navigation on the waters which were crossed by the bridge complained of, and the decision, if consistent with the Wheeling Bridge case, would seem to stand on the ground that in the latter the provision that the navigation of the Ohio should be free, was directly contravened, whereas
209) declares illegal unlawful monopolies, contracts, and combinations in restraint of trade or commerce among the several States or with foreign nations. See In re Greene, 52 Fed. Rep. 104; Farmers' L. T. &c. Co. v. No. Pac. R. Co., 60 id. 803; Thomas v, Cincinnati, &c. Ry. Co., 62 id. 803; In re Grand Jury, id. 828, 840; United States v. Cassidy, 67 id. 698. The Act of 1890 is not an invasion of the right of trial by jury. Interstate Commerce Commission v. Brimson, 154 U. S. 447; United States v. Debs, 64 Fed. Rep. 724; 63 id. 436. An injunction against a conspiracy defined in the Act of July 2, 1890, § 5, may be made operative against partic-
the government and constitutional jurisprudence of the United States. Though I have considered the subject in a spirit of free
power vested in Congress to regulate interstate and foreign commerce includes the right to regulate all the means and instruments by which such commerce is earned on, and which might be used by the states to discriminate in any way against such commerce. Thus, it has been held that interstate telegraphic communication may be regulated by Congress. Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1; Telegraph Co. v. Texas, 105 U. S. 460. No definite rule has been, or perhaps can be, laid down as to when the power is absolutely exclusive, and when, on the other hand, it depends upon an act of Congress assuming to take control of the subject. It has been said to be thus exclusive when the subject is national in character and admits of a uniform regulation. County of Mobile v. Kimball, 102 U. S. 691; Welton v. Missouri, 91 U. S. 275; Henderson v. Mayor, 92 U. S. 259; Hall v. De Cuir, 95 U. S.
in the other case the regulations of Congress, if they applied to the waters in question, were not inconsistent with the continuance of the bridge. There is a further distinction, that the whole of the Schuylkill River (the river bridged in Gilman's case) lay within the State of Pennsylvania; but the Supreme Court expressly assert that the power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all navigable waters of the United States which are accessible from a state other than those in which they lie. 3 Wall. 724, 725; The Daniel Ball, 10 Wall. 557, 564.
Other decisions are that a state cannot impose restrictions on a licensed coaster in addition to those imposed by Congress, Sinnot v. Davenport, 22 How. 227; although the vessel was at the time employed within the waters of a state in lightering vessels in the foreign or coastwise trade, Foster v. Davenport, 22 How. 244.
When Congress has not acted, the states have more power, and, at least in matters of local interest, they may make local regulations. Thus, it appears that they may authorize the construction of bridges, &c., over navigable waters within their limits. Gilman v. Philadelphia, su-
ipants not named in the order, but within its terms, and served with the writ. United States v. Elliott, 64 Fed. Rep. 27; 62 id. 801; see United States v. Alger, id. 824.
The judiciary are not entitled to enter upon such purely administrative duties as the framing of rates for carriage, but may restrain that which, in the form of regulating rates, amounts to a denial to property owners engaged in transportation of that equal protection which is the constitutional right of owners of other kinds of property. Reagan v. Farmers' Loan Trust Co., 154 U. S. 362.
The decision in the above oleomar-
garine case (Plumley v. Massachusetts, 155 U. S. 461), was that it is within the power of the States to exclude from their markets articles of food of a deceptive or fraudulent character, which are likely or liable to be sold or taken for what they are not; and that such articles, though subjects of interstate commerce, are at all times within the operation of the police regulations of the States. It is also within the police power of a State to require foreign rags arriving at its principal port to be disinfected, and to make the expense thereof a lien on the rags. Train v. Boston Disinfecting Co., 144 Mass. 523.
