CHAPTER X:
                       THE JUDICIAL POWER

  88. The constitutional provisions.
  89. The theory of a judicial system under the common law.
  90. The necessity of a federal judiciary.
  91. Cases in law and equity, etc.
  92. Cases affecting ambassadors, etc.
  93. Admiralty.
  94. Controversies to which the United States shall be a party.
  95. Controversies between citizen of different states.
  96. Controversies between two or more states.
  97. Controversies between a state and citizens of another
      state.
  98. Federal jurisdiction, etc.
  99. Exclusive and concurrent jurisdiction.
 100. The courts of the United States.
 101. Original jurisdiction.
 102. Appellate and supervisory jurisdiction.
 103. The necessity of a judicial "case".
 104. The federal judiciary.
 105. The federal supremacy.
 106. Constitutional and statutory construction.
 107, Judgments of courts.
 108. Treaties.
 109. The law administered in the federal courts.
 110. Courts martial and impeachments.
 111. The IV Amendment.
 112. The V Amendment (a) Due process of law; (b) Jeopardy, etc..
 113. The VI Amendment.
 114. The VII and VIII Amendments.
 115. The XI Amendment.
 116, The relations between the federal and state courts.
 117. The XIV Amendment as affecting state judicial proceedings.
 118. The "full faith and credit" clause.


The constitutional provisions.

88.  Section 1  of Article III declares, that "the Judicial Power
of the United States shall be vested in one Supreme Court, and in
such inferior  court's as  the Congress  may from  time  to  time
ordain and  establish.  The  judges,  both  of  the  Supreme  and
inferior courts,  shall hold  their offices during good behavior,
and  shall,  at  stated  times,  receive  for  their  services  a
compensation,  which   shall  not   be  diminished  during  their
continuance in  office." Section  2 declares  that "the  judicial
power shall extend to all cases, in law and equity, arising under
this Constitution,  the laws  of the  United States, and treaties
made, or which shall be made, under their authority; to all cases
affecting ambassadors, other public ministers and consuls; to all
cases of admiralty and maritime jurisdiction; to controversies to
which the  United States  shall  be  a  party;  to  controversies
between two  or more  states; between  a state  and  citizens  of
another state;  between citizens  of  different  states;  between
citizens of  the  same  state  claiming  lands  under  grants  of
different states,  and between  a state, or the citizens thereof,
and foreign states, citizens, or subjects. In all cases affecting
ambassadors, other  public ministers,  and consuls,  and those in
which a  state shall  be party,  the  Supreme  Court  shall  have
original jurisdiction.  In all  the other cases before mentioned,
the Supreme  Court shall  have appellate jurisdiction, both as to
law and fact, with such exceptions, and under such regulations as
the Congress shall make. The trial of all crimes, except in cases
of impeachment  shall be by jury; and such trial shall be held in
the state  where the  said crime  shall have  been committed; but
when not  committed within  any state, the trial shall be at such
place or places as the Congress may by law have directed."

     Clause 2  of Article VI declares that "this Constitution and
the laws  of the  United States  which shall be made in pursuance
thereof; and all treaties made, or which shall be made, under the
authority of  the United  States, shall be the supreme law of the
land; and  the judges  in every  state   shall be  bound thereby,
anything in the constitution or laws of any state to the contrary
notwithstanding."

     The IV  Amendment declares  that "the right of the people to
be secure  in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon  probable cause, supported by oath
or affirmation,  and particularly  describing  the  place  to  be
searched, and the persons or things to be seized."

     The V  Amendment provides  that no  person shall  be held to
answer for  a capital,  or otherwise  infamous crime, unless on a
presentment or  indictment of  a  grand  jury,  except  in  cases
arising in  the land  or naval forces, or in the militia, when in
actual service  in time  of war  or public  danger; nor shall any
person be  subject for  the same  offense  to  be  twice  put  in
jeopardy of life and limb; nor shall be compelled in any criminal
case to  be a  witness against  himself, nor be deprived of life,
liberty, or  property, without  due process  of  law;  nor  shall
private  property   be  taken   for  public   use,  without  just
compensation."

     The  VI   Amendment   provides   that   "in   all   criminal
prosecutions, the  accused shall  enjoy the right to a speedy and
public trial,  by an  impartial jury  of' the  state and district
wherein the crime shall have been committed, which district shall
have been  previously ascertained  by law,  and to be informed of
the nature and cause of the accusation; to be confronted with the
witnesses against  him; to  have compulsory process for obtaining
witnesses in  his favour,  and to  have the assistance of counsel
for his defense." The VII Amendment provides that 4 4 in suits at
common law,  where the  value in  controversy shall exceed twenty
dollars, the  right of  trial by  jury shall be preserved, and no
fact tried  by a jury shall be otherwise re-examined in any court
of the  United States,  than according to the rules of the common
law."

     The VIII  Amendment provides  that "excessive bail shall not
be required,  nor excessive  fines imposed, nor cruel and unusual
punishments inflicted."

     The XI  Amendment provides  that "the  judicial power of the
United States shall not be construed to extend to any suit in law
or equity,  commenced or  prosecuted against  one of  the  United
States by  citizens of  another state, or by citizens or subjects
of any foreign state."


The theory of a judicial system under the common law.

89.  Many of  the men  who, as members of the Convention of 1787,
participated in the framing of the Constitution were lawyers, who
had been  trained in,  and had  mastered, the  principles of  the
common law.  When the Convention had determined that there should
be a  judicial department of the government of the United States,
those lawyers naturally found in the common law the principles of
administration which  they deemed  it wise  to adopt. If they had
been asked  to formulate  those principles they would have stated
them substantially as follows:

     It is  the duty  of every  civilized government  to  provide
tribunals  for  the  punishment  of  crimes  and  for  the  final
determination of  private controversies  between individuals. The
accusation cannot  be accepted  as proof of the prisoner's guilt,
nor can  the statement  of a  claim  by  one  individual  against
another be  received as  conclusive evidence  of its validity. In
each case  there must be an inquiry by a tribunal before whom the
respective parties  can appear,  to  whom  they  can  submit  the
evidence and  the arguments  on which they respectively rely, and
who shall authoritatively decide the controversy.

     There are  certain requirements of justice so obviously true
that they  do not  need to  be vindicated  by  argument,  and  so
essential to  the liberty  of the  citizen that their presence or
absence is, in itself, a conclusive test of the existence of free
institutions. Those  requirements are  purity, impartiality,  and
intelligence  of   administration,  with   as  much  rapidity  of
operation as  is consistent  with the  attainment  of  a  correct
result. To  that end  every defendant who is accused of crime, or
against whom  a claim  is  attempted  to  be  enforced  by  civil
process,  is   entitled  to  an  examination  by  an  independent
authority to  determine, upon  a prima  facie presentation of the
case and  of the  evidence supporting  the charge,  whether there
should, or  should not, be a trial; to due notice of the time and
place of trial; to information of the precise charge against him;
to a  reasonable time  in which  to prepare  his defense;  to  be
confronted  with   the  witnesses   against  him;  to  have  full
opportunity of  testing, by  cross-examination, the  testimony of
those witnesses; to have compulsory process for the production of
witnesses on his behalf; and to be fully heard in his defense, at
his option,  either personally  or by  learned counsel of his own
selection.

     Every civil  action aud  every criminal  prosecution involve
two questions:  first, of  fact; did the defendant do, or not do,
the act  with whose commission or omission he is charged? Second,
of law;  is that  act forbidden, and if so, what is the nature of
the remedy  to be given to the Plaintiff, or the punishment to be
inflicted upon  the defendant?  It is  clearly not necessary that
these two  questions should  be determined  at the same time, nor
even by the same tribunal. On the contrary it often is convenient
to dispose  of the  question of  law in  the first  instance. The
defendant may  say that,  admitting for  the sake of argument the
fact that  is charged  against him,  it yet does not constitute a
subject of  legal action  against him.  That preliminary question
can then be determined, resulting, if in favour of the defendant,
in the  dismissal of  the  proceedings  at  that  point,  or,  if
adversely to him, settling the law as applicable to the facts, if
they be  found, upon  subsequent inquiry,  to be  such as alleged
against him.  It is  also clear  that, while  in either  case the
tribunal ought  to act  with integrity,  and to  that end must be
guarded  against   corruption  and  the  perturbing  pressure  of
extraneous circumstances  and undue  influence brought to bear on
behalf of  either party, yet, as the question is of the one class
or the other, different qualifications in the tribunal will be of
greater, or  less, importance  in attaining  a correct result. If
the question  be one  of law,  it is of chief importance that the
tribunal have  a competent  knowledge of  law, and  possess  that
trained judicial  discretion which  will enable  it to  correctly
construe statutes,  and to estimate the relative weight and value
of conflicting  authorities and precedent. If, on the other hand,
the question  be one  of fact,  it is  more  important  that  the
tribunal should  be so  constituted as  to bring to bear upon the
subject that  experience which can only be gained in the pursuits
of active  life, and  should take  as nearly  possible that plain
common-sense  view  of  the  matter  which  the  parties  to  the
controversy would  be likely  to take  if they were not biased by
their interest  in the  result. It  is certain that, as an aid to
the correct  determination of  a question of fact, a knowledge of
law is  of no  use, except in so far as the study of the law as a
science has  developed the  mind and enlarged its powers, but any
advantage from  that source  is more  than counterbalanced by the
tendency of  studious and  contemplative minds  to substitute  an
imaginary world,  peopled with  fictitious beings and animated by
artificial motives,  for the real world in which we live, and, by
the influence  of professional, and especially judicial, training
in the  application  of  technical  rules  and  in  reasoning  by
analogy, to  cause an undue subordination of fact to theory. This
tribunal, as  I have in general terms described it, is that which
the common  law, in  its wisdom,  has provided  in its  system of
trial by  jury.  Wherever  and  whenever  that  system  has  been
honestly and  intelligently  applied,  it  has  not  indeed  been
infallible in  its determinations,  nor  has  it  achieved  ideal
justice, for  it shares  in that  imperfection which is common to
all institutions which are of human origin and operated by finite
agencies,  but  it  has  in  the  vast  majority  of  cases  done
substantial justice. Wherever and whenever that system has seemed
to fail,  it has  so  seemed  because  the  judge  has  not  been
sufficiently learned  and able,  or because the jury has not been
of average  intelligence, or  because the judge has not performed
his proper  functions, or  has permitted  the jury  to  disregard
theirs.

     If the  judge who  presides at  the  trial  be  intelligent,
courageous, and  of sufficient decision of character, he will, by
the application  of the  rules of  evidence, prevent the minds of
the jury  from being  diverted from the true point of inquiry, he
will submit  questions to  them only  upon adequate proof, and he
will, in his charge, put clearly and unmistakably before them the
precise  questions   of  fact  which  it  is  their  province  to
determine, and  by his  instructions upon  the law  of the  case,
conveyed  in  clear  terms,  and  laid  down  with  firmness  and
decision, he  will prevent  them from  being swayed by extraneous
circumstances, and  from misapprehending  either the  question in
the case,  the evidence  relevant to  it, or  the  rules  of  law
controlling their  decision. On the other hand, a judge , however
honest in intention, who talks and does not listen, who yields to
hasty and ill-considered views of the testimony of witnesses, who
anticipates the  arguments of  counsel, who  is  vacillating  and
indecisive in  his determinations  upon questions of evidence, or
who either does not take clear views of the law applicable to the
case, or  fails to  impress upon the jury, with force and energy,
the law  which they  must apply  is a  serious obstruction to the
administration of  justice. So  also is  it  essential  that  the
jurors be  impartial, biased  neither by relation to the parties,
by interest  in the  result of the contest, nor by prejudice, and
that they should be of at least average intelligence. There is no
magic in the jury box to dissipate the mists of prejudice, nor to
convert ignorance  into knowledge,  nor stupidity into sense. Men
of  insufficient   intelligence  cannot  be  expected  to  decide
correctly questions  of fact, either simple or complicated. There
must also  be a  supervisory body  to determine  whether  or  not
justice requires  that the party against whom judgment shall have
been given should have a new trial upon the facts, either because
of error in the tribunal in its application of the law, or in its
admission or  rejection of  evidence, or  in deciding against the
weight of the evidence, or because of the subsequent discovery of
new evidence  which, if  produced at the trial and if believed by
the tribunal  of the  first instance,  ought, in justice, to have
led to a different verdict.

There must  also be  an  appellate  tribunal,  not  to  give  the
unsuccessful litigant a second chance, nor to retry the case upon
the facts,  but to review the record of the case and to set aside
the judgment,  if in  its entry the principles of justice, or the
rules of  law, have  been violated;  or to remit the cause to the
lower court  for retrial,  if that  court shall  be found to have
erred in  the admission  or rejection  of  evidence,  or  if  the
evidence for  the prosecution, taken as a whole, and assuming its
truth, and  drawing all the inferences that can be drawn from it,
is legally  insufficient to  justify the  judgment. It  has  been
found in  all civilized  countries that  an appellate tribunal is
essential to  the maintenance of uniformity in the administration
of the  law, and  to the prevention of tyranny and caprice in the
judges of the courts of first instance.


The necessity of a federal judiciary.

90.  Having regard  to the relation between the United States and
the states,  and bearing  in mind  that the  United States cannot
impose duties  upon  officers  of  the  states,  and  compel  the
performance by  those officers  of the  duties so imposed. (1) it
is, in  an especial  degree, essential  that  the  United  States
should have  the  power  of  establishing  courts  of  civil  and
criminal jurisdiction  for the punishment of offenses against the
laws of the United States, and for the protection and enforcement
of rights  created by the Constitution, laws, and treaties of the
United States.  It is  also necessary  to the  enforcement of the
declared supremacy of the Constitution, laws, and treaties of the
United States, that a court constituted by the United States with
jurisdiction  coextensive  with  the  territory  subject  to  the
Constitution, should  be, so  far  as  regards  all  subjects  of
judicial cognizance,  the final  arbiter by whom the construction
of the Constitution of the United States is to be authoritatively
determined, (2)  for otherwise  the Constitution  might have  one
meaning in  one state,  and a different meaning in another state,
and it  might be construed in one way in one court and in another
way in  another court, (3) and if the legislative, executive, and
judicial departments  of the  several states  were at  liberty to
conclusively determine  for themselves  the construction  of that
instrument, and  the nature and the extent of the restraints upon
freedom of  state action  imposed by  it, those  restraints would
bind any  one state  only in so far as that state might choose to
be bound  at any particular time, and the inevitable result would
be, as  Marshall, C.  J., said  in Cohens  v.  Virginia,  (4)  to
prostrate the  federal government  and its  laws at  the feet  of
every state  in the  Union.  The framers of the Constitution also
deemed it necessary, in order to guard against possible prejudice
in the  courts of  the states  as  affecting  citizens  of  other
states, when  litigants in  those courts, that every citizen of a
state should,  when suing  a citizen  of another  state, have the
option of  bringing his  action in  the federal court within that
other state,  or in  the  court  of  the  state,  as  might  seem
advisable to him.

     The Constitution  has, therefore,  conferred upon the courts
of the  United States  jurisdiction in  two  classes  of  causes,
depending in  the one class on the character of the cause, and in
the other class on the character of the parties. (5)


Cases in law and equity, etc.

91.  "Cases, in  law and equity, arising under this Constitution,
the laws  of the United States, and treaties made, or which shall
be made,  under their  authority" include  all subject-matters of
litigation, civil  or criminal,  whose determination requires the
application  or   construction  of  the  Constitution,  laws,  or
treaties of  the United States. A suit brought against a state by
one of its own citizens cannot be maintained under this provision
of the  Constitution. (6)  As  Strong,  J.,  said,  (7)  "A  case
consists of  the right of one party, as well as of the other, and
may truly be said to arise under the Constitution, or a law, or a
treaty of  the  United  States,  whenever  its  correct  decision
depends upon  the construction of either. Cases arising under the
laws of the United States are such as grow out of the legislation
of Congress, whenever they constitute the right, Or privilege, or
claim, or  protection, or  defense of  the party,  in whole or in
part, by  whom they  are asserted."  Fuller, C. J., has also said
forcibly (8)  that if  in the cause, "it appears that some title,
right, privilege,  or immunity on which the recovery depends will
be defeated  by one  construction of the Constitution or a law of
the United  States, or  sustained by  the opposite  construction,
then the  case is  one arising  under the Constitution or laws of
the United States." (9)


Cases affecting ambassadors, etc.

92.  "Cases affecting  ambassadors, other  public ministers,  and
consuls" are  cases to which such officers are parties, or so far
privies, that  the  determination  thereof  will  conclude  their
rights. (10)


Admiralty.

93.  "Cases of  admiralty and  maritime jurisdiction"  comprehend
litigated cases  with regard  to acts done and rights created, or
contracts to be performed, upon the high seas or inland navigable
waters, or  with regard  to Contracts  for the  transportation of
passengers or  goods on  the high  seas or  on  navigable  waters
between different  states. The  courts of the United States have,
therefore, full  jurisdiction in  admiralty, and, as Bradley, J.,
said, "the  boundaries and  limits of  the admiralty and maritime
jurisdiction are  matters of  judicial cognizance,  and cannot be
affected or controlled by legislation, whether state or national.
(12) But  within these  boundaries and  limits the  law itself is
that which  has always  been received  as maritime  law  in  this
country, with  such amendments  and modifications as Congress may
from time to time have adopted. "

     The judicial  power,  being  defined  by  the  Constitution,
cannot be extended by legislation under the guise of a regulation
of commerce, for the legislative regulation of any subject-matter
of jurisdiction  is in  its nature  essentially distinct from the
creation of  a tribunal  and the  vesting  in  that  tribunal  of
jurisdiction over  any particular  subject-matter. (13)  Congress
may legislate  as to maritime torts, (14) and maritime contracts.
Ships navigating  the high  seas, though  in the  prosecution  of
commerce between  two ports of the same state, are subject to the
federal power  of regulation,  and may therefore have the benefit
of the  limitation of  liability under the statutes of the United
States, (15) and the limited liability statutes now extend to all
vessels used  in navigation  of inland  waters. (16) While states
cannot create  maritime liens, nor confer jurisdiction upon their
courts for  the enforcement  of such  liens, (17)  nor  authorize
their courts  to entertain  suits for  damages for  the breach of
contracts for transportation of passengers on the high seas, (18)
nor proceedings  in rem  in collision  cases on navigable waters,
(19) yet, as the general maritime law does not recognize liens in
favour of material men for supplies furnished to vessels in their
home ports,  or for  materials  sold  for  ships  in  process  of
construction, the states may by statute authorize liens therefor,
which may  be enforced  by proceedings  in rem  in the  admiralty
courts of  the United States. (20) On the same principle, as both
at common  law and in admiralty the right of action for a tort is
personal and  dies with  the person  injured, and  no  action  is
maintainable therefor,  (21) the  right of  action in  such cases
when conferred by a state statute is enforceable in a state court
in a  case of death caused by collision in navigable waters which
are within  the  jurisdiction  of  the  state,  and  it  is  also
enforceable  when  the  navigable  waters  are  also  within  the
admiralty jurisdiction  of the  United State(22) in the courts of
the United States on the admiralty side, (23) and also on the law
side. (24) In England navigable waters are, in law, only those in
which the  tide  ebbs  and  flows;  and,  in  that  country,  the
admiralty jurisdiction  is further  restricted by the requirement
that the  locus in  quo, though  within the  ebb and  flow of the
tide, should  not be  infra corpus  comitatus nor  at  sea  infra
fauces terrte.  In certain  of the  earlier cases in this country
the English  test of  navigability in  a legal sense was applied,
but, as  the reason  of the rule failed here, and as its adoption
would have  taken out of the jurisdiction of admiralty the inland
waters and  many rivers  which are  in fact  navigable but  where
there is  no ebb  or flow  of the  tide, the  9th section  of the
Judiciary Act  of 1789  constituted navigability in fact the test
of navigability  in law,  and the  later cases have followed that
statutory rule. (25)


Controversies to which the United States shall be a party.

94.  The phrase  "controversies to  which the United States shall
be a party" requires no elucidation further than to note that the
United States,  as a  sovereignty, cannot be sued without its own
consent(26) and the constitutional provision does not impose upon
Congress any  duty to  constitute tribunals to take cognizance of
claims against the United States. Under this provision the United
States may bring suit against a state in the Supreme Court of the
United States,  but, by  reason of the state being a sovereignty,
interest upon the principal found to be due by the state will not
be awarded,  unless its consent to pay interest has been given by
its legislative, or executive, act. (27)


Controversies between citizens of different states.

95.  The phrase,  controversies "between  citizens  of  different
states, "vests  in the  courts of  the United States jurisdiction
over  all  proceedings  in  personam  between  such  parties.  As
Marshall, C.  J., said  in Cohens  v. Virginia, (28) "If these be
the parties,  it is  entirely unimportant what may be the subject
of controversy.  Be  it  what  it  may,  these  parties  "have  a
constitutional right  to come  into the courts of the Union;" and
as Field,  J., said in Gaines v. Fuentes, (29) "It rests entirely
with Congress to determine at what time the power may be invoked,
and upon what conditions." (30)

     A citizen  of a  territory, or  of the District of Columbia,
cannot sue  under this  clause, (31)  nor can  a state. (32) That
jurisdiction which  is dependent  on the character of the parties
does not  include proceedings  in rem,  or quasi  in rem, such as
questions of probate, (33) or actions for divorce. (34)


Controversies between two or more states, etc.

96.  The phrases  "controversies between  two or  more states ...
between citizens of the same state claiming lands under grants of
different states"  seem to  be unambiguous.  The  case  of  suits
between states  have been  mainly controversies as to conflicting
boundaries, (35)  and in  these cases there is no doubt as to the
jurisdiction. In  1790 it  was assumed(36)  that the  courts  had
jurisdiction of  a bill  filed by one state against another state
and grantees  of that  other state  to enjoin  ejectment suits by
those grantees  with regard  to land, political jurisdiction over
which was  claimed by  both states,  but judgment  was entered in
favour of  the defendant  state on  the ground that the plaintiff
state had  no property  interest  in  the  determination  of  the
ejectment suits. It has since been held that a state cannot, upon
an allegation  of a  violation of  an interstate  compact, enjoin
another state  and officers  of the  United States from diverting
the water  of a  navigable river as a result of an improvement of
navigation under congressional authority; (37) nor can a state in
a suit  against  a  municipality  of  another  state,  enjoin  an
improvement of  navigation because of an apprehended diversion of
trade  from   one  of   its  municipalities   to  the   defendant
municipality; (38)  nor can a state having assumed the collection
of a  debt due to one of its citizens by another state sue in its
own name  that other  state; (39)  nor can  a state  in an action
against a  corporation organized  under the laws of another state
invoke the  exercise of  the original jurisdiction of the Supreme
Court to  compel the  payment of a penalty for a violation of the
law of  the plaintiff  state; (40)  nor enjoin the enforcement of
the laws  of another state upon an allegation that those laws, if
executed, will  build up  the commerce of cities of the defendant
state to  the injury of the commerce of the plaintiff state. (41)
On the  other hand,  a state may invoke the original jurisdiction
of the  court by  a bill  against another  state and  a  sanitary
agency thereof  to enjoin  the discharge  of sewage  into a river
flowing through  the plaintiff state, (41) the ground of decision
being that  the relief  prayed is  the abatement  of  a  nuisance
injurious to the health of citizens of the plaintiff state, which
can properly  sue as  parens patrice. So also a bill may be filed
by a  state on  behalf of her citizens, as well as in vindication
of her  rights as  an individual owner, to restrain another state
'from depriving  it of  the waters  of a river accustomed to flow
through and  across its territory, and the consequent destruction
of the  property of herself and her citizens, and injury to their
health and  comfort. (43)  The original jurisdiction extends to a
suit by  a state  as the donee of certain bonds issued by another
state, and  secured by  a mortgage of railroad stock belonging to
the latter state, to compel payment of the bonds and a subjection
of the  mortgaged property  to the satisfaction of the debt. (44)
And that  jurisdiction also  extends to  an  action  by  a  state
against an  officer of the United States, where the United States
is the real party in interest adverse to the state. (45)

     It has, however, been held that as the United States "has no
power to  impose on  a state officer, as such, any duty whatever,
and compel  him to perform it," a state cannot, by a suit against
the governor of another state, compel the performance of a "duty"
by an  officer of  that other  state,  for  "there  is  no  power
delegated to  the general government, either through the judicial
department", or  any other  department, to use any coercive means
to compel  him. (46)  An Indian  tribe within  the United States,
being a  "domestic dependent  nation," and  not a  state,  cannot
bring suit against a state under this clause of the Constitution.
(47)


Controversies between a state and citizens of another state, etc.

97.  The  clauses   of  the   constitutional  provision,   giving
jurisdiction to the courts of the United States in "controversies
... between a state and citizens of another state ... and between
a state or the citizens thereof, and foreign states, citizens, or
subjects,"  were,   at  an  early  day  in  the  history  of  the
government, the subject of much controversy. There has never been
much question  as to  the jurisdiction in causes in which a state
was the  plaintiff; (48) in such cases it has been denied only in
an action  to recover on a judgment for a penalty for a violation
of municipal  law(49) and in actions in which it was necessary to
join citizens  of the  plaintiff state as parties defendant; (50)
but the  jurisdiction was earnestly contested in cases in which a
state was defendant and citizens of other states were plaintiffs.
In 1792  the Supreme  Court of  the United States, in Chisholm v.
Georgia, (51) the cause being an action of assumpsit brought by a
citizen of South Carolina against the state of Georgia, sustained
the original  jurisdiction of  the Supreme  Court in  suits by  a
citizen of  one state  against another  state. In  consequence of
that judgment,  and for  the purpose of relieving the states from
liability to  suits to  enforce the payment of their obligations,
(52) the  XI Article  of the  Amendments to  the Constitution was
adopted. (53)


Federal jurisdiction.

