263 Bank of Commerce v. New York City, 2 Black, 620 (1862).

264 Marbury v. Madison, 1 Cranch, 137 (1803).

265 The relation of the United States to the State judiciary; the subject of concurrent (State and federal) judicial jurisdiction, is examined by Hamilton in The Federalist, Nos. lxxviii-lxxxiii. See also Martin v. Hunter’s Lessee, 1 Wheaton, 304 (1816).

266 Hepburn v. Ellzey, 2 Cranch, 445 (1805).

267 Art. iii.

268 United States v. Freight Association, 166 U. S., 290, citing many cases.

269 American Insurance Company v. Cantor, 1 Peters, 542.

270 Luther v. Borden, 7 Howard, 1 (1848).

271 The whole subject of the American judiciary is largely technical and can be known only through intimate knowledge of the Reports, of the Statutes at Large, and familiarity with practice. In the present chapter the essentials of the law of judicial procedure are the immediate subject.

272 Marbury, v. Madison, 1 Cranch, 163.

273 Marbury v. Madison, 1 Cranch, 176–180.

274 All of Marshall’s decisions rest on the principle, thus set forth, and it remains fundamental in America, applying alike in the States and in the United States.

275 The principle is examined in State ex rel. v. Stone, 120 Missouri, 428 (1894). Also in Luther v. Borden, 7 Howard, 1 (1848).

276 See Constitution of Massachusetts, Judiciary, III.

277 Political Science and Constitutional Law, J. W. Burgess, ii., 365; “I do not hesitate to call the governmental system of the United States the aristocracy of the robe; and I do not hesitate to pronounce this the truest aristocracy for the purposes of government which the world has yet produced.” Id.

278 United States v. Lee, 106 U. S., 196 (1882).

279 Case of Supervisors of Elections, 114 Mass., 247 (1873); the quotation (in the decision) is from the Constitution of Massachusetts, 1780, Part I, xxx. “The Government of the United States has been emphatically termed a government of laws, and not of men.” Marbury v. Madison, 1 Cranch, 163.

280 State ex rel. v. Simons, 32 Minn., 540 (1884). Ex parte Griffiths, 118 Indiana, 83 (1889).

281 Idem.

282 Harwood v. Wentforth, 162 U. S., 547 (1896).

283 Osborn v. Bank of the United States, 9 Wheaton, 738 (1824).

284 Osborn v. Bank of the United States, 9 Wheaton, 738 (1824).

285 Many cases; see Southern Pacific Railroad Co. v. California, 118 U. S., 109 (1866); Beck v. Perkins, 139 U. S., 628 (1891).

286 Börs v. Preston, 111 U. S., 252. (1884).

287 The steamboat Magnolia, 20 Howard, 296 (1857).

288 Ex parte Siebold, 100 U. S., 37 (1879). Thus canals are highways of commerce and subject to “regulation” by Congress. The Robert W. Parsons, 191 U. S., 17 (1903); Ex parte Boyer, 109 U. S., 629 (1884).

289 Stanley v. Schwalby, 162 U. S., 255 (1896), where the cases are cited.

290 Cohens v. Virginia, 6 Wheaton, 414 (1821).

291 United States v. Texas, 143 U. S., 621 (1892). The doctrine also in South Dakota v. North Dakota, 192 U. S., 286 (1904).

292 Ames v. Kansas, 111 U. S., 449 (1884); the “party” may be a State (including its corporate subdivisions), or a natural person (or persons), or an artificial person (a corporation).

293 Wisconsin v. Pelican Insurance Co., 127 U. S., 265 (1888).

294 Hans v. Louisiana, 134 U. S., 1 (1890). The history of the Eleventh Amendment includes the entire record as to suits against States. The principles involved may be found as discussed by Hamilton in The Federalist, No. lxxxi; by Marshall, Madison, Mason, and Henry, in the Virginia Ratifying Convention, 3 Elliott’s Debates; in Mr. Justice Iredell’s dissenting opinion in Chisholm v. Georgia, 2 Dallas, 419; and a special history of the Amendment in the author’s Constitutional History of the United States, ii., 264–293. The Eleventh Amendment overruled the decision in the Chisholm case. As to suits against a State by its own citizens see Railroad Co. v. Tennessee, 101 U. S., 337 (1879). The principle here is that the sovereign may assent to being sued by its own citizens,—an assent declared by the State constitution, but available by the citizen only according to acts of the Legislature. The privilege (if it exists) is statutory. But suit against an officer, or agent of the State,—or of the United States, is not barred if that officer exercises a ministerial function; such suit is not a suit against the sovereign (United States, or State). See U. S. v. Lee, 106 U. S., 196 (1882); Cunningham v. Macon & Brunswick R. R. Co., 109 U. S., 446 (1883).

