Chapter VII

.

[410] Marbury _v._ Madison, 1 Cranch, 137 (1803).

[411] Art. vi., 2, 3.

[412] Chicago, etc., Ry. Co. _v._ Wellman, 143 U. S., 339 (1892); Frees _v._ Ford, 6 New York, 176 (1852); Commonwealth _v._ McCloskey, 2 Rawle (Pa.) 374; Wellington, Petitioner, 16 Pickering (Mass.), 96.

[413] McCulloch _v._ Maryland, 4 Wheaton, 421 (1819).

[414] _Idem._, 423.

[415] No. lxxxiv.

[416] _Pennsylvania and the Federal Constitution_, McMaster and Stone, 254. Both Hamilton and Wilson were overruled by the public demand for a Bill of Rights, and the first ten Amendments were speedily added to the Constitution.

[417] Ogden _v._ Saunders, 12 Wheaton, 332 (1827); Martin _v._ Hunter’s Lessee, 1 Wheaton, 304 (1816); United States _v._ Aaron Burr, Cotton’s _Constitutional Opinions of John Marshall_, 1.100; Sturgis _v._ Crowningshield, 4 Wheaton, 122 (1819); Cohens _v._ Virginia, 6 Wheaton, 264 (1821); Cooley, _Constitutional Limitations_, 6th Edition, 204.

[418] Norton _v._ Shelby County, 118 U. S., 425.

[419] The relation of the judiciary to ministerial officers has already been examined; see Chapters VII and VIII. But see in this connection, the Secretary _v._ McGarrahan, 9 Wallace, 298; United States _v._ Black, 128 U. S., 40; United States _v._ Windom, 137 U. S., 636; United States _v._ Blaine, 139 U. S., 306; State _ex rel._ _v._ Stone, 120 Missouri, 428.

[420] Pennsylvania, 1873, Art. iv. §16. This provision does not empower the Governor to cut down an item, but in practice, it is so construed.

[421] As sovereignty is a unit, any examination of particular aspects of it must be but a partial examination of its operations. The Constitution of the United States is a unit, in so far as the sovereignty,—the people of the United States,—have made it the expression of their plan of government. It follows that close examination of any department or feature of the Constitution as a plan of government discloses that feature in relation with other features; the Constitution is an expression of a mass of relations. Thus it is that a decision of the Supreme Court may relate to several matters, seemingly without relation, but necessarily co-related. The present chapter on _The Law of Limitations_ discusses executive, legislative, and judiciary and the principles of government by which it acts. _The entire subject of American constitutional law must be viewed as a whole._ See Pollock _v._ Farmers’ Loan and Trust Co., 158 U. S., 601 (1895); Field _v._ Clark, 143 U. S., 649 (1892). Also _The Federalist_, Nos. xliv.-lvi.

[422] Art. ii., 2: 2.

[423] American Insurance Company _v._ Canter, 1 Peters, 511.

[424] Amendments IX., X.

[425] Art. vi., 3. The ratifying conventions, 1788–9, formulated in the aggregate some two hundred amendments in the nature of provisions in a Bill of Rights. These, reduced to twelve, were presented by Madison (May 25, 1789) in the House of Representatives and were duly submitted to the States for ratification. Ten were ratified (1790).

[426] Reynolds _v._ United States, 98 U. S., 145 (1878).

[427] Davis _v._ Beason, 133 U. S., 333.

[428] Cooley, _Principles of Constitutional Law_, 3d Edition, 226. As to “Readings from the Bible” in public schools, _see_ Pfeiffer _v._ Board of Education, 77 N. W. Reporter, 250 (1898); State _ex rel._ Weiss _v._ District Board, 76 Wisconsin, 177 (1890).

[429] People _v._ Ruggles, 8 Johns (N. Y.), 290. The exemption from taxation of property belonging to religious bodies (corporations) is not because of any fundamental right of such bodies to exemption, but because of the will of the legislature. It is a matter of policy.

