
                                 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 stato
 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 admininistered in the federal courts.
 110. Courts martial and impeachments.
 111. The IV Amendment.
 112. The V Amendment (a) Due process of law; (b) Jeopardy, ete.
 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 courts 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 behaviour, 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 defence."

The VII Amendment provides that "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 articles 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 is attempted to be
enforced by civil process, is entitled to an examination by an
independent authority to determine, upon a prima facia 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 be entirely 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 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
Consititution.(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 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
proeeedings 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
enforeed 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
enforcible 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 enforcible 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, colat=oversies "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
???? 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 donce 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, 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 illumimating 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, colour, 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
Leassee,(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 mo re
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, Porto 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 inerease, 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 in one 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
granted 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 a 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 Uinited 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 su 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 bein g 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 judment 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 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 Suprerae 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 judgrnents 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 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 has 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 criticise 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
endeavoured 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 slaves 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 judments 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 orginally 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 may
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 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 prevail over 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 aration 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 deeides 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 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 cases 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) 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 honour, 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 honour, 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 probibit 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 Charta. 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
Uiaited States the Supreme Court will issue a habeas corpus 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 imposting
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 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 proceediiags." 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 un-natural 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 non-performance 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 establishmient 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 for 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 defendent 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
defendent 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 Constitution 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.(276) 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 enforcible 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) ties.

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 administrater 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 proceding 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 electioin.(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 designated 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 has 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 trial 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 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 colouring 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 states.(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 constructiorn 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 qiterela,
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 enforcible 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 enforcible 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 enforcible 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 was 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 enforcible 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
ainy 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 enforcible 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 the 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.

(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. C o., 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)  MeElrath 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 Decisions, " 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 WAII.- 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. S" allso 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) O. & M. R. v. Wheeler, I Bl. 286; B. & O. 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 also 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 confine 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. see 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; Hooker 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. City, 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. & O. R., 151. id.
673 cf. Brown v. Trousdale, 138 id. 389; Bellaire v. B. & O. 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
jurisdiction. In re Duncan, 139 U. S. 449; Whitten 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. Kelley, 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, and of 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.

(156) 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 which 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; O. 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:
"Borderland 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;
Mississippi Mills v. Cohn, 150 id. 202; Hollins v. B. C. & I. Co.,
ibid. 371; cf. Scotty 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 "has 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 thier 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 laiad. 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 Charta 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 foreed 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: 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
may 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) Reynolds 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, 446. 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 the 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 honour
and good faith, and cannot be made 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
officers 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 governs the limitation of actions
applies to actions brought originally in the courts of the United
States, and also to actions removed thereto from 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 liable in damages to any party injured by such neglect or
refusal: Amy v, Supervisors, 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 postmaster 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 Is 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 warrant issued by 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 coordinate 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
sgpecific 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, Ill 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 administration of the estate of a
living person: Scott v. MeNeal, 154 U. S. 34.

(323) Duncan v. Missouri, 152 U. S. . 377; Holden v. Hardy, 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. Georgia, 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. Illinois, 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; Arbuckle v. Blackburn, 191 id. 405.

(341) In re Manning, 139 U. S. 504.

(342) Palmer 7. McMahon, :L33 U. S. 660.

(343) McMillen 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. Brockton 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; O. O. 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 and 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 tT. 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.

(418) Dupasseur v. Roebereau, 21 Wall. 130.