295 Judiciary Act, 1789, 1888 (and so amended.)

296 The Ohio and Mississippi R. R. Co. v. Wheeler, 1 Black, 286 (1861). Hooe v. Jamieson, 166 U. S., 395 (1897).

297 Martin v. Hunter’s Lessee, 1 Wheaton, 304 (1816); opinion by Mr. Justice Story; this case remains the leading case on the appellate jurisdiction of federal courts. The appellate jurisdiction of the courts is discussed by Marshall in Marbury v. Madison: “The essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted, and does not create that cause,” Ex parte, Watkins, 7 Peters, 568 (1833).

298 Gaines v. Fuentes, 92 U. S., 10 (1875). Security Mutual Life Insurance Company v. Prewitt, 202 U. S., 246 (1906).

299 Whitten v. Tomlinson, 160 U. S., 231 (1895). But as to conflicting jurisdiction of State and federal courts see Riggs v. Johnson County, 6 Wallace, 166 (1867).

300 Green v. Neal’s Lessee, 6 Peters, 291 (1832).

301 Idem. The question is examined in Pana v. Bowler, 107 U. S., 529 (1882). Gelpoke v. City of Dubuque, 1 Wallace, 175 (1863).

302 Burgess v. Seligman, 107 U. S., 20 (1883). Bucher v. Cheshire R. R. Co., 125 U. S., 555 (1888).

303 Smith v. Alabama, 124 U. S., 465 (1888). Western Union Telegraph Company v. Call Publishing Company, 181 U. S., 92 (1901).

304 Art. i., 8: 17; 9: 6, 8; 10: 1, 2, 3; Art. iii.,2: 1, 2, 3; Art. iv., 1: 1; 2: 1, 2, 3; 3: 1, 2; 4: 1; Art. v., Art. vi., 2, 3; Art. vii., 1; Amendments VI., X., XI., XIII., XIV., XV., XVI., XVII.

305 Thompson v. Whitman, 18 Wallace, 457 (1873).

306 McElmayle v. Cohen, 13 Peters, 312. Story, Commentaries on the Constitution, 1313.

307 Williamson v. Berry, 8 Howard, 540.

308 Thompson v. Whitman, 18 Wallace, 457.

309 Hanley v. Donaghue, 116 U. S., 1 (1885).

310 Hanley v. Donaghue, 116 U. S., 1 (1885).

311 Idem.

312 Talbot v. Seeman, 1 Cranch, 38 (1801). The principle here declared is not to be applied strictly in extradition cases, whether between the several States or between the United States and another nation.

313 Buckner v. Finley, 2 Peters, 590 (1829).

314 Buckner v. Finley, 2 Peters, 590 (1829).

315 Art. iii., 2: 1.

316 Paul v. Virginia, 8 Wallace, 168 (1868).

317 Idem.

318 Ward v. Maryland, 12 Wallace, 418.

319 Slaughter House Cases, 16 Wallace, 77 (1872). Blake v. McClung, 172 U. S., 239 (1898).

320 Blake v. McClung, supra.

321 Ex parte Reggel, 114 U. S., 642 (1885). Pennoyer v. Neff, 95 U. S., 714 (1877).

322 Art. iv., 2: 2. Revised Statutes, §§ 5278, 5279.

323 Ex parte Reggel, supra.

324 Lascelles v. Georgia, 148 U. S., 537 (1893).

325 Art. i., 10: 1.

326 Lascelles v. Georgia, supra. In international law the right of extradition does not include fugitives for political offenses. This exemption is an incident of sovereignty.

