enacted thereunder, there is nothing to prevent states from passing acts of limitation to bar suits on judgments rendered in another state, even though the terms of the act are such that in a particular case there was no time when suit could be commenced within the state. Bank of Alabama v. Dalton, 9 How., 528.

§ 93. That clause of the constitution which provides that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, relates only to the validity and effect of a judgment rendered in one state when proved in another. It does not require that judgments in one state shall be followed by the courts of other states as a matter of authority in other similar cases. Wiggins Ferry Co. v. Chicago & A. R. Co., 3 McC., 611.

$94. Guaranty of a republican form of government.- Under the article of the constitution providing that the United States shall guaranty to each state in the Union a republican form of government, it rests with congress to decide what government is the established one in a state when that becomes a question. The decision of this question is political and not judicial in its nature, and the decision of congress on the subject is final, and cannot be questioned by any other tribunal. Luther v. Borden, 7 How., 42. See § 123.

§ 95. The duty of the general government to guaranty a republican form of government to every state does not secure to women the right of suffrage. A republic can exist without universal suffrage. Minor v. Happersett, 21 Wall., 162 (§§ 806–815).

§ 96. Under the clause of the constitution which provides that the United States shall protect each state from domestic violence, it rests with congress to determine the means proper to be adopted to fulfil this guaranty, and congress having vested the right to call out the militia to quell insurrection in the president, upon the application of the legislature or executive of a state, it is his duty to determine who constitute the proper and lawful state government, and his decision is conclusive and cannot be questioned by the courts. The question is a political one, and the judiciary are bound by the decision of the political branch of the government. Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, the statute constitutes him the sole and exclusive judge of the existence of those facts. Luther v. Borden, 7 How., 42.

$97. Legislative construction.- A statute construing a former statute, while it may not affect rights existing prior to its enactment, yet, inasmuch as the legislature has a right to pass a law for the future that such a statute shall be held to mean so and so, such a declaratory statute is equivalent to the passage of a statute of that character for the future, and is a valid law as to future transactions. Stebbins v. Board of Commissioners of Pueblo County, 2 McC., 197.

§ 98. Statutes declaratory of the proper construction of a law are unconstitutional and void as far as they affect past transactions. The construction of the law is a judicial act, and cannot be performed by the legislature, though it seems that such declaratory statute may operate as a rule regulating future transactions. Union Iron Co. v. Pierce, 4 Biss., 330; Koshkonong v. Burton, 14 Otto, 677.

§ 99. The declaration of a state legislature, that a law previously passed is void, because in conflict with the constitution of the state, can have no weight as authority. It is the opinion of one legislature against another, and is not entitled to so much weight as a continuous and contemporaneous exposition of the law to the contrary. Terrett v. Taylor, 9 Cr.,

51.

§ 100. Confirming past acts.- Although a void grant cannot be confirmed by a subsequent act between individuals, yet it is otherwise as to confirmation by statute; and the legislature may, by statute, confirm a deed or grant which was absolutely void at the time of confirmation. Seabury v. Field, McAl., 7; Friedman v. Goodwin, id., 148.

§ 101. An act of a state legislature confirming a title to land in that state, which was conveyed by an executor appointed under the laws of another state, is a legislative, and not a judicial, act. Wilkinson v. Leland, 2 Pet., 660.

102. An act of a legislature confirming and validating sales of real estate made under the orders of the probate courts to purchasers in good faith, for a valuable consideration, where there have been errors, omissions and defects of form in the proceedings, is unconstitutional and void when applied to sales under the order of the probate court without jurisdiction. Seaverns v. Gerke, 3 Saw., 368.

§ 103. Authorizing sale by administrator.- The private act of the legislature of a state, authorizing an administrator, upon order of the proper court, to sell, at private sale, such part of the real estate of the intestate as might be necessary for the payment of his debts, and requiring the sale to be approved by the court before it should be complete, is held to be within the constitutional power of the legislature, although the act requires no notice to heirs, and the same subject is regulated by general acts. Florentine v. Barton, 2 Wall., 210; Watkins v. Holman, 16 Pet., 59.

§ 104. Delegation of power.- The appointment of a railroad commission to fix schedules for the government of railroad companies is no delegation of the power vested in the legislature "to pass laws to regulate freight and passenger tariffs," and is therefore valid. Tilley v. Savannah, etc., R. Co., 5 Fed. R., 641 (§§ 2143–57).

-

§ 105. Unjust laws. A state law which directs the settlement of the accounts of a debtor of the state without notice to him, and provides for a lien on his property for the balance due, is not therefore unconstitutional and void. Though a law may be unjust, it cannot be held void unless violating a constitutional provision. Livingston v. Moore, Bald., 436.