and liberal inquiry, as the series of decisions in the federal courts have been brought under examination, I have uniformly felt, and
485; cases infra. It extends to commerce between points in the same state, if such commerce involves transit through outside territory. Lord v. Steamship Co., 102 U. S. 541. — 2. Power of States. — The states have exclusive control of all matters of purely internal concern. Thus, they have an unlimited right of taxing all the property within their borders, provided they do not so exercise the power as to discriminate against property brought into the state from outside. The question of whether the tax is laid on imported goods in original packages or at a later stage would seem to be immaterial, providing the purpose and effect of the tax is to discriminate against such goods. Thus, a law requiring a license fee from agents selling imported goods which was not required from agents selling goods manufactured in the state, has been held invalid. Webber v. Virginia, 103 U. S. 344. See further, Cook v. Pennsylvania, 97 U. S. 566; Welton v. Missouri, 91 U. S. 275; Marshalltown v. Blum, Iowa, 1882; New Orleans v. Tow Boat Co., 33 La. Ann. 647; Higgins v. Lime, 130 Mass. 1. Comp. Corson v. State, 57 Md. 251, where there was no such discrimination. In general, any restrictions, direct or indirect, upon the entry into, exit from, or passage through a state, of persons, property, or communications, is beyond the limit of state power. Cases supra; Chy Lung v. Freeman, 92 U. S. 275; State Freight Tax, 15 Wall. 232; Indiana v. American Express Co., 7 Biss. 227; Council Bluffs v. K., C. &c. R. R. Co., 45 Iowa, 338. But a state law is valid the primary purpose and effect of which is to regulate a matter of purely internal concern, though it may incidentally affect interstate and foreign commerce; though Congress may at any time supersede such a law so far as it affects interstate or foreign commerce. Thus, state regulation of the rates to be charged by railroads and warehouses within the state has been held
pra. See Comm. v. New Bedford Bridge, 2 Gray, 339; United States v. New Bedford Bridge, 1 W. & M. 401; Silliman O. Hudson R. Bridge Co., 4 Blatchf. 74, 395; 1 Black, 582; Albany Bridge Case, 2 Wall. 403; The Passaic Bridges, 3 Wall. 782; Illinois R. Packet Co. v. Peoria Bridge Ass., 38 Ill. 467; Woodman v. Kilbourn Man. Co., 6 Am. L. Reg. N. S. 238. They may regulate pilotage and impose penalties on vessels not taking pilots. Cooley v. Board of Wardens, 12 How. 299. See Cisco v. Roberts, 36 N. Y. 292; Steamship Co. v. Joliffe, 2 Wall. 450. (But a law entitling portwardens to a fee, whether called on for any service or not, from every vessel arriving in that port, is void. Steamship Co. v. Portwardens, 6 Wall. 31. See People v. Brooks, 4 Den. 469.) They may protect their oyster fisheries, even by inflicting the forfeiture of a vessel enrolled and licensed under United States
laws, for a breach of proper state regulations. Smith v. Maryland, 18 How. 71.
Although, as has been said, a stream may be entirely within one state and yet be a highway for commerce with another, and subject to the regulations of Congress for that purpose, it seems to be consistent with this doctrine that a state may grant the exclusive navigation of a river lying wholly within its limits and running into the sea, above the point of navigability from the sea, the waters in question not being part of a line of commerce to points outside the state. Veazie v. Moor, 14 How. 568.
(b) Over what Commerce. — Again, it is always conceded that Congress has no control over commerce which is earned on entirely within the limits of a state, and which does not extend to or affect other states (except, according to Chase,
it has been my invariable disposition to inculcate, a strong sentiment of deference and respect for the judicial authorities
valid. Munn v. Illinois, 94 U. S. 113; Chicago, &c. R. R. Co. v. Iowa, ib. 155; Peik v. Chicago, &c. R. R. Co., ib. 164; W., St. L., &c. Ry. Co. v. The People, 105 Ill. 236. A state may also, subject to the superior right of Congress, pass laws jn aid of commerce where the subject-matter is essentially local in character; e. g., for building bridges, improving navigable waters, &c. County of Mobile v. Kimball, 102 U. S. 691; Pound v. Turck, 95 U. S. 459; Wisconsin v. Duluth, 96 U. S. 379; South Carolina v. Georgia, 93 U. S. 4; Sherlock v. Ailing, ib. 99; Bridge Co. v. United States, 105 U. S. 470; Escanaba Co. v. Chicago, 107 U. S. 678; Miller v. Mayor 109 U. S. 385. A state has the further power to pass such laws as are reasonably necessary to the regulation of its internal police, though such laws may incidentally affect interstate or foreign commerce. Thus, it may pass inspection laws, Turner v. Maryland, 107 U. S. 38; S. C. 55 Md. 240; may make reasonable regulations as to landing-places along the borders of navigable rivers, Packet Co. v. Catlettsburg, 105 U. S. 559; Packet Co. v. St. Louis, 100 U. S. 423; Vicksburg v. Tobin, ib. 430; Packet Co. v. Keokuk, 95 U. S. 80; may provide that certain kinds of property shall not be allowed within its borders in such a condition as to be dangerous, Harrigan v. Conn. River Lumber Co., 129 Mass. 580; may impose license fees even upon vessels engaged in interstate commerce, Transportation Co. v. Wheeling, 99 U. S. 273; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365. But such laws must not invade the exclusive domain of Congress, Foster v. Master, &c., 94 U. S. 246; Henderson v. Mayor, 92 U. S. 259; Salzenstein v. Mavis, 91 Ill. 391. See further on subject, Railroad Co. v. Richmond, 19 Wall. 584; King v. American Trans. Co., 1 Flip. 1; Sweatt v. Boston, &c. R. R. Co., 3 Cliff. 339. — B.]