98.  The jurisdiction  of the  courts of the United States is, in
its character,  either civil  or criminal,  and, in its exercise,
either exclusive  of, or concurrent with, the jurisdiction of the
courts of the states, and either original or appellate, first, by
appeal from a federal court of original jurisdiction to a federal
court of  intermediate, and  then to  the federal court of final,
appeal; or  second, by  appeal directly from the federal court of
original jurisdiction  to the  federal court  of final appeal; or
third, by appeal from a state court of last resort to the federal
court of  final appeal.  The courts  of the  United  States  also
exercise a  supervisory jurisdiction,  over  the  courts  of  the
states by  the removal therefrom, before trial, of certain causes
of  federal   cognizance,  (54)   and   a   general   supervisory
jurisdiction which  may be  invoked by  a petition  for a writ of
habeas corpus, whenever a person is in custody for an act done or
omitted in  pursuance of  a law  of the  United States,  or of an
order, process, or decree of a court or a judge thereof, or is in
custody in  violation of  the Constitution, or a law or treaty of
the United States. (55)

     As the  courts of  the United  States are  courts of limited
jurisdiction, the  record must  show affirmatively that the cause
is necessarily  of federal  cognizance, by  reason of  either the
subject-matter of  litigation,  (56)  or  the  character  of  the
parties,  (57)  and  this  must  be  formally  averred,  (58)  or
distinctly appear  on  the  face  of  the  record.  (59)  If  the
jurisdictional fact does appear on the face of the record, it can
only be  traversed by a plea to the jurisdiction. (60) There is a
conclusive presumption  of law  that a  corporation and  all  its
members are  citizens of  the state  creating the corporation(61)
and that  a national  bank is a citizen of the state within which
it is located. (62)

     Original process of the circuit and district courts does not
run outside of the district in which the suit is brought. (63)

     Where the  jurisdiction depends on diverse citizenship, suit
can be  brought only  in the  district of the residence of either
the plaintiff or defendant. (64)

     An assignee of a chose in action cannot sue on the ground of
diverse citizenship  where his  assignor could  not sue,  save in
actions upon  foreign bills  of exchange  and in  actions against
corporations. (65)

     In causes  of criminal cognizance, the original jurisdiction
of the  federal courts  is limited  in two respects. In the first
place, those  courts cannot  take cognizance of an act alleged to
be criminal, which has not been declared to be(66) such by an act
of Congress.  In the  second place,  Congress cannot,  under  the
Constitution, declare  an act  to be  criminal, unless, as Field,
J., said(67)  that act  has "some  relation to the execution of a
power of  Congress, or  to some matter within the jurisdiction of
the United  States."   Thus, a murder committed on board a vessel
of the  navy of  the United  States while  at anchor in navigable
waters within  the jurisdiction of a state is not cognizable in a
court of  the United  States; (68)  Congress  cannot  make  it  a
misdemeanor to  sell within the territory of a state illuminating
oil inflammable  at less than a specified temperature; (69) while
Congress  may  legislate  with  regard  to  bankruptcy,  and  may
prohibit and  declare to  be punishable the commission of a fraud
in  contemplation   of  bankruptcy,   it  cannot  constitute  the
obtaining of goods on false pretences with intent to defraud, but
not in  contemplation of bankruptcy, to be an offense against the
United States;  (70) and  Congress cannot  by statute provide for
the punishment of state election officers for wrongfully refusing
to receive  the vote  of a  qualified voter  at an election, when
that refusal is not based upon a discrimination against the voter
on  account   of  his  race,  color,  or  previous  condition  of
servitude. (71)


Exclusive and concurrent jurisdiction.

99.  It is  a principle of constitutional construction, as stated
by Marshall,  C. J.,  in  Sturges  v.  Crowninshield,  (72)  that
"whenever the  terms in  which a power is granted to Congress, or
the nature  of the  power, require  that it  should be  exercised
exclusively by  Congress, the subject is as completely taken from
the state legislatures as if they had been expressly forbidden to
act on  it." (73)  In conformity with this principle, it has been
decided in  Martin v.  Hunter's Lessee,  (74) and  in  The  Moses
Taylor, (75)  that Congress has power to divest the courts of the
states  of   jurisdiction  over  all  subject-matters  which  are
included within the constitutional grant of judicial power to the
United States,  or whose  determination by  the judicial power of
the United States is necessary to the exercise by Congress of its
constitutional power  of  legislation,  and  where  Congress  has
expressed its  will that,  as to any particular subject-matter of
federal cognizance  the jurisdiction  of the courts of the United
States shall  be exclusive,  the courts of the states cannot take
cognizance of such subject-matter. (76)

     Of course,  the Constitution,  having granted the power, and
not having  commanded Congress to exercise it, it is for Congress
to determine  when and  to  what  extent  it  will  exercise  it.
Therefore, the  jurisdiction of  the courts  of the United States
within the limits imposed by the Constitution is either exclusive
of, or  concurrent with,  that of  the courts  of the  states, as
Congress may,  from time  to time, determine. (77) As the law now
is, the  jurisdiction of  the courts  of  the  United  States  is
exclusive of  that of  the states in cases of crimes and offenses
cognizable under the authority of the United States; in suits for
penalties and  forfeitures incurred  under the laws of the United
States; in  civil causes  of admiralty and maritime jurisdiction,
saving to  suitors in all cases the right of a common-law remedy,
where the  common law  is competent to give it; in seizures under
the laws  of the  United States  on land  or on waters not within
admiralty and  maritime jurisdiction;  in cases arising under the
patent right  or copyright  laws of  the United  States;  in  all
matters and  proceedings in bankruptcy; in all controversies of a
civil nature,  where a  state is  a party, except between a state
and its  Citizens, between  a state and citizens of other states,
or aliens;  and in  all suits or proceedings against ambassadors,
or other  public  ministers,  or  their  domestics,  or  domestic
servants, or against consuls or vice-consuls. (78)


The courts of the United States.

100. The courts of the United States are the district courts, the
circuit courts,  the circuit  courts of  appeal, and  the Supreme
Court. The  jurisdiction of  the district  and circuit  courts is
exclusively original;  that  of  the  circuit  courts  of  appeal
exclusively  appellate;  and  that  of  the  Supreme  Court  both
original  and  appellate.  The  United  States  is  divided  into
judicial districts,  in  some  cases  one  state  constituting  a
judicial district,  and, in other cases, a state including within
its territory  two or  more districts.  There are also a court of
claims, a  court of  private land  claims, and in certain foreign
countries, consular courts, and in the territories and in Alaska,
Hawaii, Puerto  Rico), and  the Philippines,  territorial courts,
whose jurisdiction  and procedure  are foreign  to the subject of
this book.  There is  for each  district court  one judge, who is
required by statute to reside within his district.

     There are  nine circuit  courts,  the  United  States  being
divided into  nine circuits, each circuit including the districts
in three,  or more,  states. For  each circuit  there are two, or
more, circuit judges, and in addition thereto, the justice of the
Supreme Court  allotted to  that circuit. The circuit courts have
no longer any appellate jurisdiction. (79)

     In each  circuit  there  is  a  circuit  court  of  appeals,
constituted at  any one  time of  three judges, of whom two are a
quorum." If  the judges  therein are  the Supreme  Court  justice
assigned to  the circuit,  the circuit  judges, and  the  several
district judges  thereof. The  Supreme Court  now consists  of  a
chief justice  and eight  associate justices,  any  six  of  whom
constitute a  quorum; but Congress may increase, or decrease, the
number of justices, or change the quorum. (80)


Original jurisdiction.

101. The original jurisdiction of the courts of the United States
is exercised  in some  cases by  the Supreme Court, and, in other
cases, by  the inferior  courts. As  Johnson, J.,  said in United
States  v.   Hudson,  (81)  "Only  the  Supreme  Court  possesses
jurisdiction derived  immediately from  the Constitution,  and of
which the  legislative power  cannot deprive it. All other courts
created by  the general  government possess  no jurisdiction  but
what is  given them  by the  power that  creates them, and can be
vested with  none  but  what  the  power  ceded  to  the  general
government will authorize them to confer."

     The original jurisdiction of the Supreme Court is limited by
the Constitution  to "cases  affecting ambassadors,  other public
ministers, and  consuls, and  those in  which a  state  shall  be
party.  "Congress  cannot  confer  upon  the  Supreme  Court  any
original jurisdiction other than that so conferred by the express
terms of  the Constitution.  (82) Whether  or  not  Congress  can
authorize  other   courts  of   the  United  States  to  exercise
concurrent  original   jurisdiction  in   the   cases,   original
jurisdiction over  which is  vested by  the Constitution  in  the
Supreme Court,  was for  a long time an unsettled question. In U.
S. v.  Ortega, (83) the question was raised, but not decided, but
in Bors  v. Preston,  (84) it  was determined,  that the Congress
might confer  a concurrent original jurisdiction upon the circuit
courts of the United States in actions against consuls of foreign
states.  (85)   The  Supreme   Court  may  also  issue  writs  of
prohibition  to   the  admiralty   courts,  (86)   and  writs  of
mandamus(87) "in  cases warranted by the principles and usages of
law." (88)

     The original  jurisdiction of  the subordinate courts of the
United States, excepting the circuit courts of appeal, which have
no original jurisdiction, (89) is, in the main, as follows:

     On  the   civil  side,  the  circuit  courts  have  original
jurisdiction, concurrent  with the  courts of  the states, of all
suits at  common law,  or in equity, where the matter in dispute,
exclusive of  interest and  costs, exceeds  two thousand dollars,
first, where the controversy arises under the Constitution, laws,
or treaties  of the  United States; second, where the controversy
is between citizens of different states, or between citizens of @
state and foreign states, citizens, or subjects; third, where the
controversy is  between citizens  of the same state claiming land
under grants  of different  states; and, fourth, where the United
States  are   plaintiffs.  (90)  The  circuit  courts  also  have
jurisdiction, without  pecuniary limitation,  of all  suits under
internal revenue and postal laws; (91) of all suits for penalties
under laws  regulating the  cartage  of  passengers  in  merchant
vessels(92) of  patent,  (93)  copyright(94)  and  trade-mark(95)
cases; of  winding-up suits  against national  banks; (96) and of
suits to  recover damages  for injuries to the person or property
under revenue laws. (97)

     The circuit courts also have original jurisdiction under the
Anti-trust Act  of 1890,  (98) and  under the Interstate Commerce
Act(99) and in customs cases. (100)

     The  circuit   courts  also   have  original   jurisdiction,
concurrent with  the court  of claims,  of all claims against the
United States,  when the  matter in  dispute, exclusive of costs,
exceeds one  thousand dollars  and does  not exceed  ten thousand
dollars. (101)

     The  circuit   courts  have  also,  on  the  criminal  side,
exclusive cognizance  of all crimes and offenses made such by the
statutes of the United States, except where otherwise provided by
law, and  concurrent jurisdiction  with the  district  courts  of
crimes and offenses cognizable therein. (102)

     The district courts have original jurisdiction of all crimes
and offenses  made such by the statutes of the United States when
committed within  their respective  districts, or  upon the  high
seas, and  the punishment  of which  is not  capital; and  on the
civil side,  of all  suits for  penalties and forfeitures; of all
suits at  common law  brought by  the United  States, or  by  any
officer thereof, authorized by law to sue; of all suits in equity
to enforce  liens, etc.,  under the internal revenue statutes; of
suits for  the recovery  of forfeitures  or damages  due  to  the
United States;  of all causes of action under the postal laws; of
admiralty causes, saving to suitors their common-law remedies, if
any; and  of all  litigation in  bankruptcy. (103)  The  district
courts have also concurrent jurisdiction with the court of claims
in claims  against the  United States  when the matter in dispute
does not  exceed one  thousand dollars. (104) The court of claims
has original  jurisdiction of  claims against  the United States,
and of set-offs against the claims sued on. (105)


Appellate and supervisory jurisdiction.

102. As the  Constitution has  declared that  in all cases, other
than those  in which  original jurisdiction has been by its terms
vested in  the Supreme  Court, that  court "shall  have appellate
jurisdiction, both  as to law and fact, with such exceptions, and
under such  regulations as the Congress shall make," Congress may
define and limit the appellate jurisdiction of the Supreme Court,
(106) but  the Supreme  Court cannot  be required  to review  the
actions of  officers of  the United  States under  legislative or
executive references.  (107) In  the exercise  of  its  appellate
jurisdiction the  Supreme Court  of the  United States may review
the final  judgments and  decrees of  the inferior  courts of the
United States  under the  restrictions  stated  in  the  acts  of
Congress, (108)  and it may review the final judgments or decrees
of the courts of last resort of the states in causes either civil
or criminal,  "where is  drawn in  question  the  validity  of  a
statute of,  or an  authority exercised  under any  state, on the
ground of their being repugnant to the Constitution, treaties, or
laws of the United States, and the decision is in favour of their
validity; or  where any  title, right,  privilege, or immunity is
claimed under  the Constitution,  or any treaty or statute of, or
commission held  or authority exercised under, the United States,
and the  decision is  against the  title,  right,  privilege,  or
immunity specially  set up or claimed by either party, under such
Constitution, treaty,  statute, commission,  or authority"  (109)
But even  though the  state court  of last  resort passes  upon a
question federal  in its nature, if the decision also involves an
independent ground  sufficiently broad  to sustain  the judgment,
that decision  cannot be  questioned in  the Supreme Court. (110)
The courts  of the  United States  also  exercise  a  supervisory
jurisdiction over  the courts  of the  states by a removal from a
court of,  a state to a federal court of a cause, either civil or
criminal, depending  but not yet finally adjudicated in the state
court, (111)  or by the issue of a writ of habeas corpus in cases
of a  restraint of personal liberty under process of a court of a
state, void  by reason  of the offense with which the prisoner is
charged being  a matter of federal, and not of state, cognizance,
or by  reason of  the restraint of a prisoner in violation of the
Constitution, or  of any  treaty, or  law of  the United  States.
(112) The  right of  appeal, or  of removal,  or to  the writ  of
habeas corpus,  is in any case dependent, not only on the federal
character of  the question involved, or the right of the party to
sue in  the federal  court, but  also on  the terms of the act of
Congress authorizing  the exercise  by the  court of  the  United
States of  its supervisory  jurisdiction in  the particular case.
The Constitution  does not  expressly authorize  the  removal  of
causes of federal cognizance from the courts of the states to the
courts of  the United  States before  final judgment, nor does it
expressly authorize  the review  of such  causes in  the  Supreme
Court of the United States after the entry of final judgment in a
court of  a state, nor does it expressly authorize the release by
a court  of the United States after a hearing on habeas corpus of
a prisoner  indicted in  a state court for doing that which under
the Constitution  and laws of the United States he may rightfully
do, but  the right of removal, the right of appeal, and the right
to a  discharge after hearing on habeas corpus, alike result from
the  constitutional   declaration  of   the  supremacy   of   the
Constitution and laws of the United States.

     The circuit courts have no appellate jurisdiction. (113)

     The appellate  jurisdiction of each circuit court of appeals
is exercised  by appeal or by writ of error from the district and
circuit courts  within its  circuit, and  from territorial courts
attached by statute to its circuit, in all cases other than those
in which  the Supreme  Court has  direct appellate  jurisdiction,
(114) and  the judgments  or decrees  of each  circuit  court  of
appeal are  final in  all cases  in  which  the  jurisdiction  is
dependent  exclusively  upon  diverse  citizenship;  and  in  all
patent, revenue,  and admiralty  causes, and  in all prosecutions
not directly  appealable from the district, or circuit, courts to
the Supreme  Court; excepting  that upon every subject within its
appellate jurisdiction, a circuit court of appeals may certify to
the Supreme  Court of  the United  States  any  question  of  law
concerning  which  the  circuit  court  of  appeals  desires  the
instruction of  the Supreme  Court for  a  proper  decision;  and
excepting also that the Supreme Court may, in any case, require a
circuit court of appeals to certify any case for final review and
determination. (115)

     The appeals  or writs of error may be taken from the circuit
court of  appeals to  the Supreme Court in all cases in which the
judgment or  decree of  the circuit  court of appeals is not made
final by  statute; and  appeals or  writs of  error may  be taken
directly from  the district  and circuit  courts to  the  Supreme
Court from  final sentences and decrees in prize causes; in cases
of conviction  of a  capital or  otherwise infamous crime; in any
case  involving   the  construction   or   application   of   the
Constitution of  the United States; in any case in which is drawn
in question  the constitutionality  of  any  law  of  the  United
States, or  the validity or construction of any treaty made under
its  authority; in any case in which the constitution or law of a
state is  claimed to  be in  contravention of the Constitution of
the United  States; and  on any case in which the jurisdiction of
the court  is in  issue,  but  in  such  cases  the  question  of
jurisdiction alone  shall be  certified by  the court  below  for
decision. (116)

     The appellate jurisdiction of the Supreme Court also extends
to final judgments of the court of claims. (117)

     The  supervisory  jurisdiction  of  the  federal  courts  is
exercised by  removal, upon  petition of,  and bond filed by, the
defendant before  filing plea  or answer, of a pending civil case
from a  state court  to the circuit court of the United States of
the proper district where the case is one of a class of which the
circuit court  has jurisdiction under the statutes, and where the
suit arises  under the  Constitution, laws,  or treaties  of  the
United States,  or where  the defendant  is a non-resident of the
state, or  where the  controversy is  wholly between  citizens of
different states, and it can be fully determined as between them,
or where it shall be made to appear before the circuit court that
the defendant,  being a  citizen of  a state  other than  that in
which the  action is  pending, cannot,  by reason  of apprehended
prejudice or  local influence, obtain justice in the state court.
(118) The  circuit court  may remand to the state court any cause
not properly removed. (119)

     It is  foreign to  the purpose  of this  book to  discuss in
detail the practice in the different courts.


The necessity of a judicial "case."

103. Whatever be the form in which the jurisdiction of the courts
of the  United States is invoked, it is essential to the exercise
of the  jurisdiction that  there should  be a  "case" before  the
court, that  is,  a  subject-matter  for  judicial  determination
contested by  competent parties. (20) The courts, therefore, will
not  give   judgment   upon   "moot"   questions,   or   abstract
propositions. (21)  If it  appear from  the record,  or be proven
aliunde,  that   a  judgment  brought  up  for  review  bas  been
satisfied,  the  appeal  must  be  dismissed.  (22)  It  is  also
essential  that   the  question   for  decision  be  judicial  in
character, for the courts cannot decide political questions, such
as whether  or not  the people of a state have altered their form
of government  by abolishing an old government and establishing a
new one  in its  place, (23)  or whether  or not,  in  a  foreign
country, a  new government has been established, (24) nor whether
or not  the United  States has sovereignty over a territory, (25)
nor can  the courts  by injunction  restrain  a  state  from  the
forcible exercise  of legislative  power  over  an  Indian  tribe
asserting their  independence,  the  right  to  which  the  state
denies,"  (126)  nor  enjoin  the  executive  department  of  the
government of the United States from carrying into effect acts of
Congress alleged to be unconstitutional. (127) Such questions can
only be  decided by the political power, "and when that power has
decided, the  courts are bound to take notice of its decision and
to follow  it." (128)  Upon this  principle, the  recognition  by
Congress and  the executive  of the state governments of the then
lately rebellious  states as  reconstructed after the suppression
of the  rebellion was  held  to  be  binding  upon  the  judicial
department of the government. (129) But the courts may compel the
performance of  a ministerial  and non-discretionary  duty by  an
executive officer, as, for instance, the delivery of a signed and
sealed  commission   to  an   officer  who  has  been  appointed,
nominated, and  confirmed (130)  or the crediting to a government
creditor of  a sum of money found by the Treasury to be due under
the express terms of an act of Congress. (131)


The federal judiciary.

104. The courts  of the  United States  have contributed  to  the
history of the country a chapter which every American citizen can
read with pride. The dignity of the judicial office, its security
of tenure, and its consequent independence of political dictation
and control,  have so  far compensated  for the inadequacy of the
salaries that  lawyers  who  might  reasonably  look  forward  to
lucrative practice  have, in  many  instances,  been  induced  to
accept seats  upon the  federal bench. The judges have been, with
scarcely an  exception,  learned  and  able  lawyers,  and  their
personal characters  have given  weight to  their judgments. They
have performed  their judicial duties with courage, faithfulness,
and  intelligence.  They  have,  in  general,  administered  with
firmness, and  with tact,  the extensive  jurisdiction  of  their
courts. All that is to be said of the federal judges, in general,
can be  said, with  even greater  force, of  the successive Chief
Justices and  Justices of the Supreme Court of the United States.
Sovereign states,  vast aggregations  of capital, and the mass of
the people  have respectfully  bowed to  the  judgments  of  that
tribunal. No  fair-minded man  has ever  doubted, however much he
might be  disposed to  criticize the  result  in  any  particular
cause, that  the court  in arriving  at its conclusions had given
full consideration  to every  fact and  every  argument  and  had
earnestly endeavored  to do  justice. The work of the court which
has attracted  most attention  has been  in its interpretation of
the Constitution.  In the  performance of that duty the court has
had to apply an instrument made at the birth of the government to
the changing  conditions of  the nation's  development. This  has
been done in all cases with judicial deliberation, and, in almost
all cases, with the wisdom of statesmen.

     The court,  in all but two instances, has wisely held itself
aloof from  political controversies  whose consideration  it  was
possible to  avoid. In  1803, (132)  judges who  were Federalists
united in  an opinion  which, if it could have been enforced by a
judgment, would  have deprived  the  Democratic  party  of  those
spoils of  office which  that party regarded as the fruits of its
triumph over the Federalist party. In 1857, (133) judges who were
Democrats thought  they had established the indefeasible right of
slavery to occupy the territories of the United States. The cases
were alike  in that  in each instance the court, having proved to
its satisfaction  that it  had no  jurisdiction over the subject-
matter of  decision, proceeded  to a  judicial determination upon
the merits  of the  controversy; and in each instance the country
revolted against  the attempted  judicial usurpation of political
functions.

     The greatest  service which  the Supreme Court of the United
States has rendered to the country is that throughout our history
it has  been an  object lesson  of the  supremacy of  law. It  ss
impossible to  overstate the  vital importance to the republic of
the teaching  of this lesson, a lesson so hard for a democracy to
learn, and so essential to the maintenance of free institutions.


The federal supremacy.

105. The law  administered in  the courts of the United States is
found in  the Constitution, in acts of Congress, in treaties made
by the United States, and in the judgments of the Supreme Court.

     Section 2  of Article  VI of the Constitution declares, that
"this Constitution, and the laws of the United States which shall
be made  in pursuance  thereof, and  all treaties  made, or which
shall be made, under the authority of the United States, shall be
the supreme  law of the land; and the judges in every state shall
be bound  thereby, anything  in the  constitution or  laws of any
state to the contrary notwithstanding."

     The Constitution is the Constitution as originally ratified,
and  as   subsequently  amended  in  the  manner  and  under  the
restrictions contained  in the  Constitution, and as construed by
the judicial  department of  the government so far as regards all
that  irnav   properly  become   a  subject-matter   of  judicial
determination. The  validity of  an act  of Congress is dependent
upon its conformity to the Constitution. (134) The validity of an
act of  a state  legislature is  dependent upon its conformity to
the  Constitution   of  the  United  States  and  also  upon  its
conformity to the constitution of its state.

     But an  act of  legislation will not, on slight implication,
or vague  conjecture, be  judicially determined to be in conflict
with the Constitution, for the presumption is always in favour of
the  constitutionality  of  a  law.  (135)  Statutes,  which  are
constitutional in  part only,  will be upheld by the court so far
as they  are not in conflict with the Constitution, provided that
their  constitutional,   and  their  unconstitutional,  parts  be
severable; (136)  but when  the unconstitutional  parts of such a
statute are  so connected  with its  general scope,  that, should
they be  stricken out,  effect cannot be given to the legislative
intent, the  other provisions of the statute must fall with them.
(137)


Constitutional and statutory construction.

106. The colonial  lawyers were  familiar  with  the  idea  of  a
judicial determination of the invalidity of an act of legislation
by reason  of its  contravention of  an organic law, for they not
infrequently had  their attention  called to  deliverances by the
Privy  Council  in  England  holding  invalid  acts  of  colonial
legislatures for  the want of conformity to colonial charters, or
to English  statutes. It  is therefore  not surprising that there
are dicta  and judgments  of  colonial  courts  recognizing  this
principle. (138)

     Alexander Hamilton, (139) after saying that the independence
of the  courts is  essential in  a country where the Constitution
limits the  power of  the  legislatures  by  specific  exceptions
therefrom, adds  that such  "limitations ...  can be preserved in
practice in  no other  way than  through the  medium of courts of
justice whose duty it must be to declare all acts contrary to the
manifest tenor  of the  Constitution void  .... The  Constitution
ought to be preferred to the statute, the intention of the people
to the  intention of  their agents  .... The prior charter of the
superior ought  to be  preferred to  the subsequent  acts  of  an
inferior and  subordinate authority, and ... accordingly whenever
a particular  statute contravenes the Constitution it will be the
duty of  the judicial  tribunals to  adhere  to  the  latter  and
disregard the  former."  This  reasoning  has  been  adopted  and
uniformly followed by the court. (140)

     The most  important  function  of  the  courts  is  that  of
construing   the   Constitution,   and   that   construction   is
authoritatively and finally, so far as regards subject-matters of
judicial determination,  made by  the Supreme Court of the United
States. The  rules,  which  are  applied  by  the  court  in  the
construction of  the Constitution,  are few  and simple. (1). The
construction  is  neither  lax  nor  rigorous,  but  such  as  to
effectuate the  purpose of the instrument as "an establishment of
a frame  of government  and a  declaration of  that  government's
fundamental principles  intended to  endure for  ages and  to  be
adapted to  the various  crises of human affairs." (141) (2). The
antecedent history  of the  country and  the state  of the public
affairs at  the time  of the  adoption of  the  Constitution  are
considered in  order that  the old  law, the  mischief,  and  the
remedy  may   have  their   relative   weight.   (142)   (3).   A
contemporaneous legislative  exposition acquiesced  in for a long
term of  years fixes  the construction.  (143) (4). The words are
read in  their natural  sense (144) departing from and varying by
construction  the   natural  meaning  of  the  words  only  where
different clauses  of the  instrument bear  upon each  other  and
would conflict, unless the words were construed otherwise than by
their natural  and common  import. (145) (5). An exception from a
power which  is granted  in express terms marks the extent of the
power and  shows that  the power necessarily includes other cases
which come  within the  terms of  the grant  and which might have
been, but were not, specifically excepted. (146) (6). When a term
of the common law is used, its common-law meaning is adopted with
it. (147)  (7). The  Federalist is  not, of  course,  of  binding
authority upon  the Supreme  Court with  regard to  the  judicial
construction of the Constitution, but as Marshall, C. J., said in
Cohens v.  Virginia, (148)  the "opinion  of the  Federalist  has
always been  considered as  of great  authority. It is a complete
commentary on our Constitution, and is appealed to by all parties
in the  questions to  which that  instrument has given birth. Its
intrinsic merit  entitles it  to this high rank, and the part two
of its  authors performed in framing the Constitution put it very
much in  their power  to explain  the views  with  which  it  was
framed." (8).  The reported  proceedings of  the convention which
framed the  Constitution, and  of the  several state  conventions
which  ratified   it,  though   frequently  referred  to  in  the
discussions of  questions of constitutional construction, are not
of binding  authority. The  views expressed  in the  debates  are
merely  the   views  of  the  individual  speakers,  and  do  not
necessarily express  the view  of the  subject which  induced the
federal convention  to insert  the particular  provision  in  the
Constitution as  framed by  them, or  which led the convention of
any one  state to ratify the Constitution. (149) The votes of the
convention on  the details  of the Constitution are of no greater
importance,  for  an  affirmative  vote  approving  a  particular
section of  the Constitution,  throws no  light on the meaning of
the words  of the  section;  and  a  negative  vote  rejecting  a
proposed constitutional  provision may  with equal  propriety  be
regarded as  an expression  of opinion  to the  effect  that  the
proposed provision  is unnecessary because adequately supplied by
other provisions  of the  Constitution, or  as a refusal to adopt
the particular provision because in the opinion of the convention
such a provision ought not to be inserted in the Constitution. It
must be  remembered that the Constitution derives its whole force
and authority  from its  ratification by  the people,  (150)  and
whenever it  becomes necessary  to determine  the meaning  of any
clause in  the Constitution,  the real  question for decision is,
not what  did the  federal convention,  or  any  member  thereof,
understand that  clause to  mean when  that convention framed the
Constitution, nor  what did  the members  of any particular state
convention understand  that clause  to mean when their convention
ratified the  Constitution, but  what did that clause really mean
as ratified  by all the conventions, and that meaning can only be
determined  by  the  application  of  the  established  rules  of
judicial construction."