§ 106. Impeachment.- Under that clause in the constitution providing that 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, a district judge of the United States was removed from office on conviction in the senate of the following charges: 1. For misbehavior as a judge in ordering the delivery to the claimant of goods seized by the collector without requiring security. 2. In refusing to hear evidence offered on the part of the United States to show a forfeiture of said goods. 3. In refusing to allow the United States to appeal from his decree, in a case of admiralty and maritime jurisdiction, where the matter in dispute exceeded $300. 4. For appearing on the bench, for the purpose of administering justice, in a state of total intoxication, and then and there frequently, in a most profane and indecent manner, invoking the name of the Supreme Being. Pickering's Case,* Serg. Const. L., 376.

§ 107. A senator of the United States is not subject to impeachment after he has been expelled from his seat in the senate. He is not, after his expulsion, a civil officer of the United States, within the meaning of the constitution. Blount's Impeachment,* Whart. St. Tr., 250.

§ 108. Right of petition. The first amendment to the constitution, which declares that "congress shall make no law abridging the right of the people peaceably to assemble and to petition the government for a redress of grievances," does not authorize congress to punish individuals for disturbing assemblies. Nor is the rule changed by the fourteenth amendment. The same is true of the "right to bear arms," which is guarantied by the constitution. United States v. Cruikshank,* 1 Woods, 308.

§ 109. Illegal sentence.- One was indicted under the act of June 8, 1872, for stealing certain mail-bags of the government. The punishment provided by the statute for that offense is imprisonment for not more than one year, or a fine of not less than $10 nor more than $200. The prisoner was sentenced to one year's imprisonment, and to pay $200, and was committed in execution of the sentence. Having paid his fine, he was again brought before the court at the same term, and an order was entered vacating the former judgment, and he was again sentenced to one year's imprisonment from that date. On a habeas corpus from the supreme court, it was held that the imprisonment under this second judgment was contrary to the personal rights of the individual as secured by the constitution, and the prisoner ordered to be discharged. (Clifford, J., dissented.) Ex parte Lange, 18 Wall., 163.

§ 110. Division of municipalities. The separation of Alexandria from the state of Virginia could have no effect upon the existing contracts of individuals. Such divisions of territory are purely political. A separation of jurisdiction takes place, but private interests and private contracts remain unaffected. Korn v. Mutual Assurance Society of Virginia, 6 Cr.,

199.

§ 111. Vexatious interference with private property.- The act of the legislative assembly of the District of Columbia, providing that no seats in any show, exhibition or theater shall be marked as reserved unless actually sold before the opening of the show or exhibition, and that a copy of the act be printed, framed and posted on the door of the place of entertainment, is not a police regulation, but is an unwise, vexatious and unlawful interference with the rights of private property, and therefore void. District of Columbia v. Saville,* 1 MacArth., 582.

§ 112. Obscene literature. The law forbidding the depositing in the mails of any obscene or indecent publication is constitutional. United States v. Bennett, 16 Blatch., 342.

§ 113. Treaties made pursuant to authority granted by the constitution are the supreme law of the land, and state laws in conflict with such treaties are void. In re Parrott, 1 Fed. R., 481 (§§ 982-1007), See TREATIES.

§ 114. Amendment of charters.-The reserved power of amendment of a charter does not authorize the legislature to employ it as a means for violating the constitution and treaties of the Union. Ibid. See CORPORATIONS.

§ 115. Enjoining acts under void law. Where a person comes into court and asks that the officers of the government be prohibited from carrying out various provisions of the law which concern the details of a business he proposes to undertake, he cannot ask its interference by injunction, for fear that, in the execution of some of those provisions, a right guaran

IN GENERAL.

tied him by the constitution may be violated. There must be some unauthorized act done in the first place, or threatened. Mason v. Rollins,* 2 Biss., 99.

A suit against the governor of a state, to restrain him from $116. Suit against a state. making a grant in accordance with a law impairing the obligation of a prior contract, is not a suit against the state, and therefore not contrary to the eleventh amendment. Gray v. Davis, 1 Woods, 420. See COURTS; STATES.

§ 117. The eleventh amendment to the constitution, forbidding suits against a state by citizens of another state, is not violated by a suit brought against a board of state officers to restrain them from carrying out the provisions of an act which is unconstitutional as impairing the obligation of the complainant's contract. McComb v. Board of Liquidation,* 2 Woods, 48. § 118. Restitution to tax-payers-The state has power to direct a restitution to taxpayers of a county or other municipal corporation, of property exacted from them by taxation, into whatever form the property may be changed, so long as it remains in the possession of the municipality. The exercise of the power infringes upon no provision of the federal constitution. A law ordering the distribution of the stock of a railroad company, subscribed for by the county, among the tax-payers of the county, the stock having been paid for by taxation, is not unconstitutional. Commissioners v. Lucas,* 3 Otto, 108.

