The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Elliot's Debates, Volume 4]

The Debates in the Several State Conventions on the Adoption of the Federal Constitution

“The Debates in the Several State Conventions on the Adoption of the Federal Constitution is a five-volume collection compiled by Jonathan Elliot in the mid-nineteenth century. The volumes remain the best source for materials about the national government's transitional period between the closing of the Constitutional Convention in September 1787 and the opening of the First Federal Congress in March 1789. On September 17, 1787, the Continental Congress accepted the recommendation of the Constitutional Convention and agreed to distribute the proposed constitution to the states; each state was then to elect delegates to a state convention to approve or disapprove the new constitution. The Constitution would take effect upon ratification by the conventions of nine of the thirteen states.”

“Elliot's Debates collects the documents pertinent to the discussions on ratification: the Declaration of Independence, the Articles of Confederation, the Journal of the Constitutional Convention (from a version that is earlier and less accurate than that in The Records of the Federal Convention of 1787), the text of the proposed Constitution, and the debates in the various states. The Federalist Papers also presents a vital part of the debate over the Constitution.”

- Elliot's Debates --DIGEST OF THE CONSTITUTION. Elliot's Debates, Volume 1.

"The question was then put, that the House do agree to the said resolution as amended, viz.

"Resolved, That the Clerk be directed to procure as many copies of Elliot's Debates on the adoption of the Federal Constitution, as shall be sufficient to supply each new member with a copy; and, also, that the Clerk of the House furnish to each member of the present House of Representatives, who has not already received them, a copy of the volume of Land Laws, and of the Journals to the end of the thirteenth Congress, which were published by order of Congress,

"And passed in the affirmative."

- Journal of the House of Representatives of the United States, January 13, 1834.

Also See:

"Rights of the citizen declared to be --".

DIGEST OF DECISIONS IN THE COURTS OF THE UNION, INVOLVING CONSTITUTIONAL PRINCIPLES.

• 1. The individual states have a constitutional right to pass naturalization laws, provided they do not contravene the rule established by the authority of the Union. Collett v. Collett, 2 Dall. 294. But see United States v. Villatto, Ibid. 370.

• 2. The 2d section of the 3d article of the Constitution, giving original jurisdiction to the Supreme Court in cases affecting consuls, does not preclude the legislature from vesting a concurrent jurisdiction in inferior courts. United States v. Ravara, Dall. 297.

  Every act of the legislature repugnant to the Constitution is, ipso facto, void; and it is the duty of the court so to declare it. Vanhorne's Lessee v. Dorrance, 2 Dall. 304.

• 3. It is contrary to the letter and spirit of the Constitution to divest one citizen of his right, and vest it in another, without full compensation; and if the legislature may do so, upon full indemnification, it cannot of itself constitutionally determine upon the amount of the compensation. Ibid.

• 4. The constitution of England is at the mercy of Parliament. Every act of Parliament is transcendent, and must be obeyed. Ibid. 308.

• 5. In America, the ease is widely different. Every state of the Union has its constitution, reduced to written exactitude. A constitution is the form of government delineated by the mighty hand of the people, in which certain first principles of fundamental law are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the legislature, and can be revoked or altered only by the power that made it. The life-giving principle and the death-dealing stroke must proceed from the same hand. The legislatures are creatures of the Constitution; they owe their existence to the Constitution; they derive their powers from the Constitution. It is their commission, and therefore all their acts must be conformable to it, or else they will be void. The Constitution is the work or will of the people themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the legislature, in their derivative and subordinate capacity. The one is the work of the creator, and the other of the creature. The Constitution fixes limits to the exercise of the legislative authority, and prescribes the orbit in Which it must move. Whatever may be the case in other countries, yet in this there can be no doubt that every act of the legislature repugnant to the Constitution is absolutely void. Ibid.

• 6. The right of trial by jury is a fundamental law, made sacred by the Constitution, and cannot be legislated away. Ibid. 309.

• 7. Whether the individual states have concurrent authority with the United States to pass naturalization laws, quoere? United States v. Villatto, 2 Dall. 370. See ante, No. 1.