     The meaning of a statute is determined by the application of
rules of  construction, which  are substantially  the same as the
rules of  constitutional construction, and whose object is simply
to determine  the legislative  intent, which  is the  natural and
reasonable effect of the words used. (152)


Judgments of courts.

107. A judgment  of a court is an application of a rule of law to
the facts  of a particular case, and its value as an authority is
dependent upon the extent and finality of the jurisdiction of the
court and  upon an ascertainment of the facts as presented to the
mind of  the court and a deduction of the rule of law determining
the decision  on those  facts. (153)  The opinion of any court or
judge upon a question whose determination is not essential to the
decision upon  the facts  of the cause is only obiter dictum and,
although entitled to be received with great respect, it is not to
be regarded  as an  authoritative precedent.  The opinions of the
judges are,  therefore, of value only in so far as they ascertain
the facts  and deduce  the rule  whose  application  decides  the
cause.  It   would  be  well  if  dissenting  opinions  were  not
published, and  if the fact of any dissent were not recorded, for
any dissent  necessarily weakens  the force  of the judgment as a
precedent.


Treaties.

108. Treaties, when  duly ratified,  are of inferior authority to
the Constitution,  (154) but  they are  superior in  authority to
state legislation.  (155) Where  there is  a repugnancy between a
treaty and  an act  of Congress  that which is of later date will
prevail. (156)  Where a treaty declares the rights and privileges
which the  citizens or  subjects of a foreign nation may enjoy in
the United  States it, in general, operates by its own force, and
does not  require the  aid of  any congressional enactment. (157)
While, as  respects the rights and obligations of the contracting
governments, a  treaty is to be regarded as concluded and binding
from the date of its signature, (158) yet as respects the effects
of the  treaty on  the rights  of citizens  of the  United States
vested before  the ratification of the treaty but subsequently to
its signature,  the treaty  is not  to be considered as a part of
the supreme  law of  the land  until after its ratifications have
been exchanged,  for the  Senate may  in process  of ratification
amend the  treaty, (159)  and it  cannot be  known, until  it  be
ratified, what it may command or prohibit. (160) Treaties do not,
unless they  be  in  express  terms  retroactive,  affect  rights
vested, or liabilities incurred, before their ratification. (161)
The abrogation  of a treaty operates only on future transactions,
leaving unaffected  previously executed  transactions and  vested
property interests, but not personal and non-transferable rights.
(162)


The law administered in the federal courts.

109. In criminal  cases the  jurisdiction of  the courts  of  the
United States  is statutory and an indictment cannot be tried for
a common-law offense. They, therefore, administer on the criminal
side only that jurisdiction which is granted by the Constitution,
treaties, and statutes of the United States. (163)     In   civil
causes, where  the jurisdiction  of  the  court  depends  on  the
character of  the cause,  as raising  for decision  a question of
federal law,  the only  law that  can be  administered therein is
that of  the Constitution,  statutes, and  treaties of the United
States. But  in causes  where the  jurisdiction attaches  only by
reason of  the  diverse  citizenship  of  the  parties,  the  law
administered ought to be that of the state within whose territory
the court  of the  first instance  sits, excepting, of course, in
those causes  in which  the lex  loci contractus differs from the
lex fori,  and the former law is applicable. The only reason that
the framers  of the  Constitution could  have had for opening the
courts of the United States to one who litigates only in right of
diverse citizenship  is the  possibility  of  bias  or  prejudice
against him  in the state court. This reason for the jurisdiction
was recognized  by the  Supreme Court in an early case, (164) but
later cases  adopt a  broader view, which must now be regarded as
the established  judicial theory of the constitutional intent. If
a citizen of one state has a cause of action against a citizen of
another state,  and he  brings his  action in  the courts of that
other state  his right  is to have an impartial trial and to have
his cause  decided by  the application  of the law of that state.
That law  can only  be found  in the constitution and statutes of
the state, as construed by the state court of last resort, and in
the principles of the common, or civil, law.. as the case may be,
as recognized  by the  judicial decisions  of the  state court of
last resort.  When that  litigant goes into a court of the United
States to  enforce that  cause of  action, the  change  of  forum
should not  change the  law which  must be  applied to  and  must
decide the  cause. Each state is entitled as of right jus dare et
jus dicere,  to make  the law  and, to  declare the law as to all
subject-matter of  legislative and  judicial determination, which
have not been delegated by the Constitution to the United States;
and any subject-matter of which a court of the United States can,
only take  jurisdiction by  reason of  the diverse citizenship of
the parties  is necessarily  a subject-matter  as  to  which  the
United States  cannot legislate,  and over  which it ought not to
exercise judicial jurisdiction otherwise than by applying the law
of the  state. It  is true that the federal tribunals exercise as
to  such   subject  matters   an  independent  though  concurrent
jurisdiction, but  it does  not follow  that the  federal  judges
should be  at liberty  to ascertain  and declare  the law  of the
state according  to their  own judgment, not of what that law is,
but of what that law ought to be. On the contrary, the law of the
state like  the law  of a  foreign country  should be  proven and
found as  a fact by the federal judges. The Judiciary Act of 1789
(165) of  the several  states,  except  where  the  Constitution,
treaties, or  statutes  of  the  United  States  shall  otherwise
require or  provide, shall  be regarded  as rules  of decision in
trials at  Common law in the courts of the United States in cases
where they  apply." This statutory requirement ought to have been
construed to  require the  application of  state rules  of law as
evidenced by  state constitutions,  statutes,  and  judgments  of
state courts  of last resort, in all eases where the jurisdiction
attaches solely  by reason  of diverse citizenship, but the court
has held  otherwise, and it is settled law, that while the courts
of the  United States will accept and follow a fixed construction
by the  judicial department  of a  state of  its constitution and
statutes, (166)  yet, when  the decisions of the state's court of
last resort  are not  consistent the  United States courts do not
feel bound  to follow  the last  decision;  (167)  nor  will  the
federal courts  follow a  state decision rendered after the cause
of action  has accrued. Upon questions of general commercial law,
(168) and  questions of  real property law depending upon general
principles of  law, (169)  and in  actions upon contracts or upon
questions of  "general jurisprudence  of  national  or  universal
application" (170)   the  court will determine the law for itself
and it  will not follow state decisions which, in the judgment of
the court,  do not  lay down  the law  as the federal courts hold
that it  ought to be laid down. The fundamental objection to this
rule  of  the  court  is  that,  as  Congress  cannot  under  the
Constitution legislate  on any  other  than  a  federal  subject-
matter, the enforcement by the federal court, in controversies as
to  contracts,  or  commercial  obligations,  or  title  to  real
property, of a law different from the state law, as formulated in
its acts  of legislation  and in  the judgments of its courts, is
nothing else  than the establishment and enforcement of a body of
judge-made law  with no  statutory basis, and without possibility
of legislative amendment. (171)

     In causes  of civil  cognizance, where the federal court has
acquired original jurisdiction under the Constitution and laws of
the United  States, it may protect rights and administer remedies
not only under the Constitution, laws, and treaties of the United
States, but  also under  the common  law, as adopted by the state
within which  the court  sits, (172)  the principles of equitable
jurisprudence, "as distinguished and defined in that country from
whence we derive our knowledge of those principles, (173) and the
statutes of the state. (174)

     In admiralty  the maritime  law is  administered, "with such
amendments and  modifications as  Congress may  from time to time
have adopted. (175)


Courts martial and impeachments.

110. The judicial  jurisdiction of  the United  States, except as
regards offenses  of soldiers and sailors against the Articles of
War, and  crimes punishable by impeachment, can only be exercised
by courts  duly constituted  under the Constitution and the laws.
Congress, therefore,  cannot invest  courts martial  or  military
commissions with  jurisdiction to  try, convict,  or sentence for
any offense,  a citizen  not being  a  resident  of  a  state  in
rebellion, nor  a prisoner  of war,  nor in the military or naval
service of  the United States. (176) That which may be termed the
extra-ordinary judicial  power of  the United States is exercised
only by  courts martial  and in the trial of impeachments. Courts
martial  may   exercise  judicial  jurisdiction  with  regard  to
offenses against  the Articles  of War  by soldiers, sailors, and
militiamen when called out for service. (177)

     The  relevant   provisions  of   the  Constitution,   as  to
impeachments, are  that, "the  House of Representatives shall ...
have the sole power of impeachment;" (178) "the Senate shall have
the sole  power to  try all  impeachments. When  sitting for that
purpose, they shall be on oath or affirmation. When the President
of the  United States  is tried, the Chief Justice shall preside;
and no  person shall be convicted without the concurrence of two-
thirds of  the members  present. Judgment in cases of impeachment
shall not  extend  further  than  to  removal  from  office,  and
disqualification to hold and enjoy any office of honor, trust, or
profit under  the United  States; but  the party  convicted shall
nevertheless be liable and subject to indictment, trial, judgment
and punishment,  according to  law." (179)  "The President,  Vice
President and  all civil  officers of the United States, shall be
removed from  office  on  impeachment  for,  and  conviction  of,
treason, bribery,  or other  high crimes and misdemeanors." (180)
"The President  shall ...  have  power  to  grant  reprieves  and
pardons for  offenses against  the United States, except in cases
of impeachment."  (181) "The trial of all crimes, except in cases
of impeachment, shall be by jury." (182) "No bill of attainder or
ex post  facto law  shall be  passed." (183) The Supreme Court of
the  United   States  has   never  decided  any  question  as  to
impeachment, but a consideration of the constitutional provisions
shows clearly  that, under  them, the House of Representatives is
the prosecutor; any civil officer of the United States may be the
defendant; the  Senate of  the United  States is  the court,  its
members being  first sworn  or affirmed, the Chief Justice of the
Supreme Court  of the  United States  presiding in  the case if a
trial of  the President,  and a  concurrence of two-thirds of the
members present being necessary to a conviction; the offenses for
which an  impeached officer may be tried being "treason, bribery,
or other high crimes and misdemeanors," as defined by laws of the
United States  enacted before  the commission of the offense; the
punishment  extending   only  "to   removal   from   office   and
disqualification to hold and enjoy any office of honor, trust, or
profit  under  the  United  States,"  but  without  prejudice  to
indictment, trial,  and conviction  at law  for the same offense;
and a  presidential pardon  not being  pleadable in  bar  of  the
impeachment nor  efficacious in  satisfaction of  a conviction or
impeachment, or in mitigation of the punishment.


The IV Amendment.

111. The exercise  of judicial  power by the United States is, in
some respects,  limited by certain other of the provisions of the
Constitution and  its Amendments. In the most important case that
ever came before the Supreme Court (184) it was held that neither
the President,  nor the Congress, nor the Judicial Department can
deny to  a citizen  any one  of the  safeguards of  civil liberty
incorporated into  the Constitution,  and in that cause a citizen
who was held in custody under a sentence of death pronounced by a
military commission  was released  upon habeas  corpus. The  last
clause of  Section 2  of Article III of the Constitution declares
that "the  trial of  all crimes,  except in cases of impeachment,
shall be by jury; and such trial shall be held in the state where
the said crimes shall have been committed; but when not committed
within any  state, the  trial shall be at such place or places as
the Congress  may by  law have  directed." This  clause  controls
criminal proceedings  in the  District of Columbia. (185) It does
not prohibit  the establishment  of consular tribunals in foreign
lands; (186)  or the  waiver of  jury trial  for minor  offenses.
(187) The  IV Amendment declares that "the right of the people to
be secure  in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no
warrants shall  issue, but upon probable cause, supported by oath
or affirmation,  and particularly  describing  the  place  to  be
searched, and the persons or things to be seized." This Amendment
forbids Congress  to  authorize  a  court  in  revenue  cases  to
require, on  motion of  the government's attorney, the defendant,
or claimant,  to produce  in court his books, papers, etc., under
penalty of admitting the allegations of the government's attorney
as to  that which  those books,  papers,  etc.,  would  prove  if
produced. (188)


The V Amendment:
(a) Due process of law.

112. The V Amendment(189) declares, that "no person shall be held
to answer for a capital, or otherwise infamous crime, unless on a
presentment or  indictment of  a  grand  jury,  except  in  cases
arising in  the land  or naval forces, or in the militia, when in
actual  service   in  time   of  war   or  public  danger."  This
constitutional provision  forbids a  prosecution upon information
in the  courts of  the United  States  in  the  cases  of  crimes
punishable by  imprisonment for  a term  of years at hard labour.
(190) But  a court  may, for  professional misconduct,  strike an
attorney from  its rolls;  (191) and  a court  martial may  try a
naval officer in time of peace, the qualification "when in actual
service in  time of  war or  public danger"  applying only to the
militia.  (192)   This  Amendment   also  forbids  the  trial  or
conviction of  a prisoner  in a case where after presentment made
by the grand jury, the indictment is without re-submission to the
grand jury,  amended by  striking out  words, even  though  those
words be  regarded by  the court  as surplusage,  and a prisoner,
after  trial,  conviction,  and  sentence  on  an  indictment  so
amended, is entitled to his discharge on habeas corpus. (193) The
same Amendment also declares that no person shall "be deprived of
life, liberty,  or property,  without due  process  of  law."  In
Murray's Lessee  v. H.  L. & I. Co., (194) Curtis, J., said, "The
words 'due  process of  law' were  undoubtedly intended to convey
the same  meaning as  the words 'by the law of the land, in Magna
Carta. Lord  Coke, in  his commentary  on those words, (195) says
they mean  due process  of law. The constitutions, which had been
adopted by the several states before the formation of the federal
Constitution, following  the language  of the  great charter more
closely, generally  contained the  words, 'but by the judgment of
his peers,  or the law of the land .... The Constitution contains
no description  of those processes which it was intended to allow
or forbid.  It does  not even  declare what  principles are to be
applied to  ascertain whether  it be  due process. It is manifest
that it  was not  left to  the legislative  power  to  enact  any
process which might be devised. The Article is a restraint on the
legislative as  well as  on the  executive and judicial powers of
the government,  and cannot  be so construed as to leave Congress
free to  make any process due process of law by its mere will. To
what principle,  then, are we to resort to ascertain whether this
process, enacted  by Congress,  is 'due  process.'  To  this  the
answer must  be twofold.  We must examine the Constitution itself
to see  whether this  process be  in conflict  with  any  of  its
provisions. If  not found to be so, we must look to those settled
usages and modes of proceeding existing in the common and statute
law of England, before the emigration of our ancestors, and which
are shown  not to have been unsuited to their civil and political
conditions by  having been  acted on by them after the settlement
of this  country. (196) In a later case, Field, J., said that the
words, "due process of law," mean "a course of legal proceedings,
according  to   those  rules   and  principles  which  have  been
established in our system of jurisprudence for the protection and
enforcement of  private rights.  To  give  such  proceedings  any
validity, there must be a tribunal competent by its constitution,
that is,  by the  law of  its creation, to pass upon the subject-
matter of  the suit; and, if that involves merely a determination
of the  personal liability  of the  defendant, he must be brought
within its  jurisdiction by  service of process within the state,
or by  his voluntary  appearance." (197) In conformity with these
principles it  has been  held, that  the trial  of a  citizen  by
military commission  within a state where the courts are open and
the course  of justice  unobstructed is  not due  process of law.
(198) lt  has also  been held  that there  is  a  deprivation  of
liberty without  due process  of law  when a  court by its order,
warrant, or  commitment holds  a prisoner  in custody,  when  the
prima facie  case against  the prisoner does not show that he has
Committed an  offense of  which the court committing him can take
cognizance, and  in any  such case  of commitment  by an inferior
court of  the United States the Supreme Court will issue a habeas
corpses and  discharge the  prisoner. (199) On the other hand, it
has been  held that the owner of property distrained and sold for
non-payment of taxes due to the United States, is not deprived of
his property  without due  process of law. (200) It has also been
held that  an officer  of the  United States,  whose accounts, as
settled by  the auditing  officers of  the Treasury,  show him to
have neglected to account for and pay over public moneys received
by him,  is not  deprived of  his property without due process of
law, when  the Solicitor  of the Treasury, in obedience to an act
of Congress  has  issued  a  distress  warrant  under  which  the
defaulting officer's  real property  has been  taken in execution
and sold  by a  marshal of  the  United  States  without  further
proceedings, judicial, or otherwise. (201)


The V Amendment:
(b) Jeopardy, etc.

"Nor shall any person be subject for the same offense to be twice
put in  jeopardy of  life or  limb." "Everybody  agrees that  the
principle in  its origin  was a  rule forbidding a trial in a new
and independent  case where  a man  had already been tried once."
(202) Nevertheless  there may  be a  second  trial  if  the  jury
disagree, (203) or if a verdict against the prisoner is set aside
on his motion for error at the trial. (204) But a prisoner in the
Philippine Islands  having been  tried and acquitted by the court
of the  first instance,  and upon  appeal by  the government, the
finding of  acquittal  having  been  reversed  by  the  appellate
tribunal  in   the  islands,   and  the   prisoner  sentenced  to
imprisonment, the  Supreme Court  held(205) that the government's
appeal twice put the prisoner in jeopardy. . When a court imposes
a fine  and imprisonment  as a punishment where the statute under
which the  prisoner was indicted conferred the power to punish by
fine or  imprisonment, and  the fine  has been  paid,  the  court
cannot modify  its judgment  by thereafter  imposing imprisonment
alone, for  the judgment  of the court having been executed so as
to be  a full  satisfaction of  one of the alternative penalties,
the power  of the court as to that offense is ended, and a second
judgment on  the same  verdict is, under such circumstances, void
for want  of power,  and the  party must  be discharged. (206) So
also where  one of  three defendants  jointly indicted for murder
has been acquitted and his associates have been convicted, upon a
setting aside  of  the  verdicts  because  of  a  defect  in  the
indictment, the  verdict of acquittal upon the merits is a bar to
a second  trial of  the person  acquitted; but the defendants who
have  availed   themselves  of   the  invalidity,  of  the  first
indictment cannot,  upon the  granting of a new trial, claim that
their lives  are for a second time jeopardized. (207) Moreover, a
court may, when necessary, discharge a jury from giving a verdict
and order  a trial  by another  jury, and  the defendant  is  not
thereby  twice   put  in  jeopardy  within  the  meaning  of  the
Constitution. (208)

     The V  Amendment also  declares, that  no person  "shall  be
compelled,  in  any  criminal  case,  to  be  a  witness  against
himself." In  Brown v.  Walker,  (209)  it  was  held  that  this
provision does  not protect  a witness  who refuses  to answer  a
question when  he is  by law  afforded absolute immunity, federal
and state,  for the  offense to  which the  question relates. The
fact that the testimony may tend to degrade the witness in public
estimation does  not exempt  him from  the duty  of  disclosure."
(210)

     The provision  that private  property shall not be taken for
public use  without just  compensation  entitles  a  patentee  to
payment for  the use  of his  invention, (211)  and it entitles a
corporation to  compensation for  the taking  of a  franchise  to
exact tolls  as well  as for  the value  of the tangible property
taken; (212)  but payment  need not  be  made  until  the  actual
possession of  land has  passed, (213)  benefits to  the property
left may be set off against damages for the property taken, (214)
and compensation  for an  indirect injury to property need not be
made. (215)  Yet where,  by the construction of a dam, the United
States so  floods lands  belonging to an individual as to totally
destroy its  value, compensation must be rendered. (216) Congress
does not  deprive a  contestant of  a preemption  entry on public
lands of  his property  by confirming  the title  of the original
entryman, for  during the  pendancy of the contest the contestant
has no vested right. (217)


The VI Amendment.

113. The  VI   Amendment  declares   that,   "in   all   criminal
prosecutions, the  accused shall  enjoy the right to a speedy and
public trial,  by an  impartial jury  of the  state and  district
wherein the crime shall have been committed, which district shall
have been  previously ascertained  by law,  and to be informed of
the nature and cause of the accusation; to be confronted with the
witnesses against  him; to  have compulsory process for obtaining
witnesses in  his favour,  and to  have the assistance of counsel
for his defense." (218)

     This  Amendment,   of  course,   applies  only  to  criminal
proceedings; (219)  and the  right to trial by jury may be waived
by persons  charged with minor offenses. (220) When the crime has
been committed  within the territories Congress may designate the
place of  trial at  any time  previous to  the  trial.  (221)  An
indictment for  sending obscene  matter through the mail need not
set  forth   the  objectionable   language  in  full.  (222)  The
requirement that  the prisoner  "be confronted with the witnesses
against him" will not invalidate a conviction in a case where the
witnesses are absent by the procurement of the prisoner, or where
enough has  been proven  to throw  on, him the burden of showing,
and he  having full  opportunity therefor, fails to show, that he
has not  been instrumental  in concealing  or  keeping  away  the
witnesses,  and   ground  having  been  thus  laid,  evidence  is
admissible against him of that which the witnesses testified at a
previous trial  on the  same issue  between the United States and
the prisoner.  (223) In  the event  of the death of witnesses for
the prosecution, testimony given by those witnesses at a previous
trial on  the same issue is admissible ; (224) but their evidence
is not  admissible when their absence is due to negligence of the
officers of  the government.  (225) And  in a trial for receiving
stolen property, the record of the conviction of the thief cannot
be admitted in evidence to prove the theft. (226)


The VII and VIII Amendments.

114. The VII  Amendment declares,  that, "in suits at common law,
where the  value in  controversy shall exceed twenty dollars, the
right of  trial by jury shall be preserved." (227) This Amendment
does not  affect equity  causes in  the federal  courts, for  the
determination by  a court  of equity, according to its own course
and practice  of issues  of fact,  does not  impair the  right of
trial by  jury, because  that right  does not extend to causes of
equitable jurisdiction.  (228) Nor  does  this  Amendment  affect
proceedings upon  claims against  the United  States heard in the
Court of  Claims without  the intervention  of a  jury,  for  the
government being  suable only  by its own consent, may declare in
what court  it will  be sued,  and may  prescribe  the  forms  of
pleading and  rules of practice in that court, and such claims so
prosecuted are  not suits at common law. (229) Nor does it affect
proceedings before  a  commission  created  for  the  purpose  of
hearing and  deciding upon claims against a territorial municipal
corporation which  have no  legal obligation, but which have such
equity as  to cause  provision to be made for their investigation
and payment  when found  proper. (230)  Nor does  this  Amendment
relieve a party from the consequences of his antecedent voluntary
relinquishment of  a right  of trial  by jury  in any  particular
cause, as,  for instance,  in the  case of  a banking corporation
whose state  charter stipulates  that  the  bank  should  have  a
summary remedy by execution without jury trial for the collection
of notes  indorsed to it, and in express terms made negotiable at
the bank.  (231) Nor  is the  granting of  a nonsuit  for want of
sufficient evidence  an infringement of the constitutional rights
of the plaintiff. (232) In all cases, however, in which the right
of trial  by jury is secured by the Constitution the jury must be
unanimous in  rendering its verdict. (233) The VII Amendment also
declares that  "no fact  tried by  a jury  shall be otherwise re-
examined in  any court of the United States than according to the
rules of  the common  law." As  Story, J.,  said  in  Parsons  v.
Bedford, (34), "This is a prohibition to the courts of the United
States to  re-examine any  facts tried  by a  jury in  any  other
manner. The only modes known to the common law to re-examine such
facts, are  the granting  of a  new trial  by the court where the
issue was  tried, or to which the record was properly returnable;
or the  award of  a venire  facias de novo by an appellate court,
for some  error of  law which intervened in the proceedings." The
Amendment obviously  governs  both  the  original  and  appellate
jurisdiction of  the courts of the United States, and forbids the
reversal of  a verdict  of a  jury save  as above  indicated. But
facts tried  by a jury before a justice of the peace may be tried
anew by a jury in the appellate court, for a trial by jury in the
sense of  the common  law and  of the, VII Amendment involves the
presence of a judge having the usual powers of superintending the
course of the trial, instructing the jury on the law and advising
them on  the facts,  and setting  aside their  verdict if  in his
opinion against  the law or the evidence. (235) And a trial court
may make  its decision  of a motion for a new trial depend upon a
remission of  part of  the verdict.  (236)  On  the  other  hand,
Congress cannot  by statute  provide for the removal from a state
court into  a federal  court of causes tried by jury in the state
court, and  for a  retrial in  the federal court of the facts and
law in  such action  in the  same manner  as if the same had been
originally commenced in the federal court. (237)

     The VIII  Amendment declares that " excessive bail shall not
be required,  nor excessive  fines imposed, nor cruel and unusual
punishments inflicted. "This Amendment restricts national and not
state legislative  and judicial action. (238) Neither shooting to
death, (239)  nor electrocution, (240) as modes of inflicting the
death penalty after trial, conviction, and sentence in a court of
proper jurisdiction,  nor a  fine  of  fifty  dollars  and  three
months'  imprisonment  at  hard  labour  for  selling  liquor  in
violation  of   law,  (241)   nor  ten  years'  imprisonment  for
conspiracy to  defraud, nor the infliction upon one prisoner of a
heavier punishment  than that inflicted upon another prisoner for
an identical offense, (242) can be regarded as a violation of the
VIII Amendment.

