Page images



Vols. Black, 2; Cranch, 9; Dallas, 3; Howard, 24; Otto, 16; Peters, 16; Wallace, 23; Wheaton, 12,


Abbott's Admiralty, 1; Abbott's U. S., 2; Baldwin, 1; Bee, 1; Benedict, 10; Bissell, 9;

Blatchford, 19; Blatchford's Prize Cases, 1; Blatchford & Howland, 1; Bond, 2;
Brown, 1; Chase, 1; Clifford, 4; Crabbe, 1; Cranch, C. C., 5; Curtis, 2; Daveis, 1;
Deady, 1; Dillon, 5; Flippin, 2; Fisher's Prize Cases, 1; Gallison, 2; Gilpin, 1;
Hempstead, 1; Hoffman, 1; Holmes, 1; Hughes, 4; Lowell, 2; McAllister, 1; Mc-
Cahon, 1; McCrary, 3; McLean, 6; Marshall, 2; Mason, 5; Newberry, 1; Olcott, 1;
Paine, 2; Peters' C. C., 1; Peters' Admiralty, 2; Sawyer, 7; Sprague, 2; Story, 3;
Sumner, 3; Taney, 1; Wallace, C. C., 1; Wallace, Jr., 3; Ware, 2; Washington, 4;
Woods, 3; Woodbury & Minot, 4; Woolworth, 1; Van Ness, 1,




Smith (N. H.); 3 and 4 Day (Conn.); 16, 32 and 31 Conn. ; 2 Brown (Pa.); 6 Call (Va.);

2 Martin (N. C.); 25 Sup. Tex. ; Cooke (Tenn.); Overton (Tenn.); Vt. Reps., 20-25, and 29; 35 Georgia; American Law Register, 30 Vols. ; Brewster (Pa.), 3 and 4; Legal Gazette Reports (Pa.), 1; 2 Haywood (N. C.); Pittsburgh Reports, the Pittsburgh Legal Journal, 3 Vols.; The Philadelphia Reports, 12 Vols. - a reprint of the Legal Intelligencer,



[ocr errors]


Albott's Admiralty

Alb. Adm.
Abbott's U.S..

Albany Law Journal Alb. L. J.
American Law Register... Am. L. Reg.


Bee. Benedict

Ben. Bissell.

Biss. Black.

Black. Blatchford..

Blatch, Blatchford's Prize Cases... Bl. Pr. Cas. Blatchford & Howlalu.... Bl. & How. Bond.

Bond. Brewster

Brewster, Brockenbrough

Marsh, Brown..

Brown. Call

Call (Va.. Central Law Journal.... Cent. L. J. Chase's Decisions ... Chase's Dec. Chicago Legal News Ch. Leg. N. Clifford

Cliff. Colorado Territory.

Colo. T'y. Connecticut Reports...... Conn. Cooke

Cooke (Tenn.). Court of Claims,

Ct. CI. Crabbe

Crabbc. Cranch

Cr. Cranch's Circuit Court. Cr. C. C. Curtis ....

Curt. Dakota Territory.

Dak. T'y. Dallas

Dal. Daveis..

Dav. Day

Day (Conn.). Deady

Deady. Dillon

Dill, Federal Reporter...

Fed. R. Fisher's Patent Cases.. Fish, Pat. Cas. Flippin ...

Flip. Gallison

Gall. Gilpin

Gilp. Hempstead

Ileip. Hoffman.

Hoit. Holmes.

Holmcu. Howard

How, Hughe3...

Hughes. Law and Equity Reporter.. Law & E1. Rep. Legal Gazette Reports ..... Leg. Gaz. R.


Low. McAllister,

McAl. McCahon.

JcCahon. McCrary

McC. McLean

McL. MacArthur

MacArth. Marshall

Marsh. Martin.

Martin (N. C.). Mason

Mason. Montana Territory

Mont. T'y. Newberry.....

Newb. National Bankruptcy Register

N. B. R. Olcott

Olc. Opinions of Attorneys-General...

Opp. Att'y Genl. Oregon

Oreg. Otto

Otto. Overton

Overton (Tenn.). Paine.

Paine. Peters

Pet. Peters' Admiralty.