C. J., as a necessary and proper means for carrying into execution some other power expressly granted or vested. United States v. Dewitt, 9 Wall. 41, 44; ante, 254, n. 1), On these principles a police regulation of sales of inflammable oils was held to have no constitutional operation on sales within the several states. United States v. Dewitt, supra. So, a law requiring persons not to engage in certain kinds of business, such as selling liquor by retail, without having obtained a license from the United States, was interpreted as a mere form of imposing a tax, and it was intimated that such a license could not give authority to carry on the business within a state. License Tax Cases, 5 Wall. 462, 471. It would not matter probably that commerce wholly within one state was carried on by means of the navigable waters of the United States. The waters might be subject to
the control of Congress, while the particular commerce, as such, was not. The Daniel Ball, 10 Wall. 557, 565; The Bright Star, 1 Woolw. 266, 276. See State Tonnage Tax Cases, 12 Wall. 204, 215.
But a pretty liberal view is taken by the Supreme Court of what constitutes commerce between the several states, at least when it consists of transportation on the navigable waters of the United States. It is enough to subject a vessel to the regulations of Congress that she is engaged in carrying goods destined to a point outside the state over such waters, although she does not run in connection with any of the lines leading to such points, and the waters in question lie wholly within the state. The Daniel Ball, 10 Wall. 557
Commerce by Land, &c. — In the Daniel Ball the court expressly refrained from expressing an opinion upon the power of
of the Union. No point or question of any moment touching the construction of the powers of the government, and which
Congress over interstate commerce when carried on by land transportation, but it has been asserted elsewhere that the power extends to the regulation of railroads which have voluntarily become parts of lines of communication between the states, or to the creation of such roads. The Clinton Bridge, 1 Woolw. 150, 162; S. C. 8 Am. Law Reg. N. S. 149. But see 12 Op. Att-Gen. 337. So it has been thought that it does to the case of the Atlantic telegraphs, 12 Op. Att-Gen. 337; and to telegraphs on land, Western Un. Tel. Co. v. Pacific States T. Co., 5 Nev. 102. The right to establish ferries is reserved to the states. Conway v. Taylor, 1 Black, 603; Fanning v. Gregoire, 16 How. 524; Marshall v. Grimes, 41 Miss. 27; Freeholders v. State, 4 Zabr. 718.