     The first ten Amendments were proposed by the first Congress
for adoption  by the  states and  were intended  to constitute  a
federal Bill  of Rights. These Amendments constitute restrictions
upon the  United States  and they  are obviously not restrictions
upon the legislative or judicial powers of the states.


The XI Amendment.

115. The Supreme  Court. having,  in Chisholm  v. Georgia,  (243)
affirmed its original jurisdiction in actions brought by citizens
of one  state against another state, in 1797 the XI Amendment was
adopted, declaring  that "the judicial power of the United States
shall not  be construed  to extend  to any suit in law or equity,
commenced or  prosecuted against  one of  the  United  States  by
citizens of  another state,  or by  citizens or  subjects of  any
foreign  state."  That  Amendment  having  taken  effect  on  8th
January,  1798,  in  that  year  the  Supreme  Court  decided  in
Hollingsworth v.  Virginia, (244)  that the  Amendment barred any
further proceedings  in cases then depending in the courts of the
United States  in which a citizen of one state was the plaintiff,
and another  state was  the defendant. In Osborn v. Bank of U.S.,
(45) Marshall, C. J., said: "The XI Amendment ... is of necessity
limited to  those suits  in which  a state  is  a  party  to  the
record," but  he added, (246) "the state not being a party to the
record, and  the court  having jurisdiction  over those  who  are
parties  on   the  record,  the  true  question  is  not  one  of
jurisdiction, but  whether in  the exercise  of its jurisdiction,
the court  ought to make a decree against the defendants; whether
they are  to be considered as having a real interest, or as being
only nominal  defendants." On the other hand he said, (247) "This
suit is  not against  the state  of Ohio  within the  view of the
Constitution, the  state being  no  party  on  the  record."  The
jurisdictional question  in the  cause was as to the power of the
court to  take cognizance of a suit in equity brought by the Bank
of the  United States against the auditor of the state of Ohio to
enjoin the  collection of  a tax  on the  business  of  the  bank
imposed by  a statute  of  Ohio,  and  recover  a  sum  of  money
wrongfully taken  out of  the vaults  of the  bank by  the  state
auditor by way of enforcing the payment of the tax, and the court
sustained the  jurisdiction on  the grounds  stated by  the chief
justice. In  view of  the judgment  in the cause and the dicta of
the chief  justice, it  was not  unnatural that  the presence  or
absence of a state as a party defendant on the record should have
been regarded  as the  criterion by which to determine whether or
not a  suit was within the purview of the XI Amendment. Indeed in
Davis v.  Gray, (248)  the court  went so  far as  to hold that a
receiver of  a railway  could sue  in equity  the governor of the
state incorporating  the railway and the land commissioner of the
state to restrain the issue of patents to individuals for certain
lands theretofore  granted by the state to the railway on certain
conditions, and  resumed by  the state for alleged nonperformance
of the  condition, and  that it  not being  possible to  make the
state a  party the  plaintiff's rights  could be  vindicated by a
decree against the officers of the state, but the later decisions
of the  court have  tended toward  the establishment of a sounder
rule on  this subject;  and it is now settled, that the criterion
is not  the presence or absence of the state as a party defendant
on the record, but the question of fact, is or is not the suit in
substance, though  not in  form, a  suit by  a citizen of another
state against  a state?  If a  state be either a defendant on the
record, or  the real  defendant though not a party on the record,
the XI  Amendment forbids  the court  to take jurisdiction of the
cause, unless  the state by its voluntary appearance, as in Clark
v. Barnard,  (249) submits  itself to  the  jurisdiction  of  the
court. In  conformity with this view it has been held that a suit
by, or  against, the  governor of  a state  in his representative
capacity is a suit against the state; (250) that the XI Amendment
prohibits a  suit in the federal courts against the officers of a
state to enforce the performance of a contract made by the state,
where the controversy is as to the validity and obligation of the
contract, and  where the  remedy sought  is a  performance of the
contract by  the state, the nominal defendants having no personal
interest in  the subject-matter; (251) it has also been held that
where a  state had  bought a railway from a receiver appointed at
its instance,  as the  holder of  the first mortgage bonds of the
railway, the  holders of  junior bonds  having filed  a  bill  to
foreclose their  mortgage and to set aside the sale to the state,
making the governor and treasurer of the state parties defendant,
the state  being a  necessary party  to the relief sought, the XI
Amendment barred  the suit;  (252) and that state officers cannot
be compelled,  at the  suit of  a citizen  of another  state,  to
appropriate the  public money of the state in a way prohibited by
the laws  of the  state, for  such a  suit is in fact against the
state, and  where a state cannot be sued, the court cannot assert
jurisdiction over  the officers  of the  state, so  as to control
them in  their administration of the finances of the state. (253)
It has  also been  held that  the XI Amendment bars a suit by one
state against  another state, where the plaintiff state sues, not
in its  own right,  but only  f or  the benefit of certain of its
citizens who  have assigned  to it their claims against the state
defendant; (254)  that a  private person  cannot bring a personal
suit in the Supreme Court of the United States against a state to
recover the proceeds of property in the possession of that state,
such as  the proceeds  of certain  slaves alleged  to  have  been
illegally seized  by the  state, (255)  and, in the case of In re
Ayers, (256)  that the  XI Amendment  forbids the  court to  take
jurisdiction of a bill in equity filed by a holder of, and dealer
in, coupons  of the  bonds of  the state,  the coupons  under the
statutes of  the state  and the  judgments  of  the  court  being
receivable in payment of state taxes, to enjoin the officers of a
state from  prosecuting, on  behalf of the state, actions against
citizens of the state for collection of taxes, under a statute of
the state directing the prosecution of the actions, and providing
that "if  the defendant  relies on a tender of coupons as payment
of the taxes claimed, he shall plead the same specifically and in
writing, and  file with  the plea  the coupons averred therein to
have been  tendered," and  "the burden  of proving the tender and
the genuineness  of the  coupons shall be on the defendants;" the
equity set up by the plaintiffs in the injunction suit being that
they had purchased coupons for the purpose of dealing in them and
selling them  to taxpayers  to use  in payment  of taxes  to  the
state, and  that, unless  the  action  threatened  by  the  state
officers were  enjoined, the plaintiffs would not be able to sell
their coupons  at a  profit. So,  also, suit cannot be maintained
against a  state officer  to compel  the levying of a special tax
for the  benefit of  bondholders. (257) On the other hand, it has
been held  that the Amendment does not protect from suit a county
of a  state, (258), nor prohibit the exercise by the court of its
appellate jurisdiction  over state  courts in  cases of  criminal
cognizance, for the purchase or prosecution of a writ of error to
reverse a  criminal conviction at the prosecution of the state is
not the Commencement or prosecution of a suit at law against that
state; (259)  nor does  the XI Amendment prohibit the exercise by
the court  of jurisdiction over a controversy between individuals
as to  land granted by and claimed under a state ; (260) nor does
the fact that a state is a, or the sole, shareholder in a banking
corporation prevent  the courts  of the United States from taking
cognizance of  a suit  against such  a corporation, (261) for, as
Marshall, C. J., said, (262) "when a government becomes a partner
in any trading company, it divests itself, so far as concerns the
transactions of  that company,  of its  sovereign character,  and
takes that of a private citizen."  Nor does the fact that a state
claims property,  which is  not in  its own possession but in the
possession of  an individual  who has  been made  defendant in an
action to  recover that  property, oust  the jurisdiction  of the
court of the United States, nor forbid the court to give judgment
in favour  of the  plaintiff. (263)  It is likewise well settled,
that "when  a plain  official  duty,  requiring  no  exercise  of
discretion, is  to be  performed" by  an officer of a state, "and
performance is  refused, any  person who  will  sustain  personal
injury by  such  refusal  may  have  a  mandamus  to  compel  its
performance; and  when such  duty is threatened to be violated by
some positive  official act,"  of an  officer of  a  state,  "any
person who  will  sustain  personal  injury  thereby,  for  which
adequate  compensation   cannot  be  had  at  law,  may  have  an
injunction to  prevent it," (264) or he may maintain an action at
law for  damages against  the officer  as a wrongdoer. "In either
case, if  the officer  plead the authority of an unconstitutional
law for the non-performance or violation of his duty, it will not
prevent the  issuing of  a writ.  An unconstitutional law will be
treated by the courts as null and void." (265) In conformity with
this principle,  it has  been held that the XI Amendment does not
forbid the  courts of  the United  States to take cognizance of a
cause wherein  a federal  agency, as,  for instance,  a  national
bank, brings  suit against  the officers of a state to enjoin the
enforcement of  an unconstitutional  law of the state taxing that
agency. (266)  It has  also been  held that state officers may be
enjoined at  the suit  of a  holder of  consolidated bonds of the
state which had been issued under an agreement for the funding of
the debt  of the  state, from  issuing others of the consolidated
bonds in  violation of  the contract  between the  state and  its
bondholders ;  (267) and  that an  action brought  by a  taxpayer
against an  officer of  a state to recover possession of property
which   that    officer   has    wrongfully   seized   under   an
unconstitutional law  of the state for non-payment of taxes is an
action against  that officer  as a  wrongdoer, and  not  such  an
action as is prohibited by the XI Amendment. (268)

     As the immunity from suit is a personal privilege, the state
may waive  that privilege, and it does waive it, when, in a cause
pending in  a court  of the  United States,  in which  it  has  a
sufficient interest to entitle it to become a party defendant, it
causes an  appearance to be entered by counsel on its behalf, for
such an  appearance is a voluntary submission to the jurisdiction
of the  court. (269) It is obvious that the XI Amendment does not
affect the  jurisdiction granted by the III Article to the courts
of the  United States  in actions wherein a foreign state, or one
of the  United States,  is the  plaintiff and  one of  the United
States is the defendant. (270)


The relations between the federal and state courts.

116. The federal  supremacy prevents  the states  from regulating
the process  or practice  of the  courts of  the United States at
law,  (271)  or  in  equity,  (272)  or  in  causes  of  criminal
cognizance, (273)  but "the  laws of  the several  states, except
when the Constitution, treaties, or statutes of the United States
otherwise require  or provide,  shall be  regarded  as  rules  of
decision in  trials at  common law.  in the  courts of the United
States in  cases where  they apply."  (274) The federal supremacy
also forbids  the courts  of the  states to refuse obedience to a
mandate of  the Supreme  Court of  the United States, reversing a
judgment of  a state  court  in  a  cause  which  is  of  federal
cognizance; (275)  and  it  prevents  a  state  legislature  from
annulling by statute the judgment of a court of the United States
in a  cause which  is within  the jurisdiction of the court. (76)
While a state cannot confer jurisdiction on a court of the United
States, yet  a state  may by  its legislation  create  legal  and
equitable rights  which can  be enforced in a court of the United
States in a cause whereof that court has acquired jurisdiction by
reason of  either the  citizenship of  the parties or the federal
character of  the subject-matter  of litigation;  thus,  pilotage
being  a   subject  of   admiralty  and,  therefore,  of  federal
jurisdiction, a  pilot may sue in a court of the United States to
recover pilotage under a state statute; (277) and the right under
a state  statute  to  recover  damages  for  a  death  caused  by
negligence is  enforceable in a cause between proper parties in a
court of the United States; (278) and liens created by state laws
in favour  of material  men for  supplies furnished to vessels in
their home  ports or  for materials furnished to ships in process
of construction  may be  enforced in  the courts  of  the  United
States. (279)

     A court  of the United States cannot enjoin proceedings in a
court of  a state,  (280) save  in aid  of bankruptcy proceedings
pending in  a court  of the  United States,  or  as  a  means  of
preventing the  enforcement in  a court  of a state of a judgment
entered therein  after a  cause has  been properly  removed to  a
court of  the United  States; (281)  nor can  the courts  of  the
United States  issue writs  of mandamus  to courts of the states,
except to compel the performance of purely ministerial, (282) and
not judicial, (283) duties.

     Chattels taken in execution under the judgment of a court of
a state and delivered to a claimant upon his giving bond therefor
cannot be seized by a marshal under the process of a court of the
United States.  (284) A  court of  the United  States  exercising
jurisdiction  in   bankruptcy  cannot   divest  liens   upon  the
bankrupt's   property    created   by   the   judgments,   either
interlocutory or  final, of  the courts  of the states; (285) the
assets of  the estate  of an  insolvent decedent  in  process  of
judicial administration  under the  order of a probate court of a
state are  not subject  to levy  under an  execution issued  by a
court of  the United States; (286) and the trustee appointed by a
court of a state under a state statute to liquidate a corporation
whose charter has been forfeited cannot be sued in a court of the
United States  by creditors  of the  corporation  to  compel  his
allowance of a claim against the corporation. As Catron, J., said
in the  judgment in  the case  of The  Bank of Alabama v. Dalton,
(118) "In  administering justice ... the states of this Union act
independently of each other, and their courts are governed by the
laws and  municipal regulations  of that state, where a remedy is
sought, unless  they are  controlled by  the Constitution  of the
United States,  or by laws enacted under its authority." The most
important of  the restraints imposed by the Constitution upon the
exercise of  judicial jurisdiction  by the states result from the
grant in  Article III  of the  Constitution, of judicial power to
the United States over certain subjects of jurisdiction, and from
the power  of Congress  to render  that  jurisdiction  exclusive.
Nevertheless, as  the Constitution,  laws, and  treaties  of  the
United States  are "the  supreme law  of the  land," the  states,
wherever Congress  has not,  by legislation  within the limits of
its  constitutional   powers,  excepted   any  subject  from  the
jurisdiction of  their courts, may exercise jurisdiction therein,
and, in  such cases, rights arising under the Constitution, laws,
and treaties  of the  United States may be administered, subject,
of course,  to the appellate jurisdiction of the Supreme Court of
the United  States, and  to the  power of  removal to the federal
courts of  the first  instance; thus, a tribunal constituted by a
state may  enforce the  militia laws  of the United States; (289)
and an  assignee in  bankruptcy may  sue in a court of a state to
recover the  assets of the bankrupt. (290) But where Congress has
expressed its  will that  the courts  of the  United States shall
exercise exclusive  jurisdiction over any subject-matter which is
included within the constitutional grant of judicial power to the
United States,  the courts of the states cannot directly exercise
judicial  jurisdiction   over  such   subject-matter.  Upon  this
principle, a  court of  a state  cannot take cognizance of an act
declared to  be criminal  by the  statutes of  the United States,
unless that act be also an offense against the laws of the state.
(291) A  state court  cannot take  jurisdiction  of  a  cause  of
admiralty cognizance,  (292) such  as a proceeding in rem founded
upon a  contract for  the transportation of passengers by sea, or
upon a  collision, (293)  or upon  a contract  of  affreightment,
(294) but  a state  court may  take jurisdiction  of an action in
personam for  mariners' wages,  (295) or  of a  proceeding in rem
founded upon  a lien  given by  a  state  statute  for  materials
supplied in  building a  ship, (296)  for such  actions  are  not
necessarily of  admiralty cognizance.  A state  court cannot take
jurisdiction of  an action at law against a foreign consul. (297)
A state  court cannot  take jurisdiction  in patent  causes,  nor
determine  the   validity  of   a  patent,   or  a   question  of
infringement, (298)  but a state court may incidentally pass upon
the validity of a patent as, for instance, where it is questioned
in an  action for  the price of the patent. (299) The distinction
running through  the cases  is, that, where Congress has excepted
from the action of the courts of the states any subject-matter of
federal jurisdiction  as  designated  in  the  Constitution,  the
courts of  the  states  thence-forth  cannot  directly,  but  may
indirectly and  collaterally, act  upon such  subject-matter. The
courts of  the states  cannot issue  an injunction  before  final
decree, nor  an attachment  on mesne  process, against a national
bank. (300)  The federal  supremacy forbids a court of a state to
issue a  mandamus to an officer of the United States, (301) or to
try a  federal officer for an act done by him in the discharge of
his official  duties, (302)  or,  by  its  process,  to  take  in
execution goods  imported into  a port  of the United States, but
not yet  entered at the custom-house for payment of duties to the
United States,  (303) or  goods, which,  having been  seized  for
violation of  the revenue  laws of  the United States, are in the
custody of  a marshal of the United States. (304) Nor can a court
of a  state take  jurisdiction of  a suit to determine whether or
not property  has been rightfully forfeited under the laws of the
United States.  (305) Nor can it take jurisdiction of a complaint
for perjury  in testifying  before a  local notary  public upon a
contested congressional  election. (306)  Nor can  a court  of  a
state by  injunction restrain  the execution  of a  judgment of a
court of  the United  States; (307)  nor, under a state insolvent
law, regulate the distribution of assets of an insolvent national
bank; (308)  nor discharge  a defendant  held in  custody under a
capias ad  satisfaciendum issued by a court of the United States;
"nor replevy  property taken  in execution  under a judgment of a
court of  the United States; (310) nor order the release, after a
hearing on  habeas corpus,  of a  prisoner held  in custody by an
officer of the United States under a warrant of commitment from a
commissioner of  a circuit  court of  the United  States  upon  a
charge of  the commission  of an  offense against the laws of the
United States,  or of  a prisoner  held in  Custody by the United
States after  a trial  and conviction  in a  court of  the United
States of an offense against the laws of the United States; (311)
nor release upon habeas corpus an enlisted soldier in the army of
the United  States, detained  in custody  under the  order of his
commanding officer.  (312) Nor can an attachment of a debt by the
process of  a state  court, after the commencement of a suit upon
that debt  in a  court of  the United  States bar the plaintiff's
recovery in  that suit;  (313) nor  can  the  pendency  of  state
insolvent proceedings  be set  up as a bar to suits in the courts
of the  United States brought by parties who are constitutionally
entitled to sue therein. (314)

     In the  cases of  persons who,  or of property which, may be
subject to  the jurisdiction  of the courts of the United States,
and also  to that of the courts of the states. that jurisdiction,
which first  actually  attaches  either  to  the  person  or  the
property, will  retain control  and cannot be divested by process
issued from  the other  jurisdiction. (315)  An officer  who,  in
executing this  process issued  by a  court in a cause within its
jurisdiction, seizes  property which  that  process  specifically
designates, is  not liable  to action  therefor  in  a  court  of
another jurisdiction;  but an  officer who,  under a  judgment in
personam, seizes  property not  specifically  designated  in  the
process is liable, and may be sued therefor in a court of another
jurisdiction, (316)  and the party injured by such a wrongful act
by a  marshal of  the United  States may  sue  on  the  marshal's
official bond;  (317) or, he may file a bill in the federal court
to restrain or regulate its judgment. (318)


The XIV Amendment as affecting state judicial proceedings.

117. The exercise  of judicial jurisdiction by the states is also
restricted by that provision of the XIV Amendment which declares,
"Nor shall  any state  deprive any  person of  life, liberty,  or
property without  due process  of law." Within the meaning of the
Constitution, this  due process  of law  is secured when the laws
operate on  all alike  and no  one is  subjected to  an arbitrary
exercise of  the powers  of government. (319) The provision "does
not control  mere forms  of procedure  in  the  state  courts  or
regulate practice therein. All its requirements are complied with
provided in  the proceedings  which are  claimed not to have been
due process of law the person condemned bas had sufficient notice
and adequate  opportunity has been afforded him to defend." (320)
In proceedings  in personam service must be made within the state
unless the  defendant voluntarily appears; (321) in proceeding in
rem the  res must  be within  the jurisdiction  and  constructive
notice of  the proceedings  must be  given.  (322)  A  state  may
regulate its  judicial proceedings,  (323) provided  that it does
not  discriminate  against  classes  of  citizens.  A  state  may
therefore restrain  or take  away the  right of  trial by jury in
civil cases;  (324) or it may permit the prosecution of crimes by
information after  examination and  commitment by  a  magistrate;
(325) or  it may  provide for  the trial  of criminal  cases by a
struck jury,  (326) or  by a  jury composed  of eight  instead of
twelve jurors;  (327) or  it may  permit a  person  charged  with
murder to  waive the  right of  trial by  jury; (328)  or it  may
permit a  court to  enjoin the  commission of  a crime  and  then
punish  its   commission  by  contempt  proceedings  without  the
intervention of  a jury;  (329) or  it may  even provide that any
person  may  summarily  destroy,  without  judicial  proceedings,
fishing nets that have been placed in public streams in, defiance
of statute. (330)

     A state may freely proscribe the jurisdiction of its several
courts, both  as to  their territorial  limits and  the  subject-
matter, amount  and finality  of their  respective judgments  and
decrees,  and   it  may   vest  in   one  court  final  appellate
jurisdiction over  the courts of certain counties, and in another
court the like jurisdiction over other counties. (331) It may, in
providing for  local prohibition  of retail liquor selling, leave
the word  "retail" to  judicial definition, aud the amount of the
penalty to judicial discretion. (332) A statute of a state which,
as construed  by its  courts, provides  that a person called as a
juror in  the trial of a criminal cause is not to be disqualified
because he  has formed  an opinion or impression based upon rumor
or newspaper  statements, if  he shall  upon oath  state that his
verdict will be based only on the evidence at the trial, does not
deprive the  prisoner tried  by such jurors of his life, liberty,
or property  without due  process of law. (333) And in a criminal
trial,  upon  proof  of  non-residence,  permanent  absence,  and
inability to  procure the  attendance of a witness, the state may
put in  evidence the  deposition of  such witness, taken upon the
preliminary  examination  before  a  committing  magistrate  when
defendants  were   present  and   their  counsel   was   afforded
opportunity  to  cross-examine.  (334)  The  Amendment  does  not
interfere with  a state's  regulation of the remedies afforded to
creditors of  its municipalities  for  the  collection  of  their
debts. (335)  But due  process of  law is  denied by  a statutory
requirement that a master's deed be taken out by the purchaser at
a foreclosure  sale within  a specified  time, where  failure  to
comply with  such requirement  is held by the highest state court
to destroy  the rights  of  the  mortgagee  in  possession  after
condition broken,  and to  entitle the mortgagor, without payment
of his  debt,  to  recover  possession  in  ejectment  (336)  The
Amendment  being  directed  against  state  legislation  and  not
against a  judicial misconstruction  of such  legislation by  the
courts of  the state,  when a  state legislature has enacted laws
for the  government of  its  courts,  which,  if  followed,  will
furnish all  parties with the needed protection to life, liberty,
and property,  it has  performed its  constitutional duty, and if
one of  its courts,  acting  within  its  jurisdiction,  make  an
erroneous  decision,   the  state  cannot  be  deemed  guilty  of
violating the  Amendment; thus, where a state statute required of
all guardians  the giving a bond before selling their wards' real
estate, the fact that a court permitted a sale to be made without
requiring the  giving of  such a  bond is  not a violation of the
Amendment; (337) nor is due process of law denied where the court
permits an  irregularity in the polling of the jury in a criminal
trial, the irregularity working no injury to the defendant; (338)
nor is  due process  of law denied where the court refuses a jury
trial in  civil proceedings,  even though  such mode  of trial be
required  by   statute;  (339)   nor  do   mere  errors   in  the
administration of a statute afford constitutional grounds for the
reversal  of  a  judgment.  (340)  On  the  same  principle,  the
constitutional requirement is not violated when an accused person
is tried  and sentenced  to imprisonment by a judge de facto of a
court de jure. (341)

     But the  phrase "due  process of  law" does  not necessarily
mean a  judicial proceeding. The nation from whom we inherit that
phrase has  never relied  upon the  courts  of  justice  for  the
collection of  her taxes,  though she passed through a successful
revolution in  resistance to unlawful taxation. (342) Due process
of law  is  secured  in  the  procedure  for  the  collection  of
assessments and  taxes, (343) and in the exercise of the right of
eminent  domain  (344)  if  provision  be  made  for  a  mode  of
confirming and  contesting the  charge thus  imposed,  with  such
notice to  the person,  or such  proceedings  in  regard  to  the
property as is appropriate to the nature of the case. It has also
been held that a state may by statute prohibit the manufacture of
liquors; (346)  and it  may prohibit  their sale  in  saloons  to
women; (347)  it may  regulate the  hours of  labour  of  persons
employed in  hazardous occupations;  (348) it  may  prohibit  the
waste of natural gas and oil; (349) it may fix a reasonable limit
upon  the  rates  which  may  charged  by  railway,  (350)  grain
elevator, (351)  and water  supply (352) companies; it may impose
special liabilities upon railroad companies; (353) it may require
practitioners of  medicine to  undergo examinations  as to  their
attainments; (354)  it may  reduce  the  rate  of  interest  upon
judgments previously obtained in its courts, (355) it may provide
that an  insurer cannot, in an action upon a policy of insurance,
deny that  the value of the goods destroyed was that set forth in
the insurance papers; (356) it may require the redemption in cash
of store  orders issued  by employers  in payment of wages due to
employees; (357) it may prohibit the manufacture and sale of oleo
margarine containing  coloring matter;  (358) it may prohibit its
railway companies  from charging  greater rates  for shorter than
for  longer   hauls,  except   by  permission   of  the  railroad
commission; (359)  it may  require railways to erect and maintain
stations on orders of the railroad commission which are not shown
to be  unreasonable; (360)  it may  forbid the selling of options
for the  purchase or sale of commodities; (361) and it may forbid
the maintenance  of a  cow stable within municipal limits without
permission from  the municipal  assembly. (362)  It has also been
held that  a state may by statute make water rates a lien on land
prior to  the lien  of a  mortgage  of  date  subsequent  to  the
statute; (363)  it may  validate a  legally  defective  mortgage;
(364) it  may require  a purchaser  of land under a sale for non-
payment of taxes to bring his possessory action within five years
after the  sale; (365) it may shorten the period of limitation of
actions, provided it allows a reasonable time for the bringing of
actions after the passage of the statute and before the bar takes
effect; (366)  and it  may, without  depriving a  debtor  of  his
property, repeal  a statute  of Limitations  after  the  debt  is
thereby barred.  (367) So also a state may tax remainders created
by will before the precedent estates terminate and the remainders
vest in  possession. (368)  So also  a state  may provide for the
inspection of  mines, establish a fee for the same, and allow the
inspectors to  determine  the  number  of  inspections  per  year
required by  each mine;  (369) the  date of  the execution  of  a
murderer may be fixed by the court in the absence of the convict,
(370) or  it may  be fixed by the governor; (371) if permitted by
statute, the  governor may  remove a  subordinate  official  from
office; (372)  and a  mayor may, by municipal ordinance, be given
the power  to grant  or refuse  permission to move buildings upon
the public  streets of the City. (373) On the same principle, the
trial of  contested elections  may  be  committed  by  the  state
constitution to the legislature of the state and the provision of
the XIV  Amendment that  no  person  shall  be  deprived  of  his
property without  due process  of law  is not  thereby  violated.
(374)


The "full faith and credit" clause.