• 8. Congress cannot by law assign the judicial department any duties but such as are of a judicial character; e. g., appointing the judges of the Circuit Court to receive and determine upon claims of persons to be placed on the pension list. Hayburn's Case, 2. Dull. 409.

• 9. A tax on carriages is not a direct tax, within the meaning of the Constitution; and the act of Congress of 5th June, 1794, ch. 219, (2 Bior. 414,) laying a tax on carriages, was constitutional and valid. Hylton v. United States, 3 Dull. 171.

• 10. A treaty, under the 6th article, sect. 2, of the Constitution, being the supreme law of the land, the treaty of peace, in 1783, operates as a repeal of all state laws, previously created, inconsistent with its provisions. Ware, Adm'r. v. Hylton, 3 Dull. 199.

• 11. The prohibition, in the Federal Constitution, of ex post facto laws, extends to penal statutes only, and does not extend to cases affecting only the civil rights of individuals. Calder et Ux. v. Bull et Ux., 3 Dall. 386.

• 12. A resolution or law of the legislature of Connecticut, setting aside a decree of a court, and granting a new trial, to be hail before the same court, is not void, under the Constitution, as an ex post facto law. Ibid.

• 13. It is a self-evident proposition that the several state legislatures retain all the powers of legislation delegated to them by the state constitutions, which are not expressly taken away by the Constitution of the United States. Per Chase, J. Ibid.

• 14. A law that punishes a citizen for an innocent action, or, in other words, for an act which, when done, was in violation of no existing law; a law that destroys or impairs the lawful private contracts of citizens; a law that makes a man judge in his own cause; or a law that takes property from A, and gives it to B, is contrary to the great first principles of the social compact, and cannot be considered as a rightful exercise of legislative a authority. The genius, the nature, the spirit of our state governments amount to a prohibition of such acts of legislation, and the general principles of law and reason forbid them. Per Chase, J. Ibid.

• 15. The words and intent of the prohibition embrace, 1st, every law that makes an action done before the framing of the law, and which was innocent when done, criminal, and punishes such action; 2d, every law that aggravates a crime, or makes it greater than it was when committed; 3d, every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed; 4th, every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender. Per Chase, J. Ibid.

• 16. If any act of Congress, or of the legislature of a state, violates the constitutional provisions, it is unquestionably void. If, on the other hand, the legislature of the Union, or the legislature of any member of the Union, shall pass a law within the general scope of their constitutional power, the court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. If the legislature pursue the a authority delegated to them, their acts are valid; if they transgress the boundaries of that authority, their acts are invalid. Per Iredell, J. Ibid.

• 17. An act of a state legislature, banishing the person and confiscating the property of certain individuals therein named as traitors, passed before the establishment of the Federal Constitution, is not void. Cooper v. Telfair, 4 Dall. 14.

• 18. The words of the Constitution, declaring that "the judicial power shall extend to all cases of admiralty and maritime jurisdiction," must be taken to refer to the admiralty and maritime jurisdiction of England. United States v. M'Gill, 4 Dall. 426, 429.

• 19. The Constitution, art. 2, sect. 2, 3, with regard to the appointment and commissioning of officers by the President, seems to contemplate three distinct operations--1. The nomination: this is the sole act of the President, and is completely voluntary. 2. The appointment: this is also the act of the President, though it can only be performed by and with the advice and consent of the Senate. 3. The commission: to grant a commission to a person appointed, might perhaps be deemed a duty enjoined by the Constitution. Marbury v. Madison, 1 Cranch, 137, 155.

• 20. The acts of appointing to office, and commissioning the person appointed, are distinct acts. Ibid. 156.

• 21. The Constitution contemplates cases where the law may direct the President to commission an officer appointed by the courts, or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which, perhaps, could not be legally refused. Ibid.

• 22. Where the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled; it has conferred legal rights which cannot be resumed. Ibid. 162.

• 23. The question whether the legality of the act of the heads of departments be examinable in a court of justice, or not, must always depend on the nature of that act. Ibid. 165. Where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act on cases in which the executive possesses a confidential or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend on the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy. Ibid.