(c) What is a regulation of commerce is a question which has arisen in determining the validity of some state laws. It has been held that a state may tax all money and exchange brokers. Nathan v. Louisiana, 8 How. 73. And legacies payable to aliens. Mager v. Grima, 8 How. 490. So it may require a deposit from insurance companies incorporated in other states before they are licensed to carry on business within its limits. Paul v. Virginia, 8 Wall. 168 (this case also decided that corporations are not citizens so far as to be entitled to the privileges of citizens of another state than that wherein they are incorporated); Ducat v. Chicago, 10 Wall. 410; Liverpool Ins. Co. v. Massachusetts, ib. 566. The case of Crandall v. Nevada is stated ante, 429, n. 1. And Norris v. Boston, stated 439, n. (e), was reversed in the Supreme Court, Passenger Cases, 7 How. 283. A state may enforce a law prohibiting the sale of liquors, either domestic or imported, in less than certain large quantities, without a state license, but not affecting the
sale by the importer in the original packages. License Cases, 5 How. 504. In Pervear v. Commonwealth, 5 Wall. 475, 479, it did not appear that the liquor of which the sale in original packages was prohibited was not home-made (see, also, Downham v. Alexandria Council, 10 Wall. 173), or in other hands than those of the importer, and a state may tax sales of goods from abroad in the original packages, by one not the importer, for instance, one who purchased them when at sea, but whose title did not accrue until the goods were in port. Waring v. The Mayor, 8 Wall. 110. Under a uniform tax on all sales made within its limits, it may tax goods imported from other states. Woodruff v. Parham, 8 Wall. 123; Hinson v. Lott, ib. 148. So it has been held by state courts that taxes on the gross amount of business of express companies within the state, &c., are valid. Wolcott v. The People, 17 Mich. 68; Southern Exp. Co. v. Hood, 15 Rich. (S. C.) 66; Reading R. R. v. Pennsylvania, 15 Wall. 284; 62 Penn. St. 286. Compare Erie R. Co. v. State, &c., infra.
On the other hand, a state cannot impose a stamp duty on bills of lading for gold and silver exported from the state. Almy v. California, 24 How. 169. This case was discussed as if it had been one of exports to a foreign country, and a duty on the bill was thought to be in effect a duty on the article exported. In a subsequent case it was pointed out that the gold was only transported from one state to another, although over the high seas, and the clause prohibiting the states to tax exports and imports was thought not to apply: hut the case was said to be rightly decided within Crandall n. Nevada, ante, 429, n. 1; and also on the ground that the tax was in conflict with the power of Congress to regulate commerce. Woodruff v.
{440} has received an authoritative determination, has been intentionally omitted. There are several important constitutional questions which remain yet to be settled; but if we recur back to the judicial annals of the United States since the year 1800, we shall find that many of the most interesting discussions which had arisen, and which were of a nature to affect deeply the tranquillity of the nation, have auspiciously terminated.
The definition of direct taxes within the intendment of the Constitution; the extent of the power of Congress to regulate the power to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies; the power of Congress over the militia of the states; the power of exclusive legislation over districts and ceded places; the mass of implied powers incidental to the express powers of Congress, such as the power to institute and protect an incorporated bank, to lay a general and indefinite embargo, and to give to the United States, as a creditor, priority
Parham, 8 Wall. 123, 137. On the latter ground a distinctive state tax on the business of carrying from state to state, in the hands of foreign corporations habitually doing business in the state, graduated by the weight of the goods and the number of passengers carried, was held void. Erie Railway Co. v. State, 2 Vroom (31 N. J.), 531; Reading R. R. v. Pennsylvania, 15 Wall. 232. Compare Commonwealth v. Phil. & Read. R. R., 62 Penn. St. 286, &c., supra. A state cannot impose a discriminating tax on non-residents trading within its limits; but the majority of the court put this on article 4, § 2, as to the privileges of citizens of each state, which, as has been seen (Paul v. Virginia, supra), does not apply to the preceding case of corporations. Ward v. Maryland, 12 Wall. 418. See 15 Wall. 300.
B. The clause prohibiting the states to lay any duty on tonnage is admitted by the Supreme Court not to exonerate vessels owned by individuals and belonging to the commercial marine from being taxed by the states as property, with other property of the citizens, on a valuation
of them as such. But a state tax on all steamboats and vessels plying the navigable waters of the state, levied on the basis of their registered tonnage, wholly irrespective of their value, is void, although the vessels are owned by citizens of the state, and trade only between places within the state. State Tonnage Tax Cases, 12 Wall. 204. See also Steamship Co. v. Portwardens, 6 Wall. 31, 35, supra. [A state cannot impose a tonnage tax to obtain means to support police regulations. Peete v. Morgan, 19 Wall. 581. The text of the note is supported by Cannon v. New Orleans, 20 Wall. 577; Inman Steamship Co. v. Tinker, 94 U. S. 238. Comp. Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. St. Louis, 100 U. S. 423. The latter cases hold that a city may collect reasonable fees for the use of wharfage facilities which have been erected by the city, and that such fees may be proportioned to the tonnage of the vessels using such wharves. See further, Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365. — B.]
of payment, — have all received elaborate discussion in the Supreme Court, and they have, to a certain extent, been ascertained and defined by judicial decisions. So, also, the extent of the constitutional prohibitions upon the states not to pass ex post facto laws; and not to pass laws impairing the obligation of contracts; and not to impede or control by taxes, or grants, or any other exercise of power, the lawful authorities, or institutions, or rights and privileges depending on the Constitution and laws of the United States, — has been explored and declared by a series of determinations, which have contributed, in an eminent degree, to secure and consolidate the Union, and to elevate the dignity and enlarge the influence of the national government.