118. The judicial  action of  the states  is also  restrained  by
Section I of Article IV of the Constitution, which declares that,
"full faith and credit shall be given in each state to the public
acts, records, and judicial proceedings of every other state. And
the Congress  may by  general laws  prescribe the manner in which
such acts,  records, and  proceedings shall  be proved,  and  the
effect  thereof."   (375)  Under  this  constitutional  grant  of
authority  Congress  has  enacted(376)  that  "the  acts  of  the
legislature of  any state or territory, or of any country subject
to the  jurisdiction of the United States, shall be authenticated
by having  the seals of such state, territory, or country affixed
thereto. The  records and  judicial proceedings  of the courts of
any state  or territory,  or of any such country, shall be proved
or admitted  in any  other court  within the United States by the
attestation of  the clerk,  and the seal of the court annexed, if
there be  a seal, together with a certificate of the judge, chief
justice, or presiding magistrate, that the said attestation is in
due form.  And the  said  records  and  judicial  proceedings  so
authenticated, shall  have such faith and credit given to them in
every court within the United States as they have by law or usage
in  the   courts  of  the  state  from  which  they  are  taken."
Legislative acts  of a  state are,  under the terms of the Act of
1790, authenticated  by the seal of the state, and in the absence
of contrary proof, the seal will be presumed to have been affixed
by the officer having its custody and duly authorized to affix it
to the  record. (377) Such acts will "be given the same effect by
the courts  of another  state that they have by law and usage" in
the state  of their enactment; (378) "and, as the courts of every
state and  country have  the exclusive  power of  construing  its
local statutes,  their construction  thereof will  be followed in
the courts  of other  countries and  state. (379) On this line it
has been  held that if a state court has decided that a law is in
harmony with  the state  constitution its validity, so far as the
state constitution  is concerned, cannot be questioned elsewhere.
(380) Yet  even an  erroneous construction  of a  statute by  the
courts of  another state does not deny to it the faith and credit
required by  the Constitution  where the  local courts  have  not
considered the  statute or  where their construction has not been
proved as  a fact  in the foreign state. (381) And a construction
by a  state court  of decrees  made by  a federal  court and by a
court of  another state  will not  be held to deny full faith and
credit to  those  decrees  unless  the  unreasonableness  of  the
construction is  clearly shown.  (382) It  is  essential  to  the
enforcement in  the courts  of  the  states  of  the  legislative
acts(383) and  records of judicial proceedings in the courts(384)
of another  state, that  they be  certified in  strict compliance
with the  directions of  the act of Congress. But a judgment of a
state court,  though certified  in accordance  with  the  act  of
Congress, does  not operate  proprio vigore in another state, and
in order  to give it the force of a judgment in that other state,
suit must  be brought upon it there, and the period of limitation
as prescribed  by the  lex fori  may be pleaded as against such a
judgment. (385)  When so  certified and sued upon, such judgments
must be  given the  same effect  that is  given to  them  in  the
jurisdiction in  which they  have been rendered. Therefore, to an
action on  a judgment  so certified, nil debet cannot be pleaded;
(386) nor,  it seems, can fraud be pleaded to an action on such a
judgment. (387)  When the record of a judgment falsely recites an
appearance by  counsel, it cannot be collaterally impeached, when
sued upon  in another  state, for it might have been set aside by
audita quiterela,  in the  jurisdiction wherein  it was rendered.
(388) But  no greater  effect can  be given in a state court to a
judgment of  a court of another state than would be given to that
judgment in  the state  where  rendered.  Therefore,  a  personal
judgment which  has been  rendered in  one state  against several
parties jointly,  service of  process having been made on some of
them, or  they having  voluntarily appeared,  and service  having
been made  by publication  as to  the  others,  is  not  evidence
outside of  the state  of any  liability on the part of those not
personally served.  (389) Nor  will a  judgment rendered  in  one
state against two joint debtors, only one of whom has been served
with process,  support an  action in  a court  of  another  state
against the  party not  served, nor  avail as the foundation of a
judgment against  him. (390)  A judgment  recovered in  one state
against two  joint defendants, one of whom has been duly summoned
and the  other has not, and which is valid and enforceable by the
Law of  that state  against the  party served  with process, will
support an  action against  that party in another state. (391) It
is an essential prerequisite to the enforcement in any court of a
judgment, either  in personam  or in  rem, rendered in any court,
that the  court rendering the judgment had by law jurisdiction of
the subject-matter of the suit; (392) and, if the judgment was in
personam, that  the defendant  either  was  served  with  process
within the  territorial jurisdiction of the court, or voluntarily
appeared in the suit; (393) and, if the judgment was in rem, that
the res  was within  the territorial  jurisdiction of  the  court
acting upon it, and was properly brought under its control; (394)
for process  issued by  any court,  and served  personally  on  a
defendant  out  of  its  territorial  jurisdiction,  and  process
published  within  that  territorial  jurisdiction,  are  equally
unavailing in  a proceeding  to establish a personal liability on
the part  of the  defendant, and  while,  where  property  is  by
seizure or  some equivalent  act brought  within the control of a
court, substituted service by publication is sufficient to inform
a non-resident  owner of  the  property  of  the  object  of  the
proceeding,  such  publication  is  not  effectual  to  ground  a
personal liability  upon. (395)  But if  a non-resident defendant
has by  attorney voluntarily appeared in the action, and judgment
has been  rendered in  his favour  in  the  court  of  the  first
instance,  he   may,  after  the  withdrawal  of  his  attorney's
appearance, be  notified, by  publication, of  a writ of error or
appeal, by  means of  which the  cause is removed to an appellate
tribunal, and  a judgment  of reversal  in that  tribunal will be
binding on him as a judgment in personam, and as such enforceable
against him  in the  court of another state. (396) And a judgment
in personam  may be  rendered in  proceeding  in  rem  against  a
defendant out  of the  jurisdiction, who  has  by  his  voluntary
appearance made  himself a  party to  the litigation,  and such a
judgment is  enforceable by  an action  thereon in  another state
against that  defendant. (397)  Yet where  the defendant takes no
part in  the proceedings  after responding  to the  complaint  as
filed, and  on those pleadings a judgment is rendered which is in
no way  responsive to  them, that  fact may be set up in bar to a
recovery on  the judgment. (398) A court may take jurisdiction of
an action for divorce brought by a citizen of its own state, upon
constructive notice  of the  action being given to the defendant,
(399) but  where neither  party is  domiciled within  the  state,
then, although the defendant has received actual notice, a decree
of divorce  is not  entitled to  faith and  credit in  any  other
jurisdiction. (400) Where a corporation chartered by one state is
permitted by  another state  to transact  business  therein  upon
condition that  service of  process upon  a resident agent of the
corporation should be considered as service upon the corporation,
a judgment  rendered in the latter state against the corporation,
and based  upon such  service of  process upon  the agent must be
received in  the state  chartering the  corporation with the same
faith and  credit that  is given to it in the state wherein it is
rendered. (401)  But a  judgment in  personam rendered  against a
foreign corporation  in a  suit begun  in a  state  court  by  an
attachment of  property, and, as incident thereto, a service of a
copy of  the writ  and an inventory of the attached property on a
resident agent,  without appearance  by the  corporation, is  not
conclusive in  another action to which the corporation is a party
in a court of the United States. (402) Where a court of one state
grants probate  of a will disposing of lands in another state, it
merely decides  that the  will is executed in accordance with the
laws of  the domicile, and a court of the state in which the land
is situated  does not  violate the  constitutional  provision  in
deciding that  the will  was not  executed in accordance with its
own laws.  (403) The  record of  a judgment  rendered in  another
state may  be contradicted  as to the facts necessary to give the
court jurisdiction,  and its  recital of  the existence  of  such
facts is  not conclusive,  and want  of jurisdiction may be shown
either as  to the  subject-matter or  as to  the person,  and, in
proceedings in  rem, as  to the  res. Therefore,  in an action of
trespass de  bonis, etc., in a court of the United States against
a county  sheriff of New Jersey for taking the plaintiff's oyster
boat, the defendant having pleaded in justification the record of
a forfeiture of the boat under a New Jersey statute authorizing a
summary conviction  on a hearing by two justices of the county in
which the  seizure was made, it was held, that the recital in the
record of  a seizure  of the  boat in  the county  in  which  the
justices exercised  jurisdiction was  open  to  contradiction  by
evidence that  the seizure  was not  made within  the territorial
limits of  that County. (404) On the same principle, a recital in
a record of a personal service of a summons upon a defendant, may
be contradicted by proof that the defendant was not served; (405)
and a  recital of  appearance by  attorney may be contradicted by
showing that  no  attorney  was  authorized  to  appear  for  the
defendant  in   the  suit.   (406)  Administrators  in  different
jurisdictions of the personal estate of the same decedent are not
privies  in   estate  to  the  extent  that  a  judgment  in  one
jurisdiction against  one administrator  is  enforceable  in  the
other jurisdiction  against the  administrator therein; (407) and
the grant  of letters  of  administration  in  one  state  cannot
authorize the  administrator to  maintain any suit in the courts,
either state  or federal,  held in any other state." An objection
to the  informality of  the authentication  of a record cannot be
made by  a party  who has  antecedently  offered  that  identical
record in  another proceeding.  (409) In  a suit  for  wages  the
defendant can  set  up  a  judgment  in  garnishment  proceedings
against the  same wages,  recovered in  another state,  and  that
judgment is  a bar  to further  action. (410)  A state statute of
limitations, providing  that suits  upon  judgments  rendered  in
other states,  if not  brought within two years, shall be barred,
is a  bar to  an action  on such  a judgment against one who only
became a  citizen of  the state  on the  day on  which  suit  was
brought. (411) A judgment recovered on a penal statute of a state
cannot be enforced in another jurisdiction; (412) but the rule is
otherwise when  the judgment  has been  recovered  on  a  statute
affording a  private remedy  to the person injured. (413) A state
may deny  to its  courts jurisdiction  over suits between foreign
corporations on  a foreign  judgment for  "this provision  of the
Constitution establishes  a  rule  of  evidence  rather  than  of
jurisdiction. (414)  Wherever a state court refuses in a cause to
give due  effect to  a judgment rendered in a court of the United
States,  or   in  a   court  of  another  state,  having  by  law
jurisdiction of  the subject-matter  of  litigation,  and  having
acquired by due service of process, or otherwise, jurisdiction of
the person  of the party against whom judgment has been rendered,
the action of the state court in so refusing is subject to review
in the  Supreme Court of the United States under the 25th Section
of Judiciary  Act of  1789, and  the Act  of 5th  February, 1867.
(415) The  record of a court of the United States is sufficiently
proved when  certified by  the clerk of the court under its seal.
(416) And  the judgments of the courts of the United States, when
sued upon,  or set  up by way of defense in state courts, are, if
rendered in  a cause  of which the court of the United States had
jurisdiction both  as to  the subject-matter  and the  res or the
person of  the defendant, conclusive upon the parties and privies
thereto, and  enforceable in  the state courts to the same extent
as in  courts of  the United  States. (417) Judgments rendered in
courts of the United States- in causes, jurisdiction of which was
obtained by  reason of  the citizenship  of the  parties, and  in
which the  law of  tile state  within which  the  court  sat  was
administered, have  only that validity and effect which is due to
a judgement  of a  court of the state in such a cause, (418) and,
therefore, a  court of  a state  which refuses  to give a greater
effect to  such a judgment of a court of the United States cannot
be said  to decide  against a  title or  right claimed  under  an
authority exercised under the United States.


Footnotes:

(1)  Prigg v. Pennsylvania, 16 Pet. 539; Kentucky v. Dennison, 24
     How. 66.

(2)  Cohens v.  Virginia, 6  Wheat.  264;  Bank  of  Hamilton  v.
     Dudley's Lessee,  2 Pet. 492, 524; Dodge v. Woolsey, 18 How.
     331, 347;  Martin v. Hunter's Lessee, 1 Wheat. 304; Missouri
     v. Andriano,  138 U.  S. 496;  Connolly v. U.S.  P. Co., 184
     id. 540.

(3)  Marbury v.  Madison, 1  Cr. 1  37;  Van  Horne's  Lessee  v.
     Dorrance, 2  Dall. 304;  The Mayor  v. Cooper,  6 Wall. 247;
     Norton v. Shelby County, 118 U.S.  425.

(4)  6 Wheat. 385.

(5)  Chisholm v. Georgia, q Dall. 419, 475; Cohens v. Virginia, 6
     Wheat. 264,  378; Martin  v. Hunter's  Lemee, I  Wheat. 304,
     331, 343; The Moses Taylor, 4 Wall. 411, 429.

(6)  Hans v. Louisiana, 134 U.S.  1.

(7)  Tennessee v. Davis, 100 U.S. 257, 264.

(8)  Cooke v. Avery, 147 U.S.  375, 384. .

(9)  See also  Cohens v.  Virginia, 6  Wheat. 264, 379; Osborn v.
     Bank of  the U.S.,  9 id.  738, 824;  The Mayor v. Cooper, 6
     Wall. 247,  252; G.W. & W. Co. v. Keyes, 96 U.S.  199, 20,1;
     R. Co. v. Mississippi, 102 id. 135, 140; Ames v. Kansas, Ill
     id. 449,  462; K.  P. R.  v. A., T. & S. P. R., 112 id. 414,
     416; Provident  Savings Society  v. Ford, 114 id. 635; P. R.
     Removal Cases, 115 id. 1; Metcalf v. Watertown, 128 id. 586;
     Burthe v.  Denis, 133 id. 514; Bock v. Perkins, 139 id. 628;
     Mitchell v. Smale, 140 id. 406; Cooke v. Avery, 147 id. 375;
     Belden v.  Chase, 150  id. 674; N. P. R. v. Colburn, 164 id.
     383; In  re Lennon, 166 id. 548; A. Ex. Co. v. Michigan, 177
     id. 404;  W. U. T. Co. v. A. A. R., 178 id. 239; Lampasas v.
     Bell, 180  id. 276;  Tulloek v. Mulvane, 184 id. 497; Patton
     v. Brady,  ibid. 608;  Howard v. U.S. , ibid. 676; v. W. Co.
     v. Vicksburg,  185 id.  65; Filhiol  v. Maurice,  ibid. 108;
     Talbot v.  S. C.  First Nat.  Bank, ibid.  172; Swafford  v.
     Templeton, ibid.  487; Marsh  v. N.,  S. & Co., 140 id. 344;
     Holt v. 1. Mfg. Co., 176 id. 68; Arkansas v. K. & T. C. Co.,
     183 id.  185; C. C. D. Co. v. Ohio, ibid. 238; N. F. & P.'W.
     v. 0.  W. S.Co., ibid. 216; F.-G. L. S. Co. v. Springer, 185
     id. 47;  Kennard v.  Nebraska, 186 id. 304; Sawyer v. Piper,
     189 id.  154. For  cases affecting  officers of  the  United
     States see  In re  Neagle, 135 U.S.  1; Sonnentheil v. M. B.
     Co., 172 id. 401; Bausman v. Dixon, 173 id. 113; Auten v. U.
     S. Nat.  Bank, 174 id. 125; Boske v. Comingore, 177 id. 459;
     Gableman v.  P., D.  &  E.  Ry.,  179  id.  335.  For  cases
     affecting corporations  created by  the United States see N.
     P. R.  v. Amato, 144 U.S.  465; T. & P. Ry. v. Cody, 166 id.
     606.

(10) U.S. v. Ortega, 11 Wheat. 467; Blyew v. U.S. , 13 Wall. 581.

(11) In re Garnett, 141 U.S.  1, 14.

(12) The  St. Lawrence, I B]. 522, 6, 7; The Lottawanna, 21 Wall.
     558, 575.

(13) The Genesee Chief i,,. Fitzhugh, 12 How. 443, 452.

(14) In  re Garnett,  141 U.  S. 1;  Workman v. New York, 179 id.
     552.

(15) Rev.  Stat. Secs. 4283 and 4289; Lord v. G.N.&P.S.S.Co., 102
     U.S.  541.

(16) Act  of 19th June, 1886; 24 Stat. 80, 81; In re Garnett, 141
     TJ. S. 1.

(17) The  Belfast, 7 Wall. 624; Moran v. Sttirges, 154 U.S.  256;
     The Roanoke, 189 id. 185; The R. W. Parsons, 191 id. 17.

(18) The Moses Taylor, 4 Wall. 411.

(19) The Hine v. Trevor, 4 Wall. 555.

(20)   Edwards v.  Elliott, 21  Wall- 532;  The Lottawanna, ibid.
     558; The Kate, 164 U.S.  458; rhe R. W. Parsons, 191 id. 17.

(21) Higgins  v. Butcher,  Yelv. 89;  Ex parte  Gordon, 104 U.S. 
     515.

(22) S.  Co. v. Chase, 16 Wall. 522; Sherlock v. Alling, 93 U.S. 
     99; Butler v. B. & S. S. Co., 130 id. 527.

(23) Ex  parte Gordon,  104 U.  S. 515; Ex parte Perry Co., ibid.
     519.

(24) Ry. Co. v. Whitton, 13 Wall. 270.

(25) The  Genesee Chief  u. Fitzhugh,  12  How.  443;  Hobart  v.
     Drogan, 10  Pet. 108; Waring v. Clarke, 5 How. 441; N. J. N.
     Co. v.  Merchants' Bank,  6 id.  344; Fretz  v. Ball, 12 id.
     466; Allen  v. Newberry,  21 id. 244; Maguire v. Card, ibid.
     248; The  St. Lawrence, 1 Bl. 522; The Moses Taylor, 4 Wall.
     411; The  Hinev. Trevor,  ibid. 555; The Belfast, 7 id. 624;
     The Eagle,  8 id.  15; The  Daniel Ball,  10  id.  557;  The
     MonteHo, 20  id. 430;  Butler v.  B. &  S. S. Co., 130 U.S. 
     527; Belden v. Chase, 150 id. 674; Moran v. Sturges, 154 id.
     256; P.  R. v.  N-apier S.  Co., 166 id. 280; The Glide, 167
     id. 606;  Workman v.  New York,  179  id.  552;  The  R.  W.
     Parsons, 191 id. 17.

(26)   McElrath v.  U.S., 102  U.S. 426; Schellinger v. U.S., 155
     id. 163; Belknap v. Schild, 161 id, 10; Stanley v. Schwalby,
     162 id.  255; Ainsa v. U.S., 184 id. 639; Bigby v. U.S., 188
     id. 400. See also 24 Stat. 505, c. 359.

(27) U.  S. v.  North Carolina, 136 U.S. 211.  U.S.  v. Michigan,
     190 id.379.

(28) Wheat. 378.

(29) 92 U.S.  10, 18.

(30) See  also Payne v. Hook, 7 Wall. 425; Hyde v. Stone, 20 How.
     170, 175;  Ry. Co.  v. Whitton, 13 Wall. 2'70, 287; Boom Co-
     v. Patterson,  98 LT. S. 403; Dennick v. R. Co., 103 id. 11;
     Ex parte  Boyd, 105 id. 647; Koenigsberger v. R. S. Al. Co.,
     158 id. 41; St. L. & S. F. Ry. v. James, 161 id. 545; St. J.
     & G.  1. R.  v. Steele,  167 id.  659. The  law  applied  in
     controversies  between   citizens  of  different  states  is
     discussed by  Professor Pepperin  "Borderland of Federal and
     State IDecisions,  " and  infra, see. log. And see Bucher v.
     C. R.,  125 U.  S. 555;  Friedlander v. T. & P. Ry., 130 id.
     416; Clark  v. Bever,  139 id.  96; Scott  v. Neely, 140 id.
     106; Cross  v. Allen,  141 id.  528; Ellenwood v. M. C. Co.,
     158 id.  1005; H.  P. T. Co. v. C., M. & St. P. Ry., 175 id.
     91; Dooley v. Pease, 180 id. 1 26; W. U. T. Co.v. C. P. Co.,
     181 id. 92.

(31) Barney  v. Baltimore, 6 Wall. 280; Cameron v. Hodges, 127 U.
     S. 322;  Koenigsberger v.  R. S. M. Co., l@8 id. 41; Hooe v.
     Jamieson, 166 id. 395.

(32) P.  T. C. Co. v. Alabama, 155 U.S.  482; Arkansas v. K. & T.
     C. Co.,  183 id.  185; cf. M., K. & T. Ry. v. MFassouri R. &
     W. Comrs., ibid. 53.

(33) Fouvergne v. New Orleans, 198 How. 470; Byers v. McAWey, 149
     U.S.   608; Clarke  v. Clarke,  178 id.  1865; cf.  Clark v.
     Bever, 139  id. 96;  Hayes v.  Pratt, 147  id. 557. See also
     Elleiinwood v.  M. C.  Co., 158  id. 105; S. T. Co. v. D. R.
     Nat. Bank, 187 id. 211.

(34) Barber v. Barber, 21 How. 582

(35) New  Jersey v.  New  York,  5  Pet.  284;  Rhode  Island  v.
     Massachusetts, 12  id. 657,  724; Missouri  -v. Iowa, 7 How.
     660; Florida  v. Georgia, 11 id. 293, 17 id. 478; Alabama v.
     Georgia, 23 id. 505; Virginia v. West Virginia, 11 Wall. 39;
     Indiana v. Kentucky, 136 U.S.  479; Nebraskav. Iowa, 145 id.
     51'9; Iowa  u,. Illinois,  147 id. 1; Virginia v. Tennessee,
     148 id. 503; Tennessee v. Virginia, 177 id. 501.

(36) New York v. Connecticut, 4 Dall. 1.

(37) South Carolina v. Geor a, 93 S. 4.

(38) Wisconsin v. Duluth, 96 U.S.  379.

(39) New  Hampshire v.  Louisiana, 108 U.S.  76; ef. South Dakota
     v. North Carolina, 192 id. 2S6.

(40) Wisconsin v. P. 1. Co., 127 U.S.  265.

(41) Louisiana v. Texas, 176 U.S.  1, 17, 18.

(42) Missouri  v. Illinois,  180 U.  S. 208;  Fuller, C.  J., and
     Harlan and White, JJ., dissented.

(43) Kansas v. Colorado, 185 U.S.  125.

(44) South  Dakota v.  North Carolina,  192 U.S.  286; White, J.,
     Fuller, C. J., and McKenna and Dav, JJ., dissented.

(45) Minnesota v. Hitchcock, 185 U.S.  373. See U.S. v. Michigan,
     190 id. 396.

(46) Kentucky v. Dennison, 24 How. 66.

(47) The Cherokee Nation v. Georgia, 5 Pet. 1.

(48) Texas v. White, 7 Wall. 700.

(49) Wisconsin v. P. I. Co., 127 U.S.  265.

(50) California  v. S.P.Co. 157 U.S. 229; Minnesota v. N. S. Co.,
     184 id. 199.

(51) 2 Dall. 419.

(52) Cohens v. Vir@a, 6 Wheat. 406.

(53) Infra, Section 115.

(54) Infra, Section 102.

(55) Rev.  Stat., sees.  753, 761; In re @Neagle, 135 U.S.  1; In
     re Loney,  134 id. 372; Medley, Petitioner, ibid. 160; In re
     Frederich, 149  id. 70;  Ohic) v. Thomas, 173 id. 276; Boske
     v. Comingore,  177 id. 459; ef. Storti v. Massachusetts, 183
     id. l@iS.

(56) Lawler 7:. Walker, 14 How. 149; Osborn v. Bank of the United
     States,9 Wheat.  738, 823;  Mills v.  Brown, 16 Pet. 525; R.
     Co. v.  Rock, 4  Wall.  :L77,  180;  Tennessee  v.  Union  &
     Planters' Bank,  152 U.  S. 454; Chappell v. Waterworth, 155
     id. 102 ; P. T. C. Co. v. Alabama, ibid. 482;E. L. L. Co. v.
     Brown, ibid.  488; Say-Nvard  v. Denny, 158 id. 180; H. & T.
     C. R.  v. Texas,  177 id.  66; W. U. T. Co- v. A. A. R., 178
     i(l. 239; ef. K. W. P. Co- v. G. B. Co., 142 id. 254.

(57) Dred  Scott v.  Sandford, 19  How. 393;  Bingham v. Cabot, 3
     Dall. 382;  Capron v.  Van N@den,  2 Cr.  126; Breithaupt v.
     Bank of  Georgia, I  Pet. 238;  Brown v.  KeerLe, 8 id. 112,
     115; Hornthall  v. The  Collector, 9  Wall. 560;  Godfrey v.
     Terry, 97 U.S.  171; Robertson v. Cease, ibid. 646; Grace v.
     A. C.  I. Co.,  109 id. 278, 283; Camerou v. Hodges, 127 id.
     322; Chapman v. Barney, 129 id. 677; Stevens v. Nichols, 130
     id. 230; Timmons v. E. L. Co., 139 id. 378; Denny v. Pironi,
     141 id.  121; Mattingly  v. N. W. v. R., 15S id. 53; 1. C. &
     1. Co.  v. Gibney, 160 id. 217; St. L. & S. F. Ry. v. James,
     161 id. 545; Benjamin v. New Orleans, 169 id. 161.