327 Consult United States v. Rauscher, 119 U. S., 407.

328 Lascelles v. Georgia, supra.

329 Luther v. Borden, 7 Howard, 1 (1848).

330 Idem.

331 Luther v. Borden, 7 Howard, 1 (1848).

332 Art. iv., 4: 1.

333 Minor v. Happersett, 21 Wallace, 162 (1874).

334 Idem.

335 Texas v. White, 7 Wallace, 700 (1868).

336 There are many cases expository of this principle: McCulloch v. Maryland, 4 Wheaton, 316; Barron v. Baltimore, 7 Peters, 243; Slaughter House Cases, 16 Wallace, 36; United States v. Cruikshank, 92 U. S., 542; Ex parte Siebold, 100 U. S., 371; Fong Yue Ting v. U. S., 149 U. S., 698; Legal Tender Cases, 12 Wallace, 457.

337 Art. iv., 3: 1.

338 Art. iii.; Art. iv. § 10; Amendments VI., X., XI., XIII., XIV., XV., XVII., and doubtless also in the matter of federal elections (election of members of the House of Representatives, and of United States Senators) as by Wiley v. Sinkler, 179 U. S., 58; Ex parte Yarbrough, 110 U. S., 651, and in all other Federal relations.

339 Sands v. Manistee Improvement Company, 123 U. S., 288 (1887).

340 If admitted by Proclamation of the President (and so Congress may provide) conformity to conditions imposed is duly announced by him. The enabling acts since 1789 vary in content. They are reprinted in The Federal and State Constitutions, Colonial Charters, and other Organic Laws of the States, Territories and Colonies Forming the United States of America. 7 vols. Washington, Government Printing Office 1909.

341 The provision of the Ohio constitution of 1912 limiting the right to vote to “white male citizens of the United States” (Ohio, Art. v., § 1) citizens with the Fifteenth Amendment of the national Constitution. The power of the Judiciary of the United States to declare constitutions and laws that are repugnant to the Constitution of the United States unconstitutional, null, and void is discussed in the preceding chapter.

342 Art. iv., 3: 2.

343 American Insurance Company v. Canter, 1 Peters, 551 (1828). National Bank v. County of Yankton, 101 U. S., 129 (1879).

344 National Bank v. County of Yankton, supra. But all rights commonly known as fundamental do not work as limitations of the power of Congress to govern Territories or “outlying possessions”; see Downes v. Bidwell, 182 U. S., 244 (1901). Until this decision these fundamental rights were construed as limitations of the power of Congress in its government of Territories; see Callan v. Wilson, 127 U. S., 540 (1888). Thompson v. Utah, 170 U. S., 343 (1898).

345 Downes v. Bidwell, supra, and supporting cases.

346 Barron v. Baltimore, 7 Peters, 243 (1833).

347 Downes v. Bidwell, supra.

348 Idem. In Brown v. Walker, 161 U. S., 591 (1896), (i. e., five years before the decision in Downes v. Bidwell), the Court declared: “The object of the first eight amendments to the Constitution was to incorporate into the fundamental law of the land certain principles of natural justice which had become permanently fixed in the jurisprudence of the mother country, etc.”

349 The dissenting opinions in Downes v. Bidwell should be read; powerful as they are, they are not the opinion of the Court and do not declare what the law is.

350 Cohens v. Virginia, 6 Wheaton, 414 (1821).

351 The power of Congress over territory incorporated into the United States,—that is, over territory over which the Constitution has been extended by Congress is limited by the Constitution: Thompson v. Utah, 170 U. S., 343 (1898). Rasmussen v. United States, 197 U. S., 516 (1905); but over territory not so incorporated, see Hawaii v. Mankichi, 190 U. S., 197 (1903); Dorr v. U. S., 195 U. S., 138 (1904). The decisions support the doctrine that once the Constitution has been extended over territory, it cannot be withdrawn (Downes v. Bidwell) and consequently, all the limitations which by the Constitution affect Congress operate as limitations of its power over the territory, and therefore operate as fundamental rights and privileges of the inhabitants of such territory.