The power of the President to remove all executive officers in his sound discretion has been settled, not indeed judicially, but perhaps as effectually by the declared sense of the legislature, and the uniform acquiescence and practice of the government. The absolute and uncontrollable {441} efficacy of the treaty-making power has also been definitively established, after a struggle against it on the part of the House of Representatives, which, at one time, threatened to disturb the very foundations of the Constitution.1
The comprehensive claims of the judicial power, as being coextensive with all cases that can arise under the Constitution and laws and treaties of the Union, have, in several instances, been powerfully and successfully vindicated. The appellate jurisdiction of the Supreme Court, over the judgments and decrees of the state courts, under certain circumstances, was defined with great accuracy and precision in the 25th section of the act of 1789, establishing the judicial courts; and the free and independent exercise of that jurisdiction, so essential to the maintenance of the authority and efficiency of the government of the United States, in criminal as well as in civil cases, has been hitherto happily sustained. The means of enforcing obedience, when not voluntarily rendered, to the decision of this appellate jurisdiction, have not been required to be practically applied; and therefore it is a question which the court has not thought it incumbent on them, as yet, to decide, whether the exercise of that jurisdiction would permit compulsory process to the state courts, with the
1 But see 311, n. 1, as to the President's power of removal now, and as to the treaty-making power, 286, n. 1, ante.
ordinary methods of enforcing process. The act of Congress (a) provided only that, on appeal from the judgment or decree of a state court, the writ of error should have the same effect as if the judgment or decree had been rendered or passed in a circuit court, and the proceeding upon a reversal should be the same, except that the Supreme Court, instead of remanding the cause for a final decree, may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. And with respect to other branches of the judicial power, it may {442} be generally observed, that the extensive sway of admiralty and maritime jurisdiction; the character of the parties necessary to give cognizance to the federal courts; the faith and credit which are to be given in each state to the records and judicial proceedings in every other state; the sovereignty of Congress over all its territories, without the bounds of any particular state; and the entire and supreme authority of all the constitutional powers of the nation, when coming in collision with any of the residuary or asserted powers of the states, — have all been declared (as we have seen in the course of these lectures) by an authority which claims our respect and obedience. In the first ten or twelve years after the institution of the national judiciary, or from 1790 to 1801, the scanty decisions of the Supreme Court are almost all to be found in the third volume of Dallas's Reports. The first great and grave question which came before them was that respecting the liability of a state to be sued by a private creditor; and it is a little remarkable that the court, in one of its earliest decisions, should have assumed a jurisdiction which the authors of the Federalist had a few years before declared to be without any color of foundation. During the period I have mentioned, the federal courts were chiefly occupied with questions concerning their admiralty jurisdiction, and with political and national questions growing out of the Revolutionary War, and the dangerous influence and action of the war of the French revolution upon the neutrality and peace of our country. It was during this portion of our judicial history that the principles of the doctrines of expatriation, of ex post facto laws, of constitutional taxes, and of the construction and obligation of the treaty of 1783 upon the rights of the British creditors, were ably discussed and firmly declared. (a) September 24, 1789, sec. 25.
The reports of Mr. Cranch commenced with the year 1801, and the nine volumes of those reports cover the business of a very active period, down to the year 1815. The {443} Supreme Court was occupied with many great and momentous questions, and especially during that portion of the time in which the United States had abandoned their neutral and assumed a belligerent character. It is curious to observe in these reports the rapid cultivation and complete adoption of the law and learning of the English admiralty and prize courts, notwithstanding those courts had been the constant theme of complaint and obloquy in our political discussions for the fifteen years preceding the war. In the last three volumes of Mr. Cranch, the court was constantly dealing with great questions, embracing the rights and the policy of nations; and the prize and maritime law, not of England only, but of all the commercial nations of Europe, was suddenly introduced, and deeply and permanently interwoven with the municipal law of the United States. We perceive, also, in these volumes, the constant growth and accumulation of cases on commercial law generally, and relating to policies of insurance, negotiable paper, mercantile partnerships, and the various customs of the law merchant. The court was likewise busy in discussing and settling important principles growing out of the limited range of other matters of federal cognizance, and relating to the law of evidence, to frauds, trusts, and mortgages. They were engaged, also, with the doctrine of the limitation of suits, the contract of sale, and with the more enlarged subjects of domicile, of the lex loci, of neutrality, and of the numerous points of international law.