• 24. Where the head of a department acts in a case in which executive discretion is to be exercised, in which he is the mere organ of executive will, any application to a court to control, in any respect, his construct, would be rejected without hesitation. But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which the President cannot lawfully forbid, and therefore is never presumed to have forbidden,--as, for example, to record a commission, or a patent for land, which has received all the legal solemnities, or to give a copy of such record,--in such cases, the courts of the country are no further excused from the duty of giving judgment that right be done to an injured individual, than if the same services were performed by a person not at the head of a department. Ibid. 171.

• 25. The authority given to the Supreme Court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, is not warranted by the Constitution. Ibid. 176.

• 26. An act of Congress repugnant to the Constitution cannot become the law of the land. Ibid. 176, 177, 180.

• 27. An act of Congress cannot invest the Supreme Court with an authority not warranted by the Constitution. Ibid. 175, 176.

• 28. A contemporary exposition of the Constitution, practised and acquiesced under for a period of years, fixes the construction, and the Court will not shake or control it. Stuart v. Laird, 1 Cranch, 299.

• 29. An act of Congress giving to the United States a preference over all other creditors, in all cases, is constitutional and valid. United States v. Fisher et Al. 2 Cranch, 358, 395.

• 30. Such preference exists in a case where no suit has been instituted; as, upon an assignment b a bankrupt, the United States must be first paid. Ibid.

• 31. The legislature of a state cannot annul the judgment, or determine the jurisdiction, of the courts of the United States. United States v. Peters, 5 Cranch, 115.

• 32. In an action of ejectment between two citizens of the state where the lands lie, if the defendant set up an outstanding title in a British subject, which he contends is protected by treaty, and that therefore the title is out of the plaintiff, and the highest state court decides against the title thus set up, it is not a case in which a writ of error lies to the Supreme Court of the United States. Owing v. Norwood's Lessee, 5 Cranch, 344.

• 33. This is not a case arising under the treaty, and the words of the judiciary act must be restrained by those of the Constitution. Ibid.

• 34. Whenever a right grows out of, or is protected by, a treaty, it is sanctioned against all the laws and judicial decisions of the states; and whoever may have this right, it is protected. But if the person's title is not affected by the treaty, if he claims nothing under the treaty, his title cannot be protected by the treaty. Ibid. 348.

• 35. If a title be derived from a legislative act, which the legislature might constitutionally pass, if the act be clothed with all the requisite forms of law, a court sitting as a court of law cannot sustain a suit by one individual against another, founded on the allegation that the act is a nullity in consequence of the impure motives which influenced certain members of the legislature which passed the act. Fletcher v. Peck, 6 Cranch, 87, 131.

• 36. One legislature, so far as respects general legislation, is competent to repeal any act which a former legislature was competent to pass; and one legislature cannot abridge the powers of a succeeding legislature. But if an act be done under a law, a succeeding legislature cannot undo it. Ibid. 135.

• 37. When a law is, in its nature, a contract, and absolute rights have vested under that contract, a repeal of the law cannot divest those rights. Ibid.

• 38. It may well be doubted whether the nature of society and government does not prescribe some limits to the legislative power; and if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation? Ibid.

• 39. The question whether a law be void for its repugnancy to the Constitution, is a question which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other. Ibid. 128.

• 40. Where an estate has passed, under a legislative grant, into the hands of a purchaser for a valuable consideration, without notice, the state is restrained, either by general principles which are common to our free institutions, or by the particular provisions of the Constitution of the United States, from passing a law whereby the estate so purchased can be impaired and invalidated. Ibid. 139.

• 41. The appellate powers of the Supreme Court are given by the Constitution; but they are limited and regulated by the judiciary act and other acts of Congress. Durousseau v. United States, 6 Cranch, 307.

• 42. An act of the legislature, declaring that certain lands which should be purchased for the Indians should not thereafter be subject to any tax, constituted a contract, which could not be rescinded by a subsequent legislative act; such repealing act being void under that clause of the Constitution of the United States which prohibits a state from passing any law impairing the obligation of contracts. New Jersey v. Wilson, 7 Cranch, 164.