Pet. Adm. Peters' Circuit Court

Pet. C. C. Philadelphia Reports Phil. Pittsburgh Reports

Pittsb. R. Sawyer ...

Saw. Smith

Smith (N. H.). Sprague

Spr. Story

Story. Sumner

Sumn. Taney

Taney. Utah Territory

Utah Ty. Vermont Reports

Vt. Wallace

Wall. Wallace's Circuit Court Wall. C. C. Wallace, Jr...

Wall, Jr. Ware...

Ware. Washington..

Wash. Washington Territory.. Wash. T'y. Wheaton

Wheat. Wheeler's Criminal Cases .. Wheeler, Woods..

Woods, Woodbury & Minot

Woodb. & M. Woolworth.

Woolw. Wyoming Territory

Wyom. Ty Van Ness

Van Ness.




(As to the Judiciary, see APPEALS AND WRITS OF ERROR; COURTS. Congress and the Executive Department, see

GOVERNMENT. See CITIZENS; CRIMEs; EMINENT DOMAIN; MONEY; OFFICERS; STATES; TREATIES. Pardons, see CRIMES. War Powers, see WAR. Jurisdiction of the Admiralty, see MARITIME LAW. Legal Tender Decisions, see Money. See, aiso, the titles Bonds and CORPORATIONS.]



1. In General, SS 121-320.
2. Congressional Elections, SS 321-

3. Taxation, SS 365-470.
4. Political Assessments, SS 471,

5. Religious Liberty, SS 473-479.

6. Crimes, ES 480-514. III. BILLS OF CREDIT, SS 515-563. IV. RETROSPECTIVE AND Ex Post FACTO





1547. 1. In General, ss 1023-1102. 2. On Nuvigable Waters, SS 1103

1243. 3. Tax on Transportation of Passen

gers and Merchandise, SS 1244–

1346. 4. Regulating Charges for the Use

of Private Property, SS 1347

1371. 5. Discrimination against the Prod

ucts of Other States, SS 1372

1403. 6. Duties on Tonnage, SS 1404–



7. Duties on Imports and Exports,

SS 1446-1531. 8. Portwardens' Fees, SS 1532–1547. IX. MISCELLANEOUS MATTERS UNDER THE


TRACTS, SS 1612–2356. 1. In General, SS 1612-1763. 2. Contracts by the State, SS 1764

1933. 3. State Insolvent Laws, SS 1934-2018. 4. L a ws Affecting Corporations,

SS 2019-2217.
5. Exemption from Taxation, se

XI. THE JUDICIARY, SS 2357-2559.

1. In General, SS 2357–2468.
2. Removal of Causes to Federal

Courts, SS 2469–2517.

3. Trial by Jury, SS 2518-2559. XII. STATE CONSTITUTIONS, SS 2560-2617. XIII. STATUTES AND STATE LAWS, Sš 2618

3084. 1. In General, SS 2618–2681. 2. Enactment of Laws, SS 2682-2693. 3. Approval, S2694-2704. 4. Time of Taking Effect, S$ 2705–

2736. 5. Construction of Statutes, SS 2737–

2980. 6. Repeal of Statutes, SS 2931-3025. 7. State Laws and Decisions, SS

3026-3084. XIV. COMMON LAW, SS 3085_3111.

XV. FOREIGN LAWS, SS 3112-3135. XVI. ORDINANCE OF 1787, SS 3136-3172. XVII, LAW OF NATIONS, SS 3173–3232.

I. GENERAL PRINCIPLES. § 1. Constitution became operative, when.— The constitution did not become operative until it was ratified hy nine states, and the day appointed by congress, in accordance with the resolution of the convention, “for commencing proceedings under the constitution,”

* Edited by ELISHA GREENHOOD, Esq., of the St. Louis Bar, and Editor of the CENTRAL Law Journal. The digest inatter from all cases other than those originally assigned in full to this subject was prepared by (HARLES X. Brows and THEODRIC B. WALLACE, Esqs., of Madison, Wisconsin. VOL. VI - 2


which day was the first Wednesday in March, 1789, and an act passed before that day by a state cannot be said to be a law impairing the obligation of a contract. Owings v. Speed, * 5 Wheat., 420.