By the time of the commencement of Mr. Wheaton's reports, in 1816, the decisions of the Supreme Court had embraced so many topics of public and municipal law, and those topics had been illustrated by so much talent and learning, that, for the first time in the history of this country, we were enabled to perceive the broad foundations and rapid growth of a code of national jurisprudence. That code has been growing and improving ever since, and it has now become a solid and magnificent structure; and it seems destined, at no very distant period of time, to cast a shade {444} over the less elevated, and, perhaps, we must add, the less attractive and ambitious, systems of justice in the several states. The most interesting part of Mr. Wheaton's
reports are those which contain the examination of those great constitutional questions which we have been reviewing; and I cannot conceive of anything more grand and imposing in the whole administration of human justice, than the spectacle of the Supreme Court sitting in solemn judgment upon the conflicting claims of the national and state sovereignties, and tranquillizing all jealous and angry passions, and binding together this great confederacy of states in peace and harmony, by the ability, the moderation, and the equity of its decisions.
There are several reasons why we may anticipate the still increasing influence of the federal government, and the continual enlargement of the national system of law in magnitude and value. The judiciary of the United States has an advantage over many of the state courts, in the tenure of the office of the judges, and the liberal and stable provision for their support. The United States are, by these means, fairly entitled to command better talents, and to look for more firmness of purpose, greater independence of action, and brighter displays of learning. The federal administration of justice has a manifest superiority over that of the individual states, in consequence of the uniformity of its decisions, and the universality of their application. Every state court will naturally be disposed to borrow light and aid from the national courts, rather than from the courts of other individual states, which will probably never be so generally respected and understood. The states are multiplying so fast, and the reports of their judicial decisions are becoming so numerous, that few lawyers will be able or willing to master all the intricacies and anomalies of local law, existing beyond the boundaries of their own state. Twenty-six independent state courts of final jurisdiction over the same questions, arising upon the same general {445} code of common and of equity law, must necessarily impair the symmetry of that code.
The danger to be apprehended is, that students will not have the courage to enter the complicated labyrinth of so many systems, and that they will, of course, entirely neglect them, and be contented with a knowledge of the law of their own state, and the law of the United States, and then resort for further assistance to the never-failing fountains of European wisdom.
But though the national judiciary may be deemed pre-eminent in the weight of its influence, the authority of its decisions, and in the attraction of their materials, there are abundant considerations to cheer and animate us in the cultivation of our own local law. The judicial power of the United States is necessarily limited to national objects. The vast field of the law of property, the very extensive head of equity jurisdiction, and the principal rights and duties which flow from our civil and domestic relations, fall within the control, and we might almost say the exclusive cognizance, of the state governments. We look essentially to the state courts for protection to all these momentous interests. They touch, in their operation, every chord of human sympathy, and control our best destinies. It is their province to reward and to punish. Their blessings and their terrors will accompany us to the fireside, and "be in constant activity before the public eye." The elementary principles of the common law are the same in every state, and equally enlighten and invigorate every part of our country. Our municipal codes can be made to advance with equal steps with that of the nation, in discipline, in wisdom, and in lustre, if the state governments (as they ought in all honest policy) will only render equal patronage and security to the administration of justice. The true interests and the permanent freedom of this country require that the jurisprudence of the individual states should be cultivated, cherished, and exalted, and the dignity and reputation of the state authorities sustained with becoming {446} pride. In their subordinate relation to the United States, they should endeavor to discharge the duty which they owe to the latter, without forgetting the respect which they owe to themselves. In the appropriate language of Sir William Blackstone, and which he applied to the people of his own country, they should be "loyal, yet free; obedient, and yet independent."