(58) Montalet v. Murray, 4 Cr. 46.

(59) Jones  v. Andrews,  10 Wall. 327; Godfrey v. Terry, 97 U.S. 
     171; Rolbertson  v. Cease,  ibid. 646.  See also Arbuckle v.
     Blackburn, 191 id. 405; Minnesota v. N. S. Co., 194 id. 48.

(60) Wickliffe v. Owings, 17 How. 47.

(61) 0.  & M.  R. v. Wheeler, I Bl. 286; B. & 0. R. v. Harris, 12
     WaU- 65;  Ry. Co. v. Whitton, 13 id. 270; Mulier v. Dows, 94
     U.S.   444; St.  L. & @. F. Ry. v. James, 161 id. 545; Blake
     v. McClung, 172 id. 239; S. Ry. v. Allisou, 190 id. 326; cf.
     St.J. & G.I.R.v. Steele, 167 id. 659.

(62) Act 13th Aug.,1888, sec. 4, 25 Stat. 433.

(63) Ibid., see. 1.

(64) Ibid., see. 1.

(65) Ibid., sec. 1.

(66) U.S.  v. Hudson, 7 Cr. 32; U. .9. v. Coolidge, 1 Wheat. 415;
     Bush v.  Kentucky, 107  U.S.   110; Jones  v. U.S. , 137 id.
     202, 211. But see Tennessee v. Davis, 100 id. 257.

(67) U.S.  v. Fox., 95 U.S.  670.

(68) U.S.  v. Bevans, 3 Wheat. 336.

(69) U.S.  v. Dewitt, 9 Wall. 41.

(70) U.S.  v. Fox, 95 U.S.  670.

(71) U.  S. v.  Reese, 92  U.S.  214; TT. S. v. Cruikshank, ibid.
     542.

(72) 4 Wheat. 193.

(73) See  also   Houston  v.   Moore,  5   Wheat.  1;  Gilman  v.
     Philadelphia, 3 Wall. 713, 730.

(74) 1 Wheat. 304.

(75) 4  Wall.  411.  See  als4)  Cohens  v.  Virginia,  6  Wheat.
     314,315,325; Slocum v. Mayberry, 2 id. 9; Gelston v. Hoyt, 3
     id. 246; Waring v. Clarke, 5 How. 451; G., C. & S. F. Ry- v.
     Hefley, 158  U.S.   98. Sed.  cf. Story's Commentaries, see.
     1672, note 4.

(76) In  Claflin v. Houseman, 93 U.S. 130, Bradley, J., said, the
     general principle  is,  "that,  where  jurisdiction  may  be
     conferred on  the United  States  courts,  it  may  be  made
     exclusive where  not so  by the Constitution itself; but, if
     exclusive jurisdiction  be neither  express nor implied, the
     state courts have concurrent jurisdiction whenever, by their
     own  constitution,  they  are  competent  to  take  it."  In
     Robertson v.  Baldwin, 165  U.S.   275, Brown, J., said that
     the  judicial  power  which  the  Constitution  intended  to
     eonfine to  courts created  by Congress "extends only to the
     trial and  determination of 'cases' in courts of record, and
     Congress is  still at  liberty  to  authorize  the  judicial
     officers of  the several states to exercise such power as is
     ordinarily given  to officers of courts not of record; such,
     for instance, as the power to take affidavits, to arrest and
     commit for  trial offenders  against the  laws of the United
     States, to  naturalize aliens,  and to  perform  such  other
     duties as  may   be regarded  as incidental  to the judicial
     power rather than a part of the  judicial power itself."

(77) Martin v. Hunter's Lessee, 1 Wheat. 304, 331, 333; The Moses
     Taylor, 4 Wall. 411, 429.

(78) Rev. Stat., see. 711.

(79) Act 3d Mar., 1891, c. 517, see. 4, 26 Stat. 826.

(80) Act 3d Mar., 1891, c. 517, 26 Stat. 826.

(81) 7 Or. 32.

(82) Marbury v. Madison, I Cr. 137.

(83( 11 Wheat. 467.

(84) 111 U.S.  252.

(85) Rev. Stat., see. 687. @e also Ames v. Kansas, Ill U.S.  449;
     P. T. C.

(86) Co.  v. Alabama, 155 id. 48 But see Curtis's Jurisdiction of
     the Courts of the U.S. , p. 10.

(87) U.S.  v. Peters, 3 Dall. 121.

(88) Hayburn Is Case, 2 Dal-1. 409.

(89) Rev. Stat., sec. 688.

(90) See Act 3d Mar., 1891_ c. 517, 26 Stat. 826.

(91) Act 13th Aug., 1888, @. 866, 25 Stat. 433.

(92) Rev. Stat., see. 629.

(93) Rev.  Stat., see.  629; Act  3d Mar., 1897, c. 395, 29 Stat.
     695.

(94) Rev.  Stat., see.  629; Act  6th Tan.,  1897, c. 4, 29 Stat.
     481.

(95) Act 3d Mar., 1881, c. 138, 21 Stat. 502.

(96) Act  13th Aug., 1888, c. 866, see. 4, 25 Stat. 436, amending
     Rev. Stat., w. 629.

(97) Rev. Stat., see. 629.

(98) Act 2d July, 1890, 'c. 647, 26 Stat. 209.

(99) Acts  4th Feb., 1887, c.104, sec.16, 24 Stat. 384; 2d March,
     1889, c. 382,  See. 5, 25 Stat. 855.

(100) Under  see. 15  of the  Act of  10th June, 1890, c. 407Y 26
     Stat. 131.

(101) Act 3d Mar., 1887, c. 359, see. 2, 24 Stat. 505.

(102) Act 13th Aug., 1888, c. 866, 25 Stat. 433.

(103) Rev. Stat., sec. 563.

(104) Act 3d Mar., 1887, c. 359, sec. 2, 24 Stat. 505.

(105) Rev. Stat., see. 1059 et seq.

(106) Wiscart  v. Dauchy, 3 Dall. 321; Durousseau v. U.S. , 6 Cr.
     307, 314;  The Francis  Wright, 105 U.S.  381; L. & G. W. S.
     Co. v. P. I. Co., 129 id. 397.

(107) Hayburn's  Case, 2  Dall. 409;  Hunt v.  Palao, 4 How. 589;
     MeNulty v.  Batty, 10  id. 72; U.S.  v. Ferreira, 13 id. 40;
     Gordon v.  U.S. , 2 W&U. 561. See also language of Taney, C.
     J., in appendix to 117 U.S. 

(108) Rev. Stat.,sec. 690 et seq.

(109) Rev.  Stat., see. 709. See al@ Cohens v. Virginia, 6 Wbeat.
     264; Worces  ter v.  Georgia, 6  Pet. 515;  Twitchell v. The
     Commonwealth, 7 Wall. 321; spies v. Illinois, 123 U.S.  131;
     Illurthe v.  Denis, 133  id. 514;  Missouri v. Andriano, 138
     id. 496;  Etheridge v.  Sperry, 1,19  id. 266;  Williams  v.
     Heard, 140  id. 529;  Metropolitan Bank v. Claggett, 141 id.
     520; Boyd  v. Nebraska,  143 id.  135; Roby v. Colehour, 146
     id. 153;  Sayward v.  Denny, 158  id. 180; C. & N. W. Ry. v.
     Chicago, 164  id. 454;  Dewey v.  Des Moines,  173  id.  193
     Scudder v.  Comptroller, 175 id. 32; Boske v. ComiBgore, 177
     id. 459;  Rothschild v. Knight, 184 id. 334; M. L. 1. Co. v.
     McGrew, 188 id. 291; @ooker v. Los Angeles, ibid. 314; N. M.
     B. &  L. Assn.  v. Brahan, 193 id. 635; ef. Moran v. Horsky,
     178 id. 205; Y. & M. v. Ry. v. Adams, 180 id. 1.

(110) De  Saussure v. Gaillard, 127 U.S.  216; Hale v. Akers, 132
     id. 554;  Hopkins v.  McLure, 133 id. 380; Beatty v. Benton,
     135 id. 244; Johnson v. Risk, 137 id. 300; Cook County v. C.
     & C.  C. & D. Co., 138 id. 635; Hammond v. Johnston, 142 id.
     73; Eustis  v. Bolles,  150 id.  361; R. R. v. C. v. R., 159
     id. 630;  Seneca Nation v. C@ty, 162 id. 283; Allen v. S. P.
     R., 173  id. 479; Beeberger v. McCormick, 175 id. 274; Moran
     v. Horsky,  178 id.  205; Hale v. Lewis, 181 id. 473; Howard
     v. Fleming,  191 id.  126. See  also Dreyer v. Illinois, 187
     id. 71.

(111) West  v. Aurora  City, 6  Wall. 139;  Philadelphia  v.  The
     Collector, 5  id. 720;  The  Mayor  v.  CmVer,  6  id.  247;
     Tennessee v. Davis, 100 U.S.  257; Removal Cases, ibid. 457;
     Ames v.  Kansas, Ill  id. 449; Young v. Parker, 132 id. 267;
     Bock L,.  Perkins, 139  id. 628; Marshall v. Holmes, 141 id.
     589; Martin  v. B.  & 0.  R., 151.  id.  673  cf.  Brown  v.
     Trousdale, 138 id. 389; Bellaire v. B. & 0. R., 146 id. 117;
     Chappell v.  Waterworth, 155 id. 102; E. L. L. Co. v. Brown,
     ibid. 488; Arkansas v. K. & T. C. Co., 183 id. 185.

(112) In  re Loney, 134 U.S.  372; Medley, Petitioner, ibid. 160;
     In re  Neagle, 135  id. 1; In re Frederich, 149 id. 70; Ohio
     v. Thomas, 173 id. 276; Booke v. Comingore, 177 id. 459; ef.
     Storti v. Mamachusetts, 183 id. 138. But ordinarily the writ
     issues  only   when  the   court  under  whose  warrant  the
     petitioner is  held is  without juristliction. In re Duncan,
     139 U.  S. 449;  Wbitten v. Tomlinson, 160 id. 231; Crossley
     v. California,  168 id.  640; Baker  v. Grice,  169 id. 284;
     Tinsley v.  Anderson, 171  id. 101;  Harkraderv. Wadley, 172
     id. 148;  Markuson v.  Boucher, 175 id. 184; Davis v. Burke,
     179 id. 399; Minnesota v. Brundage, 180 id. 499. See also U.
     S. v.  Sing Tuck,  194 id. 161; ef. Ex parte Rovall, 117 id.
     241, 252; New York v. Eno, 155 id. 89;

(113) Act 3d Mar., 1891, c. 517, see. 4, 26 Stat. 826.

(114) Ibid., we. 5.

(115) lbi&, sec. 6.

(116) Act 3d Mar., 1891, c. :517, see. 5, ut supra.

(117) Rev. Stat., sec. 709.

(118) Act 13th Aug., 1888, c. 866, 25 Stat. 433.

(119) Ibid.

(120) Osborn  v. Bank  of the  U.S. ,  9 Wlheat-  738; Cobens  v.
     Virginia, 6  id. 379; Ul)shur County v. Rich, 135 U.S.  467;
     L. A. S. M. Co. v. U.S. , 175 id. 423; Lampasas v. Bell, 180
     id. 276.

(121) Mills  v. Green, 159 U.S. 651; N.O.F. Inspectors v. Glover,
     160 id.  170; Tyler  v. Judges of Court of Registration, 179
     id. 404;  Codlin v.  Kohlhausen, 181  id.  151;  Tilrpin  v.
     Lemon, 187  id. 51;  Chadwick v. Ke]Iey, ibid. 540; Smith v.
     Indiana, 191 id. 138.

(122) A. B. Co. v. Kansas, 193 tT. S. 49.

(123) Luther v. Borden, 7 How. 1, 147.

(124) Rose  v. Himely,  4 Cr. 241, 272; Goiston v. Hoyt, 3 Wheat.
     246, 324;  Kennett v,  Chambers, 14  How. 38;  Terlinden  v.
     Ames, 184 id. 270.

(125) Jones  v. U.  S., 13i U.S. 202; In re Cooper, 143 U.S. 472,
     503; cf. U.S. v. Texas, ibid. 621.

(126) The Cherokee Nation v. Georgia, 5 Pet. 1, 20.

(127) Mississippi  v. Johnson, 4 Wall. 475; Georgia v. Stanton, 6
     id. 50.  See, however,  dicta in Cruickshank v. Bidwell, 176
     U.S. 73, and cases there cited.

(128) Luther v. Borden, 7 How. 1.

(129) Texas v. White, 7 Wall. 700.

(130) Marbury v. Madison, 1 Cr. 137.

(131) Kendall  v. U.S.,  12 Pet.,521. See also Noble v. U.R.L.R.,
     147 U.S.  165; Decatur  v. Paulding,  14 Pet.  497; U.S.  v.
     Schurz, 102  U.S.  378; Butterworth v. Hoe, 112 id. 50; U.S.
     v. Black, 128 id. 40, 50; U.S. v. Windom, 137 id. 636; U.S. 
     v. Blaine,  139 id.  306; New Orleans v. Paine, 147 id. 261;
     Roberts v.  U.S. ,  176 id. 221; De Lima v. Bidwell, 182 id.
     1; Fok  Yung Yo  v. U.S.,  185 id.  296; A.  S. of  M. H. v.
     MeAnnulty, 187 id. 94.

     In  the  courts  of  the  United  States,  laws  of  foreign
     countries may  be proved  as facts, C. & A. R. v. W. F. Co.,
     119 U.  S. 615, 622; L. & G. W. S. Co. v. P. 1. Co., 129 id.
     397, 445;  Talbot v.  Seeman, 1  Cr. 1; Church v. Hubbart, 2
     id. 187;  Strother v. Luetts, 6 Pet. 763; Armstrong v. Lear,
     8 id.  52, by  official publications thereof, satisfactorily
     certified, Ennis v. Smith, 14 How. 400, or by written copies
     thereof attested  by the  oath of  a United  States  consul,
     Church v.  Hubbart, 2 Cr. 187. Unwritten foreign laws may be
     proved by the testimony of experts, Livingston v. M. I. Co.,
     6 Cr.  274; Ennis  v. Smith, 14 How. 400; Pierce v. Indseth,
     106 U.  S. 546. The courts of the United States take notice,
     without proof, of the laws of the several states, C. & A. R.
     v. W.  P. Co.,  119 U.  S. 615,  622; Owings v. Hull, 9 Pet.
     607,  andof   the  laws   governing  territory  subsequently
     acquired by  the United States, U.S. v. Perot, 98 U.S.  428;
     Fremont v.  U.S. ,  17 How. 542, 557. But the  Supreme Court
     of the  United States,  in the  exercise  of  its  appellate
     jurisdiction, does  not take  judicial notice of the laws of
     foreign countries,  nor of the laws of the several states of
     the United States, if such laws have not been found as facts
     in the courts of the first instance, Hanley v. Donoghue, 116
     U.S.1; C. & A. R. v. W. F. Co., 119 U.S.  615, 623.

(132) Marbury v. Madison, 1 Cr. 137.

(133) Dred Scott v. Sandford, 19 How. 393.

(134) Marbury v. Madison, I Cr. 137; Norton v. Shelby County, 118
     U.S.  425.

(135) Fletcher  v. Peck,  6 Cr.  87; Legal Tender cases, 12 Wall.
     531; U.  S. v.  Harris, 106 U.S. 629; U.S. v. G. E. Ry., 160
     id. 668;  Brown v.  Walker, 161  id. 591; Nicol v. Ames, 173
     id. 509;  H. & T. C. R. v. Texas, 177 id. 66; Fairbank v. U.
     S., 181  id. 283;  Booth v.  Illinois, 184  id. 425; Reid v.
     Colorado, 187  id. 137; The Japanese Immigrant Case, 189 id.
     86, 101; Buttfield v. Stranahan, 192 id. 470.

(136) Packet  Co. v.  Keokuk, 95  U.S.  80; Pollock v. F. L. & T.
     Co., 158 id. 601; cf. Presser v. Illinois, 116 id. 252.

(137) Trade-Mark Cases, 100 U.S.  82; Allen v. Louisiana, 103 id.
     80; U.S.  v. Harris, 106 id. 629; Virginia Coupon Cases, 114
     id. 269;  Spraigue v.  Thompson,  118  id.  90;  Baldwin  v.
     Franks, 120 id. 678; Pollock v. F. L. & T. Co., 158 id. 601;
     cf. Connolly v. U.S.  P. Co., 184 id. 540.

(138) Commonwealth  v. Catom,  4 Call,  Virginia Reports,  5, per
     Wythe, J.;  Holmes v. Walton, cited in State v. Parkhurst, 9
     N. J.  L. 427, 444; Trevett v. Weeden, 2 Arnold's History of
     Rhode Island,  525; Bayard  v. Singleton.  1  Martin,  North
     Carolina Reports,  42; Bowman  v. Middleton,  1  Bay,  South
     Carolina Reports,  252; Cooley's Constitutional Limitations,
     55.

(139) Federalist,  No. 78,  9 Hamilton Is Works, Lodge's Edition,
     pp. 482, 484.

(140) Marbury  v. Madison,  1 Cr.  137. See  also the language of
     Taney,, C. J., quoted in the,appendix to 117 U.S. 

(141) Juilliard  v. Greenman,  110 U.S.  421; Gibbons v. Ogden, 9
     Wheat. 1; Martin v. Hunter's Lessee, 1 Wheat. 304.

(142) Rhode  Island v.  Massachusetts, T  2 Pet.  657; Maxwell v.
     Dow, 176 U.S.  581, 602.

(143) Stuart  v. Laird,  1 Or.  299; Briscoe  v. The  Bank of the
     Commonwealth of  Kentucky, 11  Pet. 257,  317; C.  M. Co. v.
     Ferguson, 113  U.S.   727. See  also Downes, v. Bidwell, 182
     id. 244.

(144) Gibbons v. Ogden, 9 Wheat. 1. I

(145) Sturges v. Crowninshield, 4 Wheat. 122. Story, J., said, in
     Prigg v.  Penna., 16  Pet. 610, "Perhaps, the safest rule of
     interpretation after  all will be found to be to look to the
     nature and  objects of  the particular  powers, duties,  and
     rights,  with  all  the  lights  and  aids  of  contemporary
     history; and  to  give  to  the  words  of  each  just  such
     operation  and   force,  consistent  with  their  legitimate
     meaning, as may fairly secure and attain the ends proposed."

(146)  Gibbons   v.  Ogden,   9  Wheat.   1;  Rhode   Tsland   v.
     Massachusetts, 12  Pet. 657;  Brown v.  Maryland, 12  Wheat.
     438.

(147) In  Schick v.  U.S. ,  195 U.  S. 65,  Brewer, J., said, in
     reference to  a clause  of Article  III, "It must be read in
     the light  of the  common  law.  'That,'  said  Mr.  Justice
     Bradley, in  Moore v. U.S. , 91 U.S.  270, 274, referring to
     the common law, 'is the system from which our judicial ideas
     and legal  definitions are  derived.  The  language  of  the
     Constitution and  of many  acts of  Congress  could  not  be
     understood without  reference to  the common law.' Again, in
     Smith v. Alabama, 124 U.S.  465, 478, is this declaration by
     Mr.   Justice   Matthews:   'The   interpretation   of   the
     Constitution of  the United States is necessarily influenced
     by the  fact that  its provisions are framed in the language
     of the  English common  law, and are to be read in the light
     of its  history.' In  U.S.   v. Wong Kim Ark, 169 U.S.  649,
     654, Mr.  Justice Gray  used this  language: 'In this, as in
     other respects,  it must  be interpreted in the light of the
     common  law,  the  principles  and  history  of  which  were
     familiarly known  to  the  framers  of  the  Constitution.'"
     Duncan, J.,  said in  Lyle v.  Richards, 9  S.&R.  356,  "In
     American legislation,  when a  term of  the  common  law  is
     adopted,  the   common-law  meaning  is  adopted  with  it."
     Marshall, C.  J., said  in U.  S. v.  Burr, 4  Cr.  470,  in
     commenting on the phrase "levying war" in the constitutional
     definition of  treason, "It  is a technical term; it is used
     in a very old statute in that country, whose language is our
     language, and whose laws form the substratum of our laws. It
     is hardly  conceivable that the term was not employed by the
     framers of  our Constitution  in the  sense which  has  been
     affixed to  it by  those from whom we borrowed it. So far as
     the meaning  of any  terms, particularly  terms of  art,  is
     completely ascertained, those by whom they are employed must
     be considered as employing them in that ascertained meaning,
     unless the contrary be proved by the context."

(148) 6  Wheat. 418. Bee Sir HenLry Maine's "Popular Government,"
     p.  202,   for  references   to  foreign   eulogies   of,the
     Federalist.

(149) U.S.  v. U. P. E., 91 U.S.  72, 79.

(150) McCulloch v. Maryland, 4 Wheat. 316, 404.

(151) The  view as  stated in  the text was forcibly put by R. C.
     McMurtrie,  Esq.,   in  his   "Observations  on  Mr.  George
     Bancroft's Plea  for the  Constitution, II  p. 8 et seq. See
     also Maxwell v. Dow, 176 U.S.  581, 601.

(152) Henderson  t,. N.  Y., 92  U.S.   259, 260;  Boon  Hing  v.
     Crowley, 113  iA. 703,  710; Mugler  v. Kansas, 123 id. 623,
     661; Minnesota v. Barber, 136 id. 313, 320.

(153) Knatchbull  v. Hallett.  13 Ch. Div. 712; Ginegi v. Cooper,
     14 id. 601; Ogden v. Saunders, 12 Wheat. 333.

(154) Geofroy  v. Riggs,  133 U.  S. 258, 267; Thomas v. Gay, 169
     id. 264, 271. (155) U.S.  v. Forty-three Gallons of Whiskey,
     93 U.  S. 188;  Hauenstein v. Lynham, 100 id. 483; Butler v.
     B. &  S. S.  Co., 130 id. 527; G., C. & S. F. Ry. v. Hefley,
     158 id. 98; Ohio v. Thomas, 173 id. 276; Boske v. Comingore,
     177 id. 459; Easton v. Iowa, 188 id. 220.

(156) U.  S. v.  Schooner Peggy,  1 Cr. 103; Foster v. Neilson, 2
     Pet. 253,  314; The  Cherokee Tobacco,  11 Wall.  616;  Head
     Money Cases,  112 U.  S. 580;  Whitney v. Robertson, 124 id.
     190;  Botiller  v.  Dominguez,  130  id.  238;  The  Chinese
     Exclusion Case,  ibid. 581;  Horner v.  U.S. ,  143 id. 570;
     Pong Yue Ting v. U.S. , 149 id. 698; Wong Wing v. U.S. , 163
     id. 228;  De Lima  v. Bidwell,  182 id. 1. See also U.S.  v.
     Lee Yen Tai, 185 id. 213.

(157) Chirac  v. Chirac,  2 Wheat.  259; Hughes v. Edwards, 9 id.
     489, 496;  Carneal v.  Banks,  10  id.  181;  Hauenstein  v.
     Lynham, 100  U.S.  483. But see Baldwin v. Franks, 120 U.S. 
     678.

(158) Dana's Wheaton's International Law, 36.

(159) Art. 11, Section 2, of the Constitution requires the advice
     and consent of the Senate, and the concurrence of two-thirds
     of the  Senators present, to the making of any treaty by the
     President.

(160) U.  S. v.  Arredondo, 6  Pet. 691,  749; Haver  v. Yaker, 9
     Wall. 32.

(161)  Prevest  v.  Greueaux,  1  9  How.  1  ;  Frederickson  v.
     Louisiana, 23 id. 445.

(162) Chinese Exclusion Case, 130 U.S.  581.

(163) U.  S. v.  Hudson, 7  Cr. 32;  U.S.  t,. Coolidge, 1 Wheat.
     415; Penna.  v. W.  & B.  Bridge, 13  How. 519.  The  United
     States have  no common  law Wheaton  v. Peters,  8 Pet. 591;
     Smith v.  Alabama, 124 U.S.  465, 478; W. U. T. Co. v. C. P.
     Co., 181 U.S.  92, 101.

(164) Polk's Lessee v. Wendell, 9 Cr. 87. Johnson, J., said: "The
     sole object for whieh jurisdiction of cases between citizens
     of different  states is  vested in  the courts of the United
     States is  to secure  to all  the administration  of justice
     upon the  same principles  upon  which  it  is  administered
     between citizens  of the  same state.  The Court, in a later
     and  unanimous  judgment,  speaking  by  Bradley,  J.,  said
     (Burgess v. Seligman, 107 U.S.  20, 34): "The very object of
     giving to the national courts jurisdiction to administer the
     laws of  the states  in controversies  between  citizens  of
     different states  was  to  institute  independent  tribunals
     which it  might be  supposed would  be unaffected  by  local
     prejudice and  sectional views."  This  broad  statement  is
     quoted with approval in the most recent case, G.S.F.R.Co. v.
     Jones, 193 U.S.  532, 544.

(165) Rev. Stat., see. 721.

(166) Webster  v. Cooper, 14 How. 488; Jackson v. Chew, 12 Wheat.
     153, 1167;  Townsend v.  Todd, 91 U.S.  452; H. F. I. CO. v.
     C., M.  & St.  P. Ry., 175 id. 91, 100; Dooley v. Pease, 180
     id. 126.

(167) Pease  v. Peck, 18 How. 595; Cross v. Allen, 141 U.S.  528;
     Burgess v.  Beligman, 107  id. 20,  33;  Carroll  County  v.
     Smith, 111 id. 556; S. T. Co. v. B. R. N. Bank, 187 id. 211.

(168) Swift v. Tyson, 16 Pet. 1.

(169) Town of Venice v. Murdock, 92 U.S.  494.