352 So throughout The Federalist, and notably in Nos. xliv., xlv., li.

353 But note the Sixteenth Amendment.

354 First Inaugural. Works (Century Ed.), ii., 7.

355 Art. ii., 1: 2; Amendment XII.

356 In 1787 distrust of the people, among the framers of the Constitution, explains the constitutional provision. James Wilson urged election of the President by popular vote. South Carolina in 1860 was the last State to appoint presidential electors by its Legislature. There is widespread belief in America now that the President should be elected by direct popular vote, as are Congressmen and United States Senators. At present the “electoral vote” is 531; the person receiving the majority of these 531 votes is President of the United States. By American laws there are upwards of 20,000,000 voters; by American constitutional law, the person receiving 266 “electoral” votes is President.

357 Art. ii., 2: 1.

358 Id. 3.

359 Cincinnati, Wilmington, etc., R. R. Co. v. Commissioners, 1 Ohio St., 88; and see a full discussion of the issue in Field v. Clark, 143 U. S., 649 (1892).

Thus technically, the veto power is not a legislative but an executive power, though it is common to speak of the participation of the executive in legislation.

360 Art. i., 2: 5; 3: 6. The subject is discussed in Chapters VII and VIII.

361 Art. i., 8: 1.

362 Id., 8: 12. In practice appropriations are for one year; if the purpose for which the appropriation was made is not effected within the year, the appropriation ceases to be available, unless to the contrary as declared in the law; but an unexpended appropriation may be made available (sometimes) by resolution of Congress, or even of the branch of Congress specially concerned.

363 Art. i., 8: 16.

364 Id., 9: 3. The limitation as to prohibition of the slave trade was temporary. Id., 9: 1.

365 Id., 9: 5.

366 Id., 9: 6.

367 Art. i., 9: 8.

368 Id., 5: 4.

369 Id., 7: 1.

370 Id., 6: 2. This is a limitation of the freedom of choice of certain individuals rather than a limitation of Congress as a legislative body; but what is forbidden to a member of Congress cannot be made lawful for him by act of Congress; thus the limitation may be one of legislation. The provision (Art. i., 9: 2) concerning the suspension of the writ of habeas corpus is not a limitation of the power of Congress, for Congress is the judge whether public safety requires the suspension of the writ.

371 Art. iii., 3: 1, 2.

372 Art. iii., 3: 2; Id. i., 9: 3.

373 Id. iv., 3: 1.

374 Id., 3: 2.

375 The first ten Amendments were demanded in 1787–8 as specific limitations of legislative power of the United States, and as a protection of fundamental, original rights of the people.

376 The history of these Amendments in the author’s Constitutional History of the United States, ii., 199–263.

377 First Amendment.

378 Amendments II., III., IV., V.

379 See the Ninth Amendment.

380 It will be noticed that this Amendment is not a limitation of the States; it applies to the United States.

381 This is brought out by Marshall in Marbury v. Madison, 1 Cranch, 137,—the corner-stone of many later decisions.

382 The limitations of the States by the Constitution of the United States have already been discussed in earlier chapters. Examination of present State constitutions will disclose existing limitations prescribed by the sovereignty, the people of the State.

383 Art. i., 4: 1. The right to vote for members of Congress has its foundation in the Constitution of the United States, not in that of any State: Wiley v. Sinkler, 179 U. S., 58; Ex parte Yarbrough, 110 U. S., 651. This means a limitation of State powers,—as some might say; in strictness, it means a definition of federal powers; the jurisdiction of a State cannot exclude the jurisdiction of the United States.

384 Id., 8: 17.

385 No. lxii. (The authorship, strictly speaking, is uncertain, being assigned “to Hamilton or Madison.”)

386 Art. i., 10: 1.

387 Art. i., 10: 2, 3.

388 Id. ii., 2: 1.

389 Id. iii., 2: 2.

390 Amendment XI.

391 Amendment XIII.

392 Amendment XIV.

393 Id.

394 Art. i., 2: 3.

395 Id. v.

396 Id. i., 2: 4. Amendment XVII., 2.

397 Art. iv., 1: 2.

398 Amendment XII.

399 Art. ii., 2: 2.

400 Id. iv., 2: 1.

401 Id., 4. But the Governor cannot so apply if the Legislature is in session. The reason here is that the people of the State have fully empowered their representatives in the Legislature “to see that the Commonwealth suffers no harm.”