• 43. In expounding the Constitution of the United States, a construction ought not lightly to be admitted which would give to a declaration of war an effect in this country it does not possess elsewhere, and which would fetter that exercise of entire discretion respecting enemy's property, which may enable the government to apply to the enemy the rule that he applies to us. Brown v. United States, 8 Cranch, 110.

• 44. The power of making "rules concerning captures on land and water," which is superadded, in the Constitution, to that of declaring war, is not confined to captures which are extra-territorial, but extends to rules respecting enemy's property found within the territory, and is an express grant to Congress of the power of confiscating enemy's property, found within the territory at the declaration of war, as an independent substantive power, not included in that of declaring war. Ibid.

• 45. The legislature may enact laws more effectually to enable all sects to accomplish the great objects of religion, by giving them corporate rights for the management of their property, and the regulation of their temporal as well as spiritual concerns. Terret et Al. v. Taylor et Al. 6 Cranch, 43.

• 46. Consistently with the Constitution of Virginia, the legislature could not create or continue a religious establishment which should have exclusive rights and prerogatives, or compel the citizens to worship under a stipulated form or discipline, or to pay taxes to those whose creed they do not conscientiously believe. But the free exercise of religion is not restrained by aiding, with equal attention, the votaries of every sect to perform their own religious duties, or by establishing funds for the support of ministers, for public charities, for the endowment of churches, or for the sepulture of the dead. Nor did either public or constitutional principles require the abolition of all religious corporations. Ibid.

• 47. The public property acquired by the Episcopal churches under the sanctions of the law did not, at the revolution, become the property of the state. The title was indefeasibly vested in the churches, or their legal agents. The dissolution of the form of government did not involve in it a dissolution of civil rights, or an abolition of the common law. Ibid.

• 48. A legislative grant and confirmation vests an indefeasible, irrevocable title; is not revocable in its own nature, or held only durante bene placito. Ibid.

• 49. In respect to public corporations, which exist only for public purposes, as counties, towns, cities, &c., the legislature may, under proper limitations, have a right to change, modify, enlarge, or restrain them; securing, however, the property for the uses of those for whom, and at whose expense, it was originally purchased. Ibid.

• 50. But the legislature cannot repeal statutes creating private corporations, or confirming to them property already acquired under the faith of previous laws, and by such repeal vest the property exclusively in the state, or dispose of the same to such purposes as they may please, without the consent or default of the corporators. Ibid.

• 51. Congress cannot vest any portion of the judicial power of the United States, except in courts ordained and established by itself. Martin v. Hunters' Lessee, 1 Wheat. 304, 380.

• 52. The 25th sect. of the judiciary act of September 24, 1789, ch. 20, (2 Bior. 56,) is supported by the letter and spirit of the Constitution. Ibid.

  The Constitution of the United States was ordained and established, not by the United States in their sovereign capacities, but, as the preamble declares, by the people of the United States. Ibid. 324.

• 53. It was competent for the people to invest the national government with all the powers which they might deem proper and necessary, to extend or limit these powers at their pleasure, and to give to them a paramount and supreme authority. Ibid.

• 54. The people had a right to prohibit to the states the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact; to make the powers of the state governments, in given cases, subordinate to those of the nation; or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. Ibid.

• 55. The Constitution was not, therefore, necessarily carved out of existing state sovereignties, nor a surrender of powers already existing in the state governments. Ibid.

• 56. On the other hand, the sovereign powers vested in the state governments by their respective constitutions, remain unaltered and unimpaired, except so far as they are granted to the government of the United States. Ibid.

• 57. The government of the United States can claim no powers which are not granted to it by the Constitution, either expressly or by necessary implication. Ibid.

• 58. The Constitution, like every other grant, is to have a reasonable construction, according to the import of its terms; the words are to be taken in their natural and obvious sense, and not in a sense either unreasonably restricted or enlarged. Ibid.

• 59. The power of naturalization is exclusively in Congress. Chirac v. Chirac, 2 Wheat. 359.

  See