$ 2. Powers of the federal government – The departments.— The federal government is one of limited and specific powers.• It cannot exercise jurisdiction by implication, but is confined to the special grants of powers in the constitution, and in carrying into effect these grants the most appropriate means should be adopted, and no means beyond what are neces. sary to give effect to utie 'power can legitimately be used. United States v. Cisna, 1 McL., 257. See GOVERNMENT.

$ 3. Congress is supreme in matters of legislation, and the accounting officers of a department carnot'súperadd a condition not required by an act of congress. Magruder v. United States, * 'Dev., 21.

$ 4. The constitution of the United States confides to congress the exclusive power of disposing of and making all needful rules and regulations respecting the public property of the government, and no officer of the government can exercise the granting power over the public property of the United States. Seabury v. Field, 1 McAl., 3.

$5. It seems that a law giving to the secretary of war exclusive jurisdiction to discharge from service a minor under eighteen, who had enlisted in the service of the United States without the consent of his parent or guardian, would be unconstitutional. Seavey v. Seymour, 3 Cliff., 453.

S 6. The theory of the constitution undoubtedly is, that the great powers of the government are divided into separate departments, and, so far as these powers are derived from the constitution, the departments may be regarded as independent of each other. But beyond that all are subject to regulation by laws touching the discharge of duties to be performed. So mandamus will lie to enforce a ministerial act imposed by congress on the postmastergeneral. Kendall v. United States, 12 Pet., 610.

$ 7. Treasury agents of the United States, directed by act of congress to ascertain and collect debts due from public officers, and who are appointed by the president and hold office at his pleasure, can have and exercise no judicial functions. (Per MARSHALL, C. J.) Ex parte Randolph, 2 Marsh., 481.

S 8. The proviso in the act of July 12, 1870, which declares, in substance, that no pardon acceptance, oath, or other act performed in pursuance, or as a condition, of pardon, shall be admissible in evidence in support of any claim against the United States in the court of claims, or to establish the right of any claimant to bring his suit in that court; and which requires proof of loyalty to be made according to the provisions of certain statutes, irrespective of the effect of any executive proclamation, pardon, or amnesty, or act of oblivion, and when any judgment has been already rendered on other proof of loyalty, the supreme court, on appeal, shall have no further jurisdiction of the cause, and shall dismiss the same for want of jurisdic. tion; and providing further, that whenever any pardon, granted to any suitor in the court of claims, for the proceeds of captured and abandoned property, shall recite in substance that the person pardoned took part in the late rebellion, or was guilty of any act of disloyalty, and shall have been accepted in writing, without express disclaimer and protestation against the fact so recited, such pardon or acceptance shall be taken as conclusive evidence in the court of claims, and on appeal, that the claimant did give aid to the rebellion; and, on proof of sich pardon or acceptance, the jurisdiction of the court shall cease, and the suit shall be forthwith dismissed, is held to be invalid, as prescribing rules of decision for the judicial department, and as impairing the authority of the executive. (MILLER and BRADLEY, JJ., dissent.) United States v. Klein, 13 Wall., 128.

S 9. Rules for construing the constitution.- The constitution deals in generalities and not in details, and as its framers could not perceive beforehand the distinctions which might arise in the course of national existence, it is confined to broad and general principles. Bank of United States v. Deveaux, 5 Cr., 87.

§ 10. The safest rule of interpretation of the constitution, in investigating the nature and extent of congressional powers, is to look at the nature and objects of the particular power, duty or right under consideration, with all the lights and aids of contemporary history, and to give the words of each, just such operation and force, consistent with their legitimate meining, as may fairly secure and attain the ends proposed. This rule of construction is the sime for the constitution as for statutes, wills and contracts. This purpose having been ascertained, the language must be construed in reference to that purpose so as to subserve it. Legal Tender Cases, 12 Wall., 457; Prigg v. Commonwealth of Pennsylvania, 16 Pet., 610.

$ 11. When the binding force of a state law is drawn in question for its supposed repugnancy to the federal constitution, if, by a fair and reasonable interpretation, where the case is at all doubtful, the law can be reconciled with the constitution, it ought to be done; and a contrary course pursued only where the incompatibility is so great as to render it extremely

[ocr errors]

difficult to give the former effect, without violating some provision of the latter. Adams r. Storey, 1 Paine, 79.