$119. Enforcement of act may be enjoined. When the circuit court of the United States declares to be unconstitutional a law repealing the charter of a corporation and making the exercise of the franchise granted by its charter a penal offense, it may restrain by injunction the enforcement of the repealing act by the officers charged with that function. State Lottery Co. v. Fitzpatrick,* 3 Woods, 222.

§ 120. Selection of jurors.— The act of the state of Louisiana of March 13, 1877, providing for the appointment, by the judges of the principal courts in the city of New Orleans, of two commissioners, whose duty it is made to select impartially from the citizens of the parish, qualified to vote, the names of not less than one thousand good and competent men to serve on juries; and requiring these names to be placed in a box, and from thence drawn the general panel for each term, is held not to be open to any constitutional objection. Ex parte Wells, 3 Woods, 128.

II. MISCELLANEOUS CASES ON THE POWERS OF

THE STATE AND FEDERAL GOV

ERNMENTS.

[See GOVERNMENT; STATES.]

1. In General.

SUMMARY Right of secession; treason against federal government, §§ 121, 124.- Transfer of bonds, § 122.- Power to reconstruct rebellious states, § 123.- Validity of acts of rebellious states, § 125.— Acts in aid of rebellion, § 126.- Temporary governments in rebellious states, § 127.- State militia; enforcing federal laws, §§ 128, 129.— Compacts between states, $ 130, 131.- Admission of Mississippi; navigable rivers, § 132.

§ 121. The Union is not a compact between the states, from which they may withdraw at pleasure, but a permanent, indissoluble union, by the constitution, which is the supreme law of the land. All persons, therefore, who made war upon the United States in aid of secession, and all giving aid to the rebellion, were traitors, and subject to punishment as such by act of congress. United States v. Cathcart, §§ 133-139. See STATES; WAR.

$122. The act of the national treasury department in dispensing with the necessity of procuring the signature of the governor of Texas to validate a transfer of bonds, which condition was imposed by the United States itself, did not prejudice the rights of that state, and no title to the bonds passed. Texas v. White, SS 140-160.

123. The authority of congress to re-establish its relations with rebellious state govern. ments is derived from the obligation of the United States to guaranty to each state a republican form of government, and in the exercise of such power it may exercise its discretion in its choice of means to accomplish the end. The government of Texas, therefore, organized under the Reconstruction Acts, was the lawful representative of the state. Ibid. See § 94. 124. The states are bound to the United States in a close union, and cannot withdraw from it at pleasure. Notwithstanding their ordinances of secession, the rebellious states throughout the rebellion remained states of the Union. Ibid.

125. All acts of the rebellious governments, necessary to peace and order among citizens, such as acts regulating marriage, conveyances of property, and remedies for injuries, etc., must be regarded as proceeding from actual though unlawful governments, and therefore valil; out all acts in furtherance of rebellion or in derogation of the just rights of citizens,

27

and acts of like nature, must be regarded as null and void. (a) Ibid. As to War of Rebellion, see WAR.

§ 126. The act of the legislature of Texas, in disposing of bonds of the United States which it held in consideration of cotton cards and medicines furnished the state after it had adopted the ordinance of secession, was clearly one in aid of the rebellion, and therefore the receivers of the bonds acquired no title thereto. Ibid.

§ 127, So long as the rebellion lasted, the president had the power to institute temporary governments within such insurgent districts as were occupied by federal troops, and to take measures for the restoration of faithful state governments. Ibid.

§ 128. While a state cannot pass independent laws creating and providing for the punishment of offenses of its citizens in refusing to obey the call of the general government to enter the federal service as state militiamen, after congress has legislated upon the subject, it can pass laws conferring upon its own tribunals the power of enforcing the laws of congress upon the subject, and punishing the offenses therein designated. Houston v. Moore, §§ 161190. See § 240.

§ 129. The act of Pennsylvania of March 28, 1814, providing for the punishment by state courts-martial of those refusing to obey the call of the president, according to the laws of congress, is constitutional. Ibid. As to Militia, see WAR.

§ 130. Though the constitution forbids any compact between the states, except with the consent of congress, yet where a state made a compact with the people of a portion thereof who desired to become a separate state, and afterwards congress passed an act, admitting it into the Union as a new state, expressly reciting this compact, such action amounted to consent by congress as demanded by the constitution, and the compact became binding. Green v. Biddle, § 191-206. See STATES; also § 320, infra.