(170) Gelpeke  v. Dubuque, 1 Wall. 175; 0. L. & T. Co. v. Debolt,
     16 How. 416, 432; R. Co. v. Lockwood, 17 Wall. 357; Oates v.
     Nat. Bank,  100 U.  S. 239; R. Co. v. Nat. Bank, 102 id. 14,
     30, 3  1; Myrick  v. M.  C. R.,  107 id.  102, 109;  Pana v.
     Bowler, ibid.  529; Bolles  v. Brimfield, 120 id. 759; Clark
     v. Bever, 139 id. 96.

(171) This  subject is  ably  discussed  in  Mr.  George  Wharton
     Pepper's brilliant essay upon "The Borderland of Federal and
     State Decisions," 1887.

(172) Parsons  v. Bedford,  3 Pet.  433; Wheaton v. Peters, 8 id.
     591; Parish  v. Ellis,  16  id.  @;  Ex  parte  Bollman  and
     Swartwout, 4  Cr. 75; Cross v. Allen, 141 U.S.  528 ; Dooley
     v. Pease,  180 id.  l@-6; W. U. T. Co. v. C. P. Co., 181 id.
     92; cf.  Swift v.  Tyson, 16 Pet. 1; Bucher v. C. R., 125 U.
     S. 555;  L. & G. W. S. Co. v. P. 1. Co., 1,-)9 id. 397, 443;
     Clark v. Bever, 139 id. 96; T. & P. Ry. v. Cox, 145 id. 593;
     Ellenwood v.  M. C.  Co., 158  id. 1(15.  See  also  Pepper:
     "Bordlerland of Federal and State Decisions."

(173) Robinison v. Campbell, 3 Wheat. 222; Livingston v. Story, 9
     Pet. 632;  Pennsylvania v.  W. & B. Bridge Co., 13 How. 563;
     Holland v.  Challen, 110  U.S.   15; Ridings v. Johnson, 128
     id. 212;  Mi-issippi Mills  v. Cohn, 150 id. 202; Hollins v.
     B. C. & I. Co., ibid. 371; cf. Scottv. Neely, 140 id. 106.

(174) Edwards  v. Elliott,  21 Wall.  532; The  Lottawanna, ibid.
     558; Ry. Co. v. Whitton, 13 id. 27o; Ex parte Gordon, 104 U.
     S. 515; Ex parte Ferry Co. ibid. 519; Case v. Kelly, 133 id.
     21; Turner'v. Wilkes County Commissioners 173 id. 461; H. F.
     1. Co.  v. C.,  M. & St. P. RY., 175 id. 91; cf. Priedlander
     T. & P. Ry., 130 id. 416; C., M. & St. P. Ry. v. Solaia, 169
     id. 133.

(175) In re Garnett, :141 U.S.  1, 14; supra, see. 93.

(176) Ex parte Millisan, 4 WaR. 2.

(177) Wise  v. Withers,  3 Cr.  331; Houston v. Moore15 Wheat. 1;
     Martin v.  Mott, 12  id. 19; Dynes v. Hoover, 20 How. 65; Ex
     parte Mason,  105 U.  S. 696;  Keyes v.  U.S. , 109 id. 336;
     Wales v.  Whitney, 114  id. 564;  Johnson v.  Sayre, 158 id.
     109.

(178) Art. I, See. 2.

(179) Art. 1, Sec. 3.

(180) Art. II, Bee. 4.

(181) Art. II, See. 2.

(182) Art. III, Sec. 2.

(183) Art. 1, Bee. 9.

(184) Ex parte Milligam, 4 Wall. 2.

(185) Callan v. Wilson, 127 U.S.  540.

(186) In re Ross, 140 U.S.  453.

(187) Schick v. U S., 195 U.S.  65; Harlan, J., dissented. On the
     same clause,  see also  N.,C.& St.L.Ry.  v. Alabarm, 128 id.
     96; In re Debs, 158 id. 564, 581.

(188) Boyd  v. U.  S., 116 U.S.  616. See also Adams v. New York,
     192 id. 585, for a discussion of the Amendment.

(189) The  V Amendment is a restraint upon the exercise of powers
     by the  United States,  but not  by the  states:  Barron  v.
     Baltimore, 7  Pet. 243;  Withers v.  Buckley,  20  How.  84;
     Davidson v.  New Orleans,  96 U.S.  97; Kelly v. Pittsburgh,
     104 id. 78; Thorington v. Montgomery, 147 id. 490; C.C.D.Co.
     v. Ohio,  183 id. 238; Ohio v. Dollison, 194 id. 445; nor by
     an Indian tribe: Talton v. Mayes, 163 id. 376.

(190) Ex  parte Wilson,  114 U.  S. 417; Mackin v. U.S. , 117 ia.
     348; Parkinson  v. U.S. , 121 id. 281; U.S.  v. De Walt, 128
     id. 393.

(191) Ex parte Wall, 107 U.S.  265.

(192) Johnson v. Sayre, 158 U.S.  109.

(193) Ex parte Bain, 1 21 U.S.  1.

(194) 18 How. 272, 276.

(195) 2 Inst. 50.

(196) In  Holden v.  Hardy, 169 U.S.  366, 385, which arose under
     the XIV  Amendment, Brown, J., while quoting the language of
     Curtis, J.,  said  that  the  court  "  bas  not  failed  to
     recognize the  fact that  the law is, to a certain extent, a
     progressive science;  that in  some of the states methods of
     procedure, which  at the  time the  Constitution was adopted
     were deemed  essential to  the protection  and safety of the
     people, or to the liberty of the citizen, have been found to
     be no  longer necessary  .... The  whole fabric  of  special
     pleading, once thought to be necessary to the elimination of
     the real  issue between  the parties, has crumbled to pieces
     .... Witnesses  are  no  longer  incompetent  by  reason  of
     interest, even  though they  be parties  to the  litigation.
     Indictments have  been simplified, and an indictment for the
     most serious  of crimes  is now  the sidapiest  of  all.  In
     several of  the  states  grand  juries,  formerly  the  only
     safeguard against a malicious prosecution, have been largely
     abolished, and  in others  the rule  of unanimity, so far as
     applied to  civil cases, has given away to verdicts rendered
     by a  three-fourths majority. This case does not call for an
     expression of  opinion as to the wisdom of these changes, or
     their validity  under the  XIV  Amendment  ....    They  are
     mentioned only  for the  purpose of calling attention to the
     probability that  other changes of no less importance may be
     made in  the future,  and that while the cardinal principles
     of justice  are immutable,  the methods  by which justice is
     administered are  subject to  constant fluctuation, and that
     the Constitution  of the United States, which is necessarily
     and to  a large  extent inflexible and exceedingly difficult
     of amendment,  should not  be so construed as to deprive the
     states of  the power  to so amend their laws as to make them
     conform to  the wishes of the citizens as they may seem best
     for the  public welfare  without bringing them into conflict
     with  the  supreme  law  of  the  land.  Of  course,  it  is
     impossible to  forecast the  character or  extent  of  these
     changes, but  in view  of the  fact that  from the day Magna
     Carta was  signed to  the present  moment, amendments to the
     structure  of   the  law  have  been  made  with  increasing
     frequency, it  is impossible  to suppose  that they will not
     continue, and  the law  be forced  to adapt  itself  to  new
     conditions of society."

(197) Pennoyer v. Neff, 95 U.S.  714, 733.

(198) Ex parte Milligan, 4 Wall. 2.

(199) United States v. Hamilton, 3 Dall. 17; Ex parte Bollman and
     Swartwout, 4 Cr. 75; Ex parte Kearney, 7 Wheat. 38; Ex parte
     Wells, 18  How. 307; Ex parte Lange, 18 Wall. -t63; Ex parte
     Parks, 93 U.S.  18; Ex parte Yarbrough, 110 U.S.  651; U.S. 
     v. Waddell,  112 id.  76; Hans Nielsela, Petitioner, 131 id.
     176; In  re Swan,  150 id.  637; In re McKenzie, Petitioner,
     180 id. 536. See also Cosgrove v. Winney, 174 id. 64.

(200) Spring v. U.S., 102 U.S. 586. Murray's Leasee v. H. L. & 1.
     Co., 18 How. 272.

     The constitutional  requirement is  designed to  prevent the
     arbitrary exercise  of the  powers of  government. See  See.
     117,  infra.  In  trials  within  a  court  of  justice  the
     defendant must  be given  a hearing  before judgment  can be
     pronounced against  his property or against himself, and the
     rights which  are secured  to him by other provisions of the
     Constitution, such  as the  right to  trial by jury, must be
     held sacred. See See. 117, infra; cf. Ex parte Terry, 128 U.
     S. 289.  But the  requirement of due process of law does not
     of itself  control mere  forms of  procedure or  require the
     following of  any one  course of  action in  all cases;  the
     Amendment is  complied with if, in each case, a procedure be
     adopted wbich is appropriate to the end sought: Hanover Nat.
     Bank v.  Moyses, 186 U.S.  181. It is not necessary that the
     entire work  of government  be transacted in a courtroom, in
     the presence  of judge  and  jury.  Congress  may  grant  to
     executive officers the power to exclude or expel aliens: The
     Japanese Immigrant  Case, 189  U.S.   86; U.S.  v. Williams,
     194 id. 279; ef. Wong Wang v. U.S. , 163 id. 228; to exclude
     sub-standard proposed  imports: Buttfield  v. Stranahan, 192
     U.S.  470; and to refuse delivery of mail to persons seeking
     to defraud:  Public Clearing  House v. Coyne, 194 U.S.  497.
     Taxes and  assessments may  be levied,  and property  may be
     taken for  public  use,  by  special  commissions;  and  the
     Constitution is complied with when the taxpayer or property-
     owner is given an opportunity for a hearing at some stage of
     the proceedings:  Bauman v.  Ross, 167  U.S.  548; Wilson v.
     Lanibert, 168  id. 611;  Wight v.  Davidson, 181 id. 371. So
     also, Congress  may, in  the ordinary course of legislation,
     prohibit the  making of contracts in restraint of interstate
     commerce without  thereby  depriving  any  citizien  of  his
     liberty without due process of law: A. P. & S. Co. v. U.S. ,
     175 U.  S. 211.  And Congress  miay impose  an  excise  upon
     artificially coloured  oleo margarine,  although it does not
     tax butter  which is artificially coloured, and although the
     effect of  the tax  is to  suppress the  manufacture of such
     oleo margarine. McRay v. U.S. , 195 U.S.  27; Fuller, C. J.,
     Brown  and   Peckham,  JJ.,   dissenting.  On  congressional
     legislation, see also Mormon Church v. U.S. ' 136 U.S.  1.

(202) Per Holmes, J., Kepner v. U.S. , 195 U.S.  100, 134.

(203) U.S.  v. Perez, 9 Wheat. 579.

(204) Hopt  v. People,  104 U.S.  631, 635; Hopt v. Utah, 110 id.
     574; 114  id. 488, 492; 120 id. 430, 442; U.S.  v. Ball, 163
     id. 662, 672.

(205) Kepner  v. U.S.,  195 U.S. 100; Holmes, White, and McKenna,
     JJ., dissenting.

(206) Ex  parte Lange, 18 Wall. 163; cf. Callan v. Wilson, 127 U.
     S. 540, 557; Carter v. McClaughry, 183 id. 365.

(207) U.S.  v. Ball, 163 U.S.  662.

(208) Thompson  v.  U.S.,  155  U.S.  271.  See  also  Dreyer  v.
     Illinois, 187 id. 71.

(209) 9 161 U.S.  591.

(210) P. 605. Four justices dissented.

(211) Belknap v. Schild, 161 U.S.  10.

(212) M. N. Co. v. U.S. , 148 U.S.  312.

(213) Cherokee Nation v. S. H. Ry., 135 U.S.  641.

(214) Bauman v. Ross, 167 IT. S. 548.

(215) Scranton  v. Wheeler, 179 U.S. 141; Gibson v. U.S., 166 id.
     269; Bedford v. U.S. , 192 id. 217.

(216) U.  S. v.  Lynah, 188 U.S.  445; cf. Bedford 'V. U.S. , 192
     id. 217.

(217) Emblen v. L. L. Co., 1:84 U.S.  660.

(218) This  Amendment is  a restraint upon the judicial action of
     the United  States, and  not of the states: Twitchell v. The
     Commonwealth, 7 Wall. 321.

(219) U.  S. v.  Zueker, 161  U.S.  4:75; Ex parte Terry, 128 id.
     289; Fong  Yue Ting  v. U.  S., 149 id. 698; Wong Wing v. U.
     S., 163 id. 228; U.S.  v. Williams, 194 id. 279.

(220) Schick v. U.S. , 195 U.S.  65. Harlan, J., dissented.

(221) Cook  v. U.S.,  138 U.  S. 157.  See also Art. III, See. 2;
     supra, see. 111.

(222) Rosen v. U.S. , 161 U.S.  29.

(223) Revnolds v. U.S. , 98 U.S.  145.

(224) Mattox v. U.S. , 156 U.S.  237.

(225) Motes v. U.S. , 178 U.S.  458.

(226) Kirby v. U.S. , 174 U.S.  47.

(227) This  Amendment is  a restraint upon the exercise of powers
     by the  United States,  but not  by the  states: Edwards  v.
     Elliott, 21  Wall. 5252;  Walker v.  Sauvinet, 92  U.S.  90;
     Pearson v. Yewdall, 95 id. 294.

(228) Barton  v. Barbour,  104 U.  S. 126;  Paxsons v. Bedford, 3
     Pet. 433,  4 46.  But where  a plaintiff  has an appropriate
     remedy at  law he  cannot seek  relief in a court of equity:
     Whitehead v.  Shattuck, 138  U.S.   146; Cates v. Allen, 149
     id. 451.

(229) MeElrath v. U.S. , 102 U.S.  426.

(230) Guthrie Nat. Bank v. Guthrie, 173 U.S.  528.

(231) Bank of Columbia v. Okely, 4 Wheat. 235.

(232) Coughran v. Bigelow, 164 U.S.  301.

(233) A.  P. Co.  v. Fisher, 166 U. S- 464; SpringviUe v. Thomas,
     Salt Lake City v. Tucker, ibid. 707.

(234) 3 Pet. 447.

(235) C. T. Co. v. Hof, 174 U.S.  1.

(236) A. v. L. & C. Co. v. Mann, 130 U.S.  69.

(237) The  Justices v.  Murray, 9  Wall. 274;  C., B.  & Q. R. v.
     Chicago, 166 U.S.  226.

(238) Pervear  v.  The  Commonwealth,  5  Wall.  475;  O'Neil  v.
     Vermont, 144 U.S.  323.

(239) Wilkerson v. Utah, 99 U.S.  130.

(240) In re Kenunler, 136 U.S.  436.

(241) Pervear v. The Commonwealth, 5 Wall. 475.

(242) Howard v. Fleming, 191 U.S.  126.

(243) 2 Dall. 419.

(244) 3 Dall. 378.

(245) 9.Wheat. 738, 857.

(246) P. 858.

(247) P. 868.

(248) 16 Wall. 203.

(249) 108 U.S.  436, 447.

(250) Georgia v. Brailsford, 2 DaH. 4tO2; The Governor of Georgia
     v. Madrazo, 1 Pet. 110; Kentucky v. Dennitson, 24 How. 66.

(251) Hagood  v. Southern,  117 U.  S. 52; Governor of Georgia v.
     Madrazo, I  Pet. 110;  Louisiana v.  Junel, 107  U.S.   711;
     North Carolina  v. Temple,  134 id. 22; Louisiana v. Steele,
     ibid. 230. See also Chandler t,. Dix, 194 id. 590.

(252) Cunningham v. M. & B. R., 109 TJ. S. 446.

(253) Louisiana v. Jumel, 107 U.S.  711.

(254) New  Hampshire v.  Louisiana, New York v. Louisiana, 108 U.
     S. 76; South Dakota v. North Carolina, 192 id. 286.

(255) Ex  parte Madrazzo,  7 Pet. 627; The Governor of Georgia v.
     Madrazo, I Pet. 110.

(256) 123 U.S.  443.

(257) N.  C. v. Temple, 134 U.S.  22 ; Louisiana v. Steele,.ibid.
     230. And,  although it is not forbidden by tlne Amendment, a
     suit against  a state  cannot be  brought by  one of its own
     citizens, nor  by  a  corporation  created  by  the  federal
     government, even  when a  federal question is involved: Hans
     v. Louisiana, 134 U.S.  1; SmLth v. Reeves, 178 id. 436.

(258) Lincoln County v. Luning, 133 tv. S. 529.

(259) Cohens v. Virginia, 6 Wheat. 26-4.

(260) Fowler v. Lindsey, 3 Dall. 411.

(261) L.,  C. &  C. R. v. Letson, 2 How.- 497, 550; Bank of U.S. 
     v. Planters'  Bank, 9  Wheat. 904,  907; Bank of Kentucky v.
     Wister, 2  Pet. 318,  323; Briscoe  v. Bank  of Kentucky, 11
     Pet. 257, 324; Curran v. Arkansas, 15 How. 304, 309.

(262) 9 Wheat. 907.

(263) U.S.  v. Peters, 5 Cr. 1 15.

(264) Per  Bradley, J.,  in Board of Liquidation v. McComb, 92 U.
     S. 531, 54L.

(265) Per  Bradley, J.,  in Board of Liquidation v. McComb, 92 U.
     S. 541 Davis v. Gray, 16 Wall. 203; MeGahey v. Virginia, 135
     U.S.   662; Hans  v.  Louisiana,  134  id.  1;  Pennoyer  v.
     McConnaughy, 140 id. 1; Smyth v. Ames, 169 id. 466; Prout v.
     Starr, 188  id. 537; ef. Fitts v. McGhee, 172 id. 516; 1. C.
     R. v.  Adams, 180  id. 28.  In  Hans  v.  Louisiana,  supra,
     Bradley, J.,  said, p.  20: "  Although the obligations of a
     state reat  for their  performance upon its honou:r and good
     faith,  and   cannot  be  raade  the  subjects  of  judicial
     cognizance unless  the state  consents to  be sued, or comes
     itself into  court; yet where property or rights are enjoyed
     under a  grant or  contract made  by a  state,  they  cannot
     wantonly be invaded. Whilst the state cannot be compelled by
     suit to  perform its  contracts, any  attempt on its part to
     violate property or rights acquired under its contracts, may
     be judicially resisted; and any law impairing the obligation
     of contracts under which such property or rights are held is
     void and powerless to affect their enjoyment."

(266) Osborn v. The Bank of the United States, 9 Wheat. 738, 846.

(267) Board of Liquidation v. McComb, 92 U.S.  531.

(268) The  Virginia Coupon Cases, 114 U.S.  269, 284. Some of the
     cases were  actions of  trespass or  detinue; others of them
     were bills  in equity  for an  injunction. Bradley, J., with
     whom concurred  Waite, C.  J., and  Miller  and  Gray,  JJ.,
     dissented. Upon  a like  principle, it  has been  held  that
     officers of the United States being wrongfully in possession
     of land,  the fact  that they  held that  possession not for
     themselves but  for the government of the United States will
     not forbid  courts to  take  jurisdiction  of  the  rightful
     owner's action  to recover his land, nor prevent judgment in
     his favour,  if his  title be  made out:  Meigs v. McClung's
     Lessee, 9  Cr. 11;  Wilcox 1,,. Jackson, 13 Pet. 498; Grisar
     v. McDowell,  6 Wall.  363; Brown  v. Huger,  21  How.  305;
     United States v. Lee, 106 U.S.  196. In Mitchell v. Harmony,
     13 How.  115, and  in Bates v. Clark, 95 U.S.  204, the same
     rule was  applied in  actions of  trespass against  military
     olricers of  the United  States for  the wrongful seizure of
     certain personal property of the plaintiffs, in obedience to
     unlawful orders from a military superior.

(269) Clark u. Barnard, 108 T-T. S. 436.

(270) U.S.  v. Texas, 143 U.S.  621.

(271) Wayman v. Southard, 10 Wheat. 1; Bank of U.S.  v. Halstead,
     ibid. 51; Lincoln v. Power, 151 U.S.  436.

(272) Borer  v. Chapman,  119 tT.  S. 587;  Mississippi Mills  v.
     Cohn, 150 id. 202; Hollins v. B. C. & 1. Co., ibid. 371.

(273) 13 U.S.  v. Reid, 12 How. 361.

(274) Act  of 24th  September, 1789,  c. 20, see. 34, 1 Stat. 92;
     Rev. Stat.  sec. 721.  See Field's Federal (7-ourts, p. 430.
     The  general   principle  that  the  lex  fori  goverds  the
     limitation of  actions applies to actions brought originally
     in the  courts of  the United  States, and  also to  actions
     removed thereto  froni the  courts of  the states: Arnson v.
     Murphy, 109 U.S.  238; Mitchell v. Clark, 110 id. 633.

(275) Martin v. Hunter's Lessee, 1 Wheat. 304.

(276) U.S.  v. Peters, 5 Cr. 115.

(277) 77  Hobart v.  Drogan, 10  Pet. 10.8;  Ex parte  McNiel, 13
     Wall. 236.

(278) Ry. Co. v. Whitton, 13 Wall. 270.

(279) Edwards  v. Elliott,  21 Wall.  532; The  Lottawanna, ibid.
     558; U.  S. v. P. D. M. Co., 176 U.S.  317; cf. The Roanoke,
     189 id. 185. Where the jurisdiction of a court of the United
     States has  attached. a  party to  the suit  who refuses  or
     neglects to  obey its  process will  be liabl@ in damages to
     any party  injured  by  such  neglect  or  refusal:  Amy  v,
     9upervisors, 11  Wall. 136;  and a  trustee of  property  to
     which the  jurisdiction of  a court of the United States has
     attached will  be held  personally responsible  if,  without
     adequate resistance,  he surrenders  such  property  to  the
     process of  a court  of a  state: Chittenden  v. Brewster, 2
     Wall. 191. See also In re Watts and Sachs, l9O U.S.  1.

(280) Diggs v. Wolcott, 4 Cr. 179; Watson v. Jones, 13 Wall. 679;
     Haines v.  Carpenter, 91 U.S.  254; Dial v. Reynolds, 96 id.
     340; Leroux  v. Hudson,  109 id.  468; Byers v. MeAuley, 149
     id. 608; Harkrader v. Wadley, 172 id. 148; ef. In re Neagle,
     135 id.  1; Cole  v. Cunningham, 133 id. 107. See also In re
     Watts and Sachs, 190 id. 1.

(281) French v. Hay, 22 WalL. 250; Dietzsch v. Huidekoper, 103 U.
     S. 494.

(282) Riggs  v. Jobuson  County, 6 Wall. 166; Amv v. Supervisors,
     11 id. 136; Supervisors v. U.S. , 154 U.S.  576.

(283) In  re Blake,  175 U.S.  114. See also The Mayor v. Lord, 9
     Wall. 409; The Supervisors v. Durant, ibid. 415; Bath County
     v. Amy, 13 id. 244.

(284) Hagan v. Lucas, 10 l@et. 400.

(285) Peck v. Janness, 7 Ifow. 612.

(286) Williams v. Benedict, 8 How. 107.

(287) Peale  v. Phipps, 14 How. 368. See @ Vaughan v. Northup, 15
     Pet. 1; Wiswall v. Sampson, 14 Ilow. 52; cf. Erwin v. Lowry,
     7 How. 172.

(288) 9 How. 522, 527.

(289) Houston v. Moore, 5 Wheat. 1.

(290) Claflin  v. Houseman, 93 U.S.  130; Teal v. Feltou, 12 How.
     284, referred to by Bradley, J., 93 U.S.  142, was an action
     of trover  for  a  newspaper  which  a  @tmaster  wrongfully
     refused to  deliver. See  also Eyster v. Gaff, 91 U.S.  521;
     Ex parte  Christy, 3  How. 292,  318, 319;  Nugent v.  Boyd,
     ibid. 426; Williams v. Heard, 140 U.S.  529.

(291) There  is a  concurrent jurisdiction  over crimes, when the
     Criminal act  is an  offense against  the laws  of both  the
     United States  and of  the states;  thus, a state may punish
     the offense  of uttering  or passing  false coin  as a fraud
     practiced on  its citizens: Fox v. Ohio, 5 How. 432, and the
     United States may punish the same act as a crime against it:
     United States  v. Marigold,  9 How.  560. In the same way, a
     state might have, before the adoption of the XIII Amendment,
     punished the  harbouring  of  a  fugitive  slave:  Moore  v.
     Illinois, 14  How. 13,  while the  same act  could have been
     punished in  the courts  of the  United States as an offense
     against the  fugitive slave legislation of Congress. So also
     a state  may  punish  the  forging  of  a  promissory  note,
     although the  forger commits  the further  crime  of  making
     false entries  concerning such  notes  on  the  books  of  a
     national bank: Cross v. North Carolina, 132 U.S.  131. And a
     state may  punish  the  murder  of  a  locomotive  engineer,
     although his  death be  caused by  the derailment of a train
     carrying  the   mails  of   the  United  States:Crossley  v.
     California, 168  U.S.  640. But it may not punish an officer
     of a  national bank who, knowing that the bank is insolvent,
     nevertheless receives  a deposit:  Easton v. Iowa, 188 U.S. 
     220.

(292) The  Moses Taylor, 4 Wall. 411; Moran v. Sturges, 154 U.S. 
     256.

(293) The Hine v. Trevor, 4 Wall. 55Ei.

(294) The Belfast, 7 Wall. 624.

(295) Leon v. Galceran, I 1 Wall. 185.

(296) Edwards v. Elliott, 21 Wall. 532.

(297) Davis v. Packard, 7 Pet. 276.

(298) Rev.  Stat., sec.  711. Per  Bradley,  J.,  in  Claflin  v.
     Houseman, 93 U.S.  140.

(299) See  the judgment  of Gray,  J., in Nash v. Lull, 102 Mass.
     60; cf.  Marsh v.  N., S.  & Co.,  140 U.S.  344; Holt v. 1.
     Mfg. Co., 176 id. 68.

(300) Rev.  Stat. 5@42;  Pacific Nat.  Bank v.  Mixter, 124 U.S. 
     721.

(301) McClung v. Sillhban, 6 Wheat. 598.

