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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C. Stuart Patterson