§ 131. A state may surrender any of its sovereign attributes, provided the surrender is made by the people in their sovereign capacity; and a compact made between two states, by which it was stipulated that the laws of one should govern certain lands in the other, is binding. Ibid.

§ 132. The act of congress admitting the state of Mississippi into the Union, and providing that the navigation of the Mississippi and its navigable tributaries should remain free and unobstructed, was not intended to rob the state of any of its necessary attributes as an independent sovereign, nor to inhibit the power, inseparable from every efficient government, to devise and to execute measures for the improvement of the state, although such measures might induce or render necessary changes in the channels or courses of rivers within the state. Withers v. Buckley, §§ 207-209..

[NOTES.-See §§ 210-320.]

UNITED STATES v. CATHCART.

(Circuit Court for Ohio: 1 Bond, 556-571. 1864.)

Opinion by the COURT.

STATEMENT OF FACTS.-- In the first of these cases, a special demurrer to the indictment has been filed; and in the second, there is a motion to quash. The indictments in both cases are substantially the same in their structure; and the questions raised on the demurrer and in the motion to quash, being the same, it will be unnecessary to consider them separately, as the judgment in one case will be decisive of the other. The views now stated by the court have special reference to the grounds of demurrer in Cathcart's case.

The indictment contains two counts. The first count avers that there is now existing an open and public war or rebellion, carried on with force and arms by the so-called Confederate States of America, against the government and laws of the United States; and that the defendant, owing allegiance to the government of the United States, in violation of such allegiance has levied war against the same by banding together with others in military array; and thus has committed treason against the United States. The second count, after reciting the existence of the rebellion or war, as averred in the first count, charges that the defendant knowingly and wilfully conspired with others and

(a) Williams v. Bruffy, 6 Otto, 192, Hannauer v. Woodruff, 15 Wall., 439; Evans v. City of Richmond, Chase's Dec., 554; Daniels v. Tearney, 12 Otto, 418.

did assist and give aid and comfort to those in rebellion or war against the United States, and in the execution of his traitorous adhesion to the enemies of the United States committed several overt acts of treason which are specifically set forth, but which it is unnecessary here to recite.

The first count is based on the first section of the act of congress of July 17, 1862, to suppress insurrection, punish treason, etc., which provides that every person who shall hereafter commit the crime of treason 'against the United States, and shall be adjudged guilty thereof, shall suffer death or fine and imprisonment, as the court may direct. The second count is based on section 2 of said act, which declares "that if any person shall hereafter incite, set on foot, assist or engage in any rebellion or insurrection against the authority of the United States or the laws thereof, or shall give aid and comfort thereto, or shall engage in, or give aid and comfort to any such existing rebellion or insurrection, and be convicted thereof, shall be liable to fine or imprisonment, or both, at the discretion of the court." 12 Laws of U. S., 589.

There are several exceptions to the indictment which are set out in the special demurrer. The first one stated has been abandoned and need not be noticed. The second exception is for duplicity in the second count in averring a conspiracy of several persons to aid in several distinct offenses. 3. Misjoinder of a count for felony and for a misdemeanor. 4. No averment that the crimes charged were committed within any county in the southern district of Ohio. 5. Repugnance in both counts in averring the crimes charged to have been committed against the government of the United States and also the people of the United States. 6. The crimes are charged to have been committed against the allegiance of the defendant, when they can only be against obedience, and because of the agreement of the state of Ohio and of all the other states to the constitutional compact binding on the citizens of Ohio and of each state so long as the compact remained. 7. That treason or conspiracy against the United States, after the refusal of some of the states to continue the constitutional compact, are no longer possible.

The sixth and seventh causes of demurrer, involved also in the motion to quash, are yet to be considered. They have been recited, as set out in the demurrer, in a previous part of this opinion, and it is not necessary to restate them here. Both present substantially the same question, and may, therefore, be discussed together. They affirm that, from the facts alleged in the indictment, it is impossible that the crime of treason against the government of the United States can be committed. In a legal sense the demurrer admits the truth of the facts alleged in the indictment. One of these facts is, that the United States is now engaged in a war for the suppression of a rebellion against the government by the people of certain states, aiming at the overthrow of the constitution and the establishment of another government. It is insisted that the states in rebellion have abrogated the compact by which they were bound to the Union, and that, this compact being dissolved by their ordinances of secession, neither a citizen of one of the states thus seceding, nor of any state not involved in the acts of secession, can commit the crime of treason against the government of the United States.

In support of this position, certainly somewhat startling in its character, it is insisted that the constitution, instead of creating an actual and efficient government for the whole people of the United States, is a mere league or compact, from which any state, or any number of states, may at any time withdraw, with or without cause, and without or against the consent of the people of the