[430] The winning of these and other fundamental rights is largely the subject of English constitutional history.

[431] So expressed in many State constitutions, as Pennsylvania, 1873, i., 7.

[432] A right fully established at the trial of the Seven Bishops, 1688.

[433] United States _v._ Cruikshank, 92 U. S., 542 (1875).

[434] West _v._ Cabell, 153 U. S., 78; Weeks _v._ U. S., 232 U. S., 383; _Ex parte_ Milligan, 4 Wallace, 2; U. S. _v._ Louisville & Nashville R.R. Co., 236 U. S., 318; U. S. _v._ Boyd, 116 U. S., 616 (the leading case), and Cotting _v._ Kansas City Stock Yards Co., 183 U. S., 79 (1901).

[435] Paul _v._ Virginia, 8 Wallace, 168 (1808); Blake _v._ McClung, 172 U. S., 239 (1898); Lockner _v._ New York, 198 U. S., 45 (1905).

[436] The rights of the person, and his or her rights of property are the essential subject of the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments. Similar provisions are included in the Bills of Rights in the State constitutions.

[437] Corfield _v._ Coryell, 4 Washington C. C., 371; Slaughter House Cases 16 Wallace, 36.

[438] This act of sovereignty is so rare as almost to be unknown. In America the act takes the form of an amendment to the Constitution.

[439] The forty-eight States have had, in the aggregate, some one hundred and twenty-five constitutions, and to these have been added some three hundred amendments (1776–1917). The federal Constitution has been amended seventeen times (1787–1913).

[440] Downes _v._ Bidwell, 182 U. S., 244 (1901).

[441] Pfeiffer _v._ Board of Education of the City of Detroit, 77 N. W. Rep., 250 (1898).

[442] Reynolds _v._ United States, 89 U. S., 145 (1878).

[443] Boyd _v._ United States, 116 U. S., 616 (1886). (Important historical data given in this case.)

[444] Robertson _v._ Baldwin, 165 U. S., 275 (1897).

[445] Cooley, _Constitutional Limitations_, 353; _Ex parte_ Wall, 107 U. S., 265 (1883). Murray’s Lessee _v._ The Hoboken Land and Improvement Company, 18 Howard, 272 (1855), considered the leading case.

[446] Hurtado _v._ California, 110 U. S., 516 (1884).

[447] Yick Wo _v._ Hopkins (San Francisco Laundry Cases), 118 U. S., 356 (1886).

[448] Pembina Mining Company _v._ Pennsylvania, 125 U. S., 181 (1888). Barbier _v._ Connolly, 113 U. S., 27 (1885). Holden _v._ Hardy, 169 U. S., 366 (1898). But an act making it a criminal offense to employ a female in any clothing factory more than forty-eight hours in any one week violates the Fourteenth Amendment as violating the right of contract and being class legislation: Ritchie _v._ State, 155 Illinois, 98 (1895).

[449] Dent _v._ West Virginia, 129 U. S., 114 (1889). And cases cited.

[450] Barbier _v._ Connolly, _supra_. Mugler _v._ Kansas, 123 U. S., 623 (1887). The power to regulate, that is, the jurisdiction of the police power of the State, as decided in Munn _v._ Illinois, 94 U. S., 113 (1876), includes the power “to provide a maximum charge for the storage and handling of grain” in a warehouse privately owned. This is settled law, but careful reading should be made of the dissenting opinions in this case: Budd _v._ New York, 143 U. S., 517 (1892), sustaining Munn _v._ Illinois, with strong dissenting opinions; Spring Valley Water Works _v._ Schottler, 110 U. S., 347 (1884) sustaining Munn _v._ Illinois, with strong dissenting opinions. The economic question here is whether the State can fix prices, wages, compensation, hours of labor, etc. In this connection examine Lockner _v._ New York, 198 U. S., 45 (1905), sustaining a law of New York State making it a penal offense for any employer to require and permit any employee to work for him more than sixty hours in any one week. The law was sustained as a constitutional exercise by the State of its police power; but see dissenting opinions. The _per contra_ was “the right of the individual to liberty of person and freedom of contract.”