$ 12. It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore a construction which would have this effect is inadmissible unless the words require it. Marbury v. Madison, 1 Cr., 174.

$ 13. A constitution contains the permanent will of the people. It is the supreme law of the land. It is paramount to the power of the legislature, and can be revoked or altered only by the power which created it. Legislatures are creatures of the constitution. They owe their existence to it and derive their powers from it, and their acts must conform to it or they will be held void. The constitution fixes the limit of legislative authority, and every act of a legislature in conflict with it is absolutely void. Vanhorne v. Dorrance, 2 Dal., 308.

$ 14. The solution of a question of construction of the constitution depends on the wores of the constitution; the meaning and intention of the convention which framed and proposed it for adoption and ratification to the conventions of the people of and in the severai states, together with a reference to such sources of judicial information as are resorted to by all courts in construing statutes, and to which the supreme court has always resorted in construing the constitution. State of Rhode Island v. State of Massachusetts, 12 Pet., 721; Fal. coner v. Campbell, 2 McL., 201.

$ 15. — whole instrument to be considered.— In construing any particular clause of the constitution the whole instrument should first be considered. United States v. Morris, 1 Curt., 50.

& 16. object to be considered.— A constitutional provision should not be so construed as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischiefs it was aimed at. So where a state constitution prohibits municipalities from loaning their credit to corporations, such prohibition will be held to cover an indirect as well as a direct loan of such credit. Jarrolt 1. Moberly, 13 Otto, 585.

$ 17. — contemporaneous construction.— Thoug the uestion of the constitutionality of a law may be doubtful, yet a contemporaneous construction, and long acquiescence therein, and an extensive and uniform recognition of its validity, must be considered to set the matter at rest. Prigg v. Commonwealth of Pennsylvania, 16 Pet., 621.

§ 18. — principles of natural justice.— A law which is not in conflict with the constitution of the United States, or with that of the state enacting it, cannot be pronounced void by the courts, although its provisions are not in harmony with the principles of natural justice. The matter, in such a case, rests wholly with the legislature, which is wholly responsible to the people and is not under judicial control. Albee v. May, 2 Paine, 81. $ 19,

meaning of words. — The fact that the constitution of a state uses a particular word, e. g., “privileges,” in one clause in a particular sense, is no evidence that this use was intended to be a constitutional definition, especially when used in the same sense in other places in the constitution, and is no evidence that it was used in the same sense in acts of the legislature subsequently passed. But in each instance the sense in which the word is used must be determined from the act in which it occurs. Louisville & Nashville Ry Co. v. Gaines, 2 Flip, 633. $ 20.

retrospective operation.— The rule that an enactment is not to be presumed to be intended to operate retrospectively, applies to constitutions as well as to statutes. Starr v. Hamilton, Deady, 276.

$ 21. Retrospective action of amendments to the constitution, and results which flow naturally from them, are not to be avoided by considerations of inconvenience and hardship. Buckner v. Street, 1 Dill., 257.

$ 22. — meaning of terms to be considered..- The constitution of the United States, in its grant of equity powers to the federal courts, is to be construed according to the meaning of the terms used at the time they were used, and the powers given cannot be enlarged by giving to such terms a meaning which they may have had at a time long previous, but which they had not at that time. (Per TANEY, C. J.) Fontain v. Ravenel, 17 How., 394.

$ 23. — historical and contemporaneous constructions.— In construing any article of doubtful import in the constitution, no better rule can be adopted than to recur to the situation and history of the country at the time, to its contemporaneous exposition, if it has received any, and to the general understanding of the community, if such understanding has been long acquiesced in by all the states and all the courts of the Union. Adams v. Storey, 1 Paine, 90.

$ 24. The early and long-continued construction of the constitution, by both national and state legislatures, is entitled to the gravest consideration in deciding on an alleged repugnancy of a state statute to the federal constitution. Er parte McNiel, 13 Wall., 236.

$ 25. — most reasonable to be adopted.- No court of justice can be authorized so to construe any clause of the constitution as to defeat its obvious ends, when another construc

« PreviousContinue »