(302) In  re Neagle,  135 U.  S. 1;  Etheridge v. Sperry, 139 id.
     266; Ohio  v. Thomas,  173 id.  276; Booke v. Comingore, 177
     id. 459. See also Gableman v. P., D. & E. Ry., 179 id. 335.

(303) Harris v. Dennie, 3 Pet. 292.

(304) Slocum v. Mayberry, 2 Wheat. 1.

(305) Gelston v. Hoyt, 3 Wheat. 246.

(306) In re Loney. 134 U.S.  372.

(307) McKim v. Voorhies, 7 Cr. 279.

(308) Davis  v. Elmira  Savings Bank, 161 U.S.  275; cf. Earle v.
     Conway, 178 id. 456.

(309) Duncan v. Darst, I How. 301.

(310) Freeman  v. Howe,  24 How. 450; Covell v. Heyman, Ill U.S. 
176.

(311) Ableman v. Booth, 21 How. 506.

(312)  Tarble   v.  Case,   13  Wall  397.  A  state  court  may,
     nevertheless, by  process of habeas corpus, inquire into the
     legality of  the detention  of a  person, who,  having  been
     arrested as a fugitive from the justice of another state, is
     detained in  custody by an agent of that other state under a
     wa"ant issued  b3, the  governor of  the state  within whose
     territory the  alleged fugitive  has come: Robb v. Connolly,
     ill U.S.  624.

(313) Wallace v. McConnell, 13 Pet. 136.

(314) Suydam v. Broadnax, 14 Pet. 67; Hvde v. Stone, 20 How. 170;
     Green  v. Creighton, 23 id. 90.

(315) Slocum  v. Mayberry,  2 Wheat.  1; Srraith v. McIver, 9 id.
     532; Hagan  v. Lucas, 10 Pet. 400; Wallace v. McConnaell, 13
     id. 136;  Erwin v. Lowry, 7 How. 172; Peck v. Janness, ibid.
     612:; Williams  v. Benedict,  8 id. 107; Wiswall v. Sampson,
     14 id.  52; Peale  v. Phipps, ibid. 368; Pulliam v. Osborne,
     17 id.  471; Taylor v. Carryl, 2co id. 583; Freeman v. Howe,
     24 id.  450; Covell v. Heyman, 111 U.S.  176;; Heidritter v.
     Elizabeth  Oil-cloth  Co.,  112  id.  294;  Cross  v.  North
     Carolina, 132 id. 131; R.G.R. v. Gomila, ibid. 478; L.C. Co.
     v. MeCreety, 141 id. 475; In re Tyler, 149 id. 164; Byers v.
     MeAuley, ibid.  608; Cemtral  Nat. Baiak v. Stevens, 169 id.
     432; Harkrader  v. Wadley,  172 id.  148; White v. Schloerb,
     178 id.  542; cf.  Etheridge v. Sperry, 139 id. 266; Bock v.
     Perkins, ibid.  628; Moran v. Sturges, 154 id. 256; Earle v.
     Pennsylvania, 178  id. 449;  Earle v.  Conway, ibid. 456. In
     Covell v.  Heyman, Lll  U.S.   182, Matthews, J., said: "The
     forbearance  which   courts  of   co-ordinate  jurisdiction,
     administered under  a single  system, exercise  toward  each
     other,  whereby   conflicts   are   avoided,   by   avoiding
     interference with  the process of each other, is a principle
     of comity,  with,  perhaps,  no  higher  sanction  than  the
     utility which  comes from  concord; but between state courts
     and those of the United States it is something more. It is a
     principle of right and of law, and, therefore, of necessity.
     It leaves  nothing to  discretion or mere convenience. These
     courts do  not belong  to the  same system,  so far as their
     jurisdiction is concurrent; and although they coexist in the
     same  space,  they  are  independent,  and  have  no  common
     superior. They exercise jurisdiction, it is true, within the
     same territory,  but not  in the  same plane;  and when  one
     takes into its jurisdiction a specific thing, that res is as
     much withdrawn from the judicial power of the other as if it
     had been  carried physically  into a  different  territorial
     sovereignty. To  attempt to seize it by a foreign process is
     futile and void. The regulation of process, and the decision
     of questions relating to it, are part of the jurisdiction of
     the court from which it issues."

(316) Slocum  v. Mayberry, 2 Wheat. 1; Day v. Gallup, 2 Wall. 97;
Buck v. Colbath, 3 id. 334.

(317) Lammon v. Feusier, 1ll U.S.  17.

(318) Krippendorf v. Hyde, 110 U.S.  276.

(319) Caldwell  v. Texas, 137 U.S.  692; Leeper v. Texas, 139 id.
     462; Giozza  v. Tiernan, 148 id. 657; 1. C. Ry. v. Iowa, 160
     id. 389;  Tonawanda U. Lvon, 181 id. 389; Detroit v. Parker,
     ibid. 399.

(320) L.  & N.  R. v.  Schmidt, 17T  U.S.   230; see  also In  re
     Kemmler, 136 id. 436; cf. Simon v. Craft, 182 id. 427.

(321) Boswell's  Lessee v.  Otis, 9 How. 336; Harris v. Hardeman,
     14 id.  334; Nations v. Johnson, 24 id. 195 ; York v. Texas,
     137 U.  S. 15;  Kauffman v.  Wooters, 138 id. 285; Dewey 'V.
     Des Moines,  173 id.  193; Roller v. Holly, 176 id. 398; cf.
     Gallup v. Schmidt, 183 id. 300.

(322) Arndt  v. Griggs, 134 U.S.  316; see also Hanover Nat. Bank
     v. Moyses,  186 id. 181; cf. Ro Bards v. Lamb=m, 127 id. 58.
     But  a   court  may   not,   by   any   proceedings,   grant
     administrati@n of  the estate  of a  living person: Scott v.
     MeNeal, 154 U.S.  34.

(323) Duncan  v. Missouri,  152 U.S.  . 377; Holden v. Hgrdy, 169
     id. 366;  Backus v. P. S. U. D. Co., ibid. 557; Brown v. New
     Jersey, 175  id. 172;  L.&N.R.  v.  Schmidt,  177  id.  23O;
     Freeland v.  Williams, 131  id. 405;  L. & N. R. v. Woodson,
     134 id.  M614; Natal  v. Louisiana,  139 id. 621; Andrews v.
     Swartz, 156  id. 272;  Lowe v.  Kansas, 163 id. 81; Jones v.
     Brim, 165  id. 180;  Nobles v.  Ge- orgia,  168 id. 398. See
     also Minder v. Georgia, 183 id. 559.

(324) Walker  v. Sauvinet, 92 U.S.  90; Church v. Kelsey, 121 id.
     282; cf. I. C. Ry. v. Iowa, 160 id. 389.

(325)  Hurtado  1,,.  California,  110  U.  @.  517;  MeNulty  v.
     California, 149  id. 645;  Hodgson v.  Vermont, 168 id- 262;
     Bolln v.  Nebraska, 176  id. 83;  Maxwell v. Dow, ibid. 581;
     Davis v. Burke, 179 id. 399.

(326) Brown v. New Jersey, 175 U. S-. 172.

(327) Maxwell v. Dow, 176 U.S.  581.

(328) Hal@ger v. Davis, 146 U.S.  3=14.

(329) Enenbecker  v. Plymouth  County-, 134  U.S.   31; cf. In re
     Debs, 158 id. 564; Tinsley v. Anderson, 171 id. lo=l.

(330) Lawton v. Steele, 152 U.S.  133.

(231) Missouri  v. Lewis,  101 U.  S. 22; Duncan v. Missouri, 152
     id. 377; Moore v. Missouri, 159 id. 673.

(232) Ohio v. Dollison, 194 U.S.  445.

(233) Spies v. Dlinois, 123 U.S.  131.

(234) West v. Louisiana, 194 U.S.  258.

(235) Commissioners  of  Tippecanoe  v.  Lucas,  93  U.  S.  108;
     Louisiana v. New Orleans, 109 id. 285.

(336) Bradley v. Lighteap, 195 U.S.  1.

(337) Arrowsniith v. Harmoning, 118 U.S.  194.

(338) Cross v. North Carolina, 132 U.S.  131.

(339) 1. C. Ry. v. Iowa, 160 U.S.  389.

(340) Lent  v. Tillson, 140 U.S.  316; B. T. Co. v. B. B. R., 151
     id. 137.  See also  Marrow v.  Brinkley, 129  id. 178; In re
     Converse, 137  iti. 624;  C. L. Co. v. Laidley, 159 id. 103;
     Hooker v.  Los Angeles,  188 id. 314; Arbuekle v. Blackburn,
     191 id. 405.

(341) In re Manning, 139 U.S.  504.

(342) Palmer 7. @MeMahon, :L33 U.S.  660.

(343) MeMillen v. Anderson, 95 U.S.  37; Davidson v. New Orleans,
     96 id.  @)7; Kelly  v. Pittsbtirah,  104 id.  78;  Hagar  v.
     Reclamation District,  Irl i(l.  701; Head v. A. '.qfg. Co.,
     113 id.  9; Wurts v. Hoagland, 114 id. 60(5; Kentucky R. Tax
     Casts, 115  id. 321;  Spencer  v.  Merchant,  125  id.  345;
     Walston v.  -N@evin, 128  id. 578;  Lent v. Tillson, 140 id.
     316; Paulsen  v. Portland,  149 id. 30; P., (., ('. & St. L.
     Ry. v. Backus, 154 id. 421; W. & St. P. L. Co. v. Minnesota,
     159 id.  526; Fallbrook  Irr. Dist. v. Bradley, 164 id. 112;
     M. &  M. B;trtk  v.  Pennsylvania,  167  id.  461;  King  v.
     Mullins, 171  id. 404; B. B. & B- (I. R. v. New Whatcom, 172
     id. 314;  Weyerhaueser v.  Minnesota, 175 id. 550; French v.
     B. A.  P. Co.,  181 id. 324; Detroit ii. Parker, ibid. 3919;
     Gallup v.  Schmidt, 183  id. 300; King v. Portland, 184 iti.
     61; Voi,t  v. Detroit, ibid. 115; Goodrich v. Detroit, ibid.
     432; Turpin  v. Lenion,  187 id.  51; Glidden v. Harrington,
     189 id.  255; Hibben  v. Smith, 191 id. 310; Leigh v. Green,
     193 id.  79; cf.  Carson v.  Broekton Sewerage Com., 182 id.
     398; League  v. Texas,  184 id. 156. And a state may provide
     that a  proposed improvement  shall not be made if a protest
     is filed by a majority of resident owners of property liable
     to  assessment  therefor,  although  no  such  privilege  of
     protest is  afforded non-resident  owners, where there is no
     discrimination in  assessing for the improvement:Field v. B.
     A. P. Co., 194 U.S.  618.

(344) Pearson  v. Yewdall,  !95 U.  S. 294; Huling v. K. v. Ry. &
     Imp. Co.,  130 id.  559; K.  W. P. Co. v. G. B. & M. C. Co.,
     142 id.  254; L.  I. W.  S. Co.  v. Brooklyn,  166 id.  685;
     Backus v.  F. S.  IT. D.  Co., 169  id. 557;  Hooker v.  Los
     Angeles, 188 id. 314.

(345) It  may not  tax a franchise granted by another state: L. &
     J. F. Co. v. Kentucky, 188 U.S.  385. The bare observance of
     legal  forms  is  insufficient  where  the  proceedings  are
     manifestly fraudulent:  C., B.  & Q.  R. v. Chicago,166 U.S.
     226; cf.  Fallbrook Irr. Dist. v. Bradley, 164 id. 112, 168.
     And compensation  must  be  made  or  secured  when  private
     property is  taken for  public use:  T.  1.  W.  S.  Co.  v.
     Brooklyn, 166  id. 685;  Norwood v.  Baker, 172 id. 269; cf.
     K.W.P. Co.  v. G.B.&M.C.  Co.,  142  id.  254;  Eldridge  v.
     Trezevant, 160 id. 452; H. Bridge Co. v. Henderson (ity, 173
     id. 592;  A. Ry.  v. New  York, 176  id. 335;  0. 0.  Co. v.
     Indiana, 177  id. 190;  Williams v. Parker, 18S id. 491. The
     XIV Amendment,  unlike the  V Amendment. does not contain an
     express provision that just compensation shall be rendered.

(346) Mugler v. Kansas, 1'.)3 U.S.  623; Kidd v. Rearson, 128 id.
     1.

(347) Cronin v. Adams, 192 T@. S. 108.

(348) Holden  v. Hardy,  169 U.S. 366. And it may limit the hours
     of  labour   on  work   thereafter  contracted  for  by  its
     municipalities: Atkin v. Kansas, 191 U.S. 207.

(349) O. O. Co. v. Indiana, 1 i-7 U.S.  190.

(350) Dow  v. Beidelmain,  125 v.  S. 680; N., C. & St. L. Ry. v.
     Alabama, 128 id. 96; C. & G. T. @v. v. Wellman, 143 id. 339;
     St. L. & S. P. Ry. v. Gill, 156 id. 649; C., M. & St. P. Ry.
     v. Tompkins,  176 id.  167; ef.  C., M.  &  St.  P.  Ry.  v.
     Minnesota, 134  id. 418;  M. E. Ry. v. Minnesota, ibid. 467;
     Smyth v.  Ames, 169 id. 466; L. S. & M. S. Ry. v. Smith, 173
     id. 684.

(351) Munn  v. Illinois'  94 U.S.  113; Budd v. New York, 143 id.
     517; Brass v. North Dakota, 153 id. 391.

(352) S.D.L.&T.  Co. v.  National City, 174 U.S. 739; K.W. Co. v.
     Knoxville, 189  id. 434: S.D.L,&T. Co. v. Jasper, ibid. 439;
     Stanislaus County v. S. J. & K. R. C. & I. Co., 192 id. 201.
     See also Cotting v. K. C. S. Y. Co., 183 id. 79.

(353) M.P.Ry.  v. Mackey,  127 U.S. 205; M.&St.L. Ry. v. Herrick,
     ibid. 210;  St. L. & S. P. Rv. v. Mathews, 165 id. 1; cf. M.
     & St.  L. Ry.  v. Beckwith,  129 id.  26; C.,  C. & A. R. v.
     Gibbes, 142  id. 386; New York v. Squire, 145 id. 175; M. P.
     Ry. v.  Nebraska, 164  id. 403; G., C. & S. P. Ry. v. Ellis,
     165 id.  150. See  also C.,  R. I. & P. Ry. v. Zerneeke, 183
     id. 582.

(353) Dent  v. West  Virginia, 129  U.S.  114; Reetz v. Michigan,
     188 id. 505.

(354) MorIey v. L. S. & M. S. Ry., 146 U.S.  162.

(356) O. I. Co. v. Da.ags, 172 U.S.  557.

(357) K. 1. Co. v. Harbison, 183 U.S.  13.

(358) C. C. D. Co. v. Ohio, 183 U.S.  238.

(359) L. & N. R. v. Kentucky, 183 U.S.  503.

(360) M. & St. L. R. v. Minnesota, 193 U.S.  53.

(361) Booth v. Illinois, 184 U.S.  425.

(362) Fischer v. St. Louis, 194 U.S.  361.

(363) Provident Inst. for Savings v. Jersey City, 113 U.S.  506.

(364) Gross v. U.S.  Mtge. Co., 108 U.S.  477.

(365) Barrett v. H4mes, 102 U.S.  651.

(366) Wheeler  v. Jackson, 137 U.S.  245; Turner v. New York, 168
     id. 90;  S. L.  & T. Co. v. Comptroller of New York, 177 id.
     318.

(367) Campbell v. Holt, 115 U.S.  620.

(368) Orr v. Gilman, 183 U.S.  278.

(369) St. L. C. C. Co. v. Illinois, 185 U.S.  203.

(370) Fielden v. Illinois, 143 U.S.  452.

(371) Holden  v. Minnesota,  137 U.  S.  483.  On  the  power  of
     executive officers  to decide  upon a  term of imprisonment,
     see Dreyer v. Illinois, 187 U.S. 71.

(372) Wilson v. North Carolina, 169 U.S.  586.

(373) Wilson v. Eureka City, 173 U.S.  32.

(374) Taylor  and Marshall  v.  Beckham,  178  U.  S.  548.  ]For
     decisions as to liberty, "see Allgeyer v. Louisiana, 165 id.
     578; Davis  v. Massachusetts,  167 id. 43; and also G. S. F.
     H. Co.  v. Jones,  193 id. 532; as to "property," see Pennie
     v. Reis,  132 id.  464; Eldridge  v. Trezevant, 160 id. 452;
     Plessy v.  Ferguson, 163 id. 537; M. P. Ry. v. Nebraska, 164
     id. 403;  Sentell v.  N. 0.  & C. R., 166 id. 698; W. I;L v.
     Deffimee, 167  id. 88.  On due  process of  law" under the V
     Amendment,  see  Sec.  112,  supra.  The  XIV  Amendment  is
     directed against the states and, therefore, does not protect
     individuals against  actions by  officials in  violation  of
     state laws: Barney v. City of New York, 193 U.S.  430.

(375) "The  judgments of a foreign state are prima facie evidence
     only, and  but for  these  constitutional  anci  legislative
     provisions judgments of a state of the Union, when sued upon
     in  another   state,  would  have  no  greater  effect  ....
     Judgments rendered  in ...  foreign country,  by the laws of
     which our  own judgments are reviewable upon the merits, are
     not entitled  to full credit and conclusive effect when sued
     upon in  this country,  but are prima facie evidence only of
     the justice  of the plaintiff's claim," Hilton v. Guyot, 159
     U.S.  113, 182, 227. But where, by international comity, the
     courts of  another country  give full effect to the judgment
     of an  American court,  a judgment  rendered in that country
     can be  impeached only  on the  ground of  fraud: Ritchie v.
     Mwuen, 159 U.S.  235.

(376) Act of 26th May, 17901, 1 Stat. 122; Rev. Stat., see. 905.

(377) U.S.  v. Amedy, 11 Wheat. 392.

(378) C.&A.R.  v. W.F.Co.,  119 U.S. 615, 622; cf. Friedlander v.
     T.&P.Ry., 130 id. 416.

(379) Elmendorf v. Taylor, 10 Wheat. 152; Smith v. Condry, 1 How.
     28; Bueher  v. C. R., 125 U.S.  555; Cross v. Allen, 141 id.
     528; B.  T. Co.  v. B.  B. R., 151 id. 137; Laing v. Rigney,
     160 id.  531; Turner  v. Wilkes  County Comrs., 173 id. 461;
     Mitchell v. First Nat. Bank, 180 id. 471; A. A. P. Co. v. D.
     P. Co., 191 id. 373.

(380)   Spencer v.  Merchant, 125 U.S.  345; Fallbrook Irr. Dist.
     v. Bradley, 164 id. 112; Forsyth v. Hammond, 166 id. 506; In
     re Duncan,  139 id. 449; Leeper v. Texas, ibid. 462; Andrews
     v. Swartz,  156 id. 272; Miller ,v. C. R., 168 i& 131; Brown
     v. New  Jersey, 175  id. 172;  Erb v.  Morasch, 177 id. 584;
     Wilkes County v. Coler, 180 id. 506.

(381) Glenn  v. Garth,  147 U.S.  360; Lloyd v. Matthews, 155 id.
     222; Banholzer  v. N.  Y. L. 1. Co., 178 id. 402; Johnson v.
     N. Y.  L. I.  Co.,  187  id.  491;  E.  B.  &  L.  Assn.  v.
     Williamson, 189  id. 122; Finney v. Guy, ibid. 335. Bee also
     E. B. & L. Amn. v. Ebaugh, 185 id. 114.

(382) C. P. Co. v. @kwitif, 188 U.S.  567.

(383) S. v. Amedy, 11 Wheat. 392.

(384) Caperton  v. Ballard,  14 Wall. 238; Ferguson v. Harwood, 7
     Cr. 408 Owings v. Hull, 9 Pet. 607, 627.

(385) MeElmoyle v. Cohen, 13 Pet. 312; Bank of Alabama v. Dalton,
     9 How. 522; Bacon v. Howard, 20 id. 22.

(386) Armstrong  v. Carson,  2 Dall.  302; Mills v. Duryee, 7 Cr.
     481; Hampton v. McConnel, 3 Wheat. 234.

(387) Christmas  v. Russell,  5 Wall. 290; Maxwell v. Stewart, 22
     id. 77.  See, however,  dicta in  MeNitt v. Turner, 16 Wall.
     352, 366; Cole v. Cunningham, 133 U.S.  107, 112; Simmons v.
     Saul, 138  id. 439,  454. In Cole v. Cunningham, it was held
     that a  court may  enjoin a  citizen of  its own  state from
     prosecuting fraudulent  proceedings commenced  by him in the
     courts of  another state.  In Andrews  v. Andrews, 188 U.S. 
     14, a  state court  properly refused  credit  to  a  divorce
     obtained by fraud in another state.

(388) Landes  v. Brant,  10 How. 348, 371; cf. Knowles v. G. & C.
     Co., 19  Wall. 58;  Cooper v.  Newell,  173  U.  S.  555.  A
     judgment conclusive  in  the  state  in  which  R  has  been
     rendered is  conclusive in  the courts of the United States:
     Caldwell v.  Carrington, 9  Pet. 86; Christmas v. Russell, 5
     Wall. 302;  Cheever v.  Wilson, 9 id. 108; Pennoyer v. Neff,
     95 U.  S. 714;  C. &  A. R. v. W. F. Co., 108 id. 18; Erb v.
     Morasch, 177 id. 584.

(389) Board of Pub. Works v. Columbia College, 17 Wall. 521.

(390) D'Arey v. Ketchum, 11 How. 165.

(391) Hanley  v. Donoghue,  116 U.S.  1; -Renaud v. Abbott, ibid.
     277.

(392) Glass v. Sloop Betsey, 3 Dall. 6;Rose L. Himely, 4 Cr. 241,
     269; Elliott  v. Peiraol,  1 Pet. 328, 340; Voorhees v. Bank
     of the  U.S. ,  10 id.  449, 475;  Wilcox v. Jackson, 13 id.
     498, 511; Shriver's Lessee v. Lynn, 2 How. 43, 59; Lessee of
     Hickey v.  Stewart, 3  id. 750,  762; Williamson v. Berry, 8
     How. 495, 540; Thompson v. Whitman, 18 Wall. 457; Maxwell v.
     Stewart, 22  id. 77;  Cole v.  Cunningham, 133  U.  S.  107;
     Simmons v.  Saul, 138 id. 439; Thormann v. @me, 176 id. 350;
     Clarke v.  Clarke, 178  id. 186; Andrews v. Andrews, 188 id.
     14; G. S. & L. S. v. Dormitzer, 192 id. 125.

(393) Mayhew  v. Thatcher,  6 Wheat.  129; D 'Arcy v. Ketchum, 11
     How. 165;  v. Hardeman,  14 id.  334; L.I. Co. v. French, 18
     id. 404;  Bischoff v. Wethered, 9 Wall. 812; Hoard of Public
     Works v. Columbia College, 17 id. 521; Pennoyer v. Neff, !95
     U.S. 714;  St. Clair  v. Cox,  106 id. 350; G.&B.S.M. Co. v.
     Radcliffe, 137  id. 287;  Cooper v. Newell, 173 id. 555. See
     also Wedding v. Meyler, 192 id. 573.

(394) Boswell  v. Otis,  9 How.  3&6; Ennis v. Smith, 14 id. 400,
     430; Cooper  v. Reynolds,  10 Wall. 308; Jcihnson v. Powers,
     139 U.S.  156; Reynolds v. Stockton, 140 iti. 254; Carpenter
     v. Strange,  141 id.  87; Cooper  v. Newell,  173  id.  555;
     Howard v.  De Cordova,  177 id.  609; Clarke 'V. Clarke, 178
     id. 186.

(395) Pennoyer  v. Neff,  95 U.  S. 714;  Cooper v.  Reynolds, 10
     Wall. 308; Webster v. Reid, 11 How. 437; Phelps v. Holker, I
     Dall. 261; Freeman v. Alderson, 119 U.S.  185.

(396) Nations v. Johnson, 24 How. 195.

(397) Maxwell v. Stewart, 22 Wall. 77.

(398) Reynolds v. Stockton, 140 U.S.  254.

(399) Atherton v. Atherton, 181 U.S.  155.

(400) Andrews  v. Andrews,  188 U.  S. 14;  Brewer,  Shiras,  and
     Peckham, JJ.,  dissenting.  See  also  G.  S.  &  L.  S.  v.
     Dormitzer,  192   id.  125;  Bell  v.  Bell,  181  id.  175;
     Streitwolf v. Streitwolf, ibid. 179.

(401) L. I. Co. v. Prench, 18 How- 404.

(402) St. Clair v. Cox, 106 U.S.  350.

(403) Blount v. Walker, 134 U.S.  607.

(404) 1 Thompson v. Whitman, IS Wall. 457.

(405) Knowles v. G. & C. Co., 19 Wau. 58.

(406) Cooper v. Newell, 173 U.S.  555.

(407) Stacy v. Thrasher, 6 How. 44.

(408) Johnson v. Powers, 139 U.S.  156.

(409) Urtetiqui v. D'Arbel, 9 Pet. 092.

(410) C., R.I. & P. Ry. v. Sturm, 174 U.S.  710.

(411) Bank of the State of Alabama v. Dalton, 9 How. 522.

(412) Wisconsin v. P. I. Co., 127 U.S.  265.

(413) Huntington v. Attrill, 146 U.S. 657; Whitman v. Oxford Nat.
     Bank, 76 id. 559; Hancock Nat. Bank v. Parnum, ibid. 640.

(414)  A. A. P. Co. v. D. P. Co., 191 U.S.  373.

(415) 14 Stat. 385. Rev. Stat., Sec. 709.

(416) Turnbull v. Payson, 95 U.S.  418.

(417) Embry  v. Palmer,  107 U.S.  3; Werlein v. New Orleans, 177
     id. 390.  See also  N. F.  & P.  W. v. 0. W. S. Co., 183 id.
     216; Deposit Bank v. Frankfort, 191 id. 499.

(417) Dupasseur v. Roebereau, 21 Wall. 130.


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