[451] Capital Traction Company _v._ Hof, 174 U. S., 1 (1899). Many cases cited and the history of trial by jury given.

[452] Mr. Justice Matthews in Yick Wo _v._ Hopkins, 118 U. S., 356 (1886).

[453] Amendment XIV., July 28, 1868. It will be noticed here that the word “territory” is not used.

[454] Slaughter House Cases, 16 Wallace, 36 (1872).

[455] Amendment XIV.

[456] Art. iv., 2: 1.

[457] See p. 150.

[458] Canfield _v._ Coryell, 4 Washington, C. C., 371, 380; Paul _v._ Virginia, 8 Wallace, 180, and see pp. 191–211 of the present volume.

[459] Slaughter House Cases, _supra_.

[460] Crandall _v._ Nevada, 6 Wallace, 36 (1867).

[461] Slaughter House Cases, _supra_. (Some additional rights are secured citizens of the United States by Amendment XIV., §2; and by Amendments XIII. and XV.)

[462] Minor _v._ Happersett, 21 Wallace, 162 (1874).

[463] Art. iv., 4.

[464] Minor _v._ Happersett, _supra_. (But see _Ex parte_ Yarbrough, 110 U. S., 651.)

[465] These qualifications, in the aggregate, have been of age, sex, residence, religion, property, race, and tax-paying. See the provisions in the State constitutions in _Charters and Constitutions_, 7 vols., U. S. Government Printing Office, 1909; and a detailed account of these early qualifications (1776–1850) in the author’s _Constitutional History of the American People_, i., ch. iii.

[466] Art. i., 2: 1; Amendment XVII.

[467] _Ex parte_ Yarbrough, 110 U. S., 651, 653; Wiley _v._ Sinkler, 179 U. S., 58 (1900).

[468] United States _v._ Cruikshank, 92 U. S., 542 (1875).

[469] _Idem._

[470] Civil Rights Cases, 109 U. S., 3 (1883).

[471] _Idem._

[472] _Ex parte_, Siebold, 100 U. S., 371 (1879).

[473] Strauder _v._ West Virginia, 100 U. S., 303 (1879).

[474] Civil Rights Cases, 109 U. S., 3 (1883).

[475] 14 Statutes at Large, 27, Ch. 31; Enforcement Act, May 31, 1870, 16 Statutes at Large, 140, Ch. 114.

[476] Civil Rights Cases, _supra_.

[477] That is, violating Amendments VI. and XIV.

[478] Hurtado _v._ California, 110 U. S., 516 (1884).

[479] “The trial by jury in civil cases guaranteed by the Seventh Amendment (Walker _v._ Sauvinet, 92 U. S., 90) and the right to bear arms guaranteed by the Second Amendment (Presser _v._ Illinois, 116 U. S., 252) have been distinctly held not to be privileges and immunities of citizens of the United States against abridgment by the States, and in effect the same decision was made in respect of the guarantee against prosecution, except by indictment of a grand jury in the Fifth Amendment (Hurtado _v._ California, 110 U. S., 516) and with respect to the right to be confronted with witnesses, contained in the Sixth Amendment (West _v._ Louisiana, 194 U. S., 258). In Maxwell _v._ Dow, 176 U. S., 606, when the plaintiff in error had been convicted in a State court of a felony upon an information, and by a jury of eight persons, it was held that the indictment made indispensable by the Fifth Amendment, and the trial by jury guaranteed by the Sixth Amendment, were not privileges and immunities of citizens of the United States, as those words were used in the Fourteenth Amendment.... We conclude, therefore, that the exemption from compulsory self-incrimination (‘see Amendment V.’) is not a privilege or immunity of national citizenship guaranteed by this clause (‘the first clause’) of the Fourteenth Amendment against abridgment by the States.” Twining _v._ State of New Jersey, 211 U. S., 78 (1908).

[480] United States _v._ Wong Kim Ark, 169 U. S., 649 (1898).

[481] Art. i., 8: 4.

[482] United States _v._ Villato, 2 Dallas, 373; Nishimura Ekin _v._ U. S., 142 U. S., 651; Luria _v._ U. S., 231 U. S., 9.

[483] _Ex parte_ Griffiths, 118 Indiana, 83 (1889), citing many cases, (_inter alia_) Hayburn’s Case, 2 Dallas, 409, n.; United States _v._ Ferrera, 13 Howard, 40, n.; United States _ex rel._ _v._ Duell, 172 U. S., 576 (1898), also to be consulted.

[484] United States _v._ Rodgers, 150 U. S., 249 (1893).

[485] Guinn and Beal _v._ United States, 238 U. S., 347 (1915).

[486] _Idem._

[487] _Idem._ and citing _Ex parte_ Yarbrough 110 U. S., 651 (already considered in the present Chapter) and Neal _v._ Delaware, 103 U. S., 370. The decisions of the Supreme Court do not conflict with a State constitution that requires, as a qualification for voting, a literacy test, or a religious test, or a property test, or indeed any test which is not a discrimination on account of race color or previous condition of servitude.

[488] Calder _v._ Bull, 3 Dallas, 386 (1798); Kring _v._ Missouri, 107 U. S., 221 (1882); Thompson _v._ Utah, 170 U. S., 343 (1898). All the State constitutions forbid _ex post facto_ laws.

The right secured to the citizen by the constitutional inhibition of _ex post facto_ legislation forms part of his, or her, privileges and immunities; for though the inhibition cannot be said to be derived from the common law,—and may be said to be essentially statutory, it has become recognized as a fundamental right and of rank with any other fundamental right.

[489] Hollinger _v._ Davis, 146 U. S., 314 (1892).

[490] _Idem._

[491] Boyd _v._ United States, 116 U. S., 616 (1886). The right covers “persons, houses, papers, and effects.” Art. iv.

[492] Harris _v._ People, 128 Illinois, 585 (1889).

[493] Art. v., Act of February 11, 1893, Statutes at Large, 443; Brown _v._ Walker, 161 U. S., 591 (1896).

[494] Amendment VI. Mattox _v._ United States, 156 U. S., 237 (1895).

[495] _Idem._

[496] In the original the clauses are not numbered, nor is there any title to the document. It begins, “WE THE PEOPLE.”

[497] See Amendments XIII., XIV., XV., XVI.

[498] See Amendment XVII.

[499] See Amendment XII.

[500] See Amendment XI.

[501] See Amendments XIII., XIV., XV.

[502] The word, “the,” being interlined between the seventh and eighth Lines of the first Page, The Word “Thirty” being partly written on an Erazure in the fifteenth Line of the first Page, The Words “is tried” being interlined between the thirty-second and thirty-third Lines of the first Page and the Word “the” being interlined between the forty-third and forty-fourth Lines of the second Page.

[503] New Jersey withdrew her consent to the ratification on March 27, 1868.

[504] Oregon withdrew her consent to the ratification October 15, 1868.

[505] Ohio withdrew her consent to the ratification in January, 1868.

[506] North Carolina, South Carolina, Georgia, and Virginia had previously rejected the amendment.

[507] New York withdrew her consent to the ratification January 5, 1870.

[508] Ohio had previously rejected the amendment May 4, 1869.

[509] New Jersey had previously rejected the amendment.

Transcriber’s Notes

Punctuation and spelling were made consistent when a predominant preference was found in this book; otherwise they were not changed.

Simple typographical errors were corrected; occasional unbalanced quotation marks corrected.

Ambiguous hyphens at the ends of lines were retained; occurrences of inconsistent hyphenation have not been changed.

Index not checked for proper alphabetization or correct page references.

Page 1: Duplicate book title removed by Transcriber.

Page 148: “and another nation” was printed as “notion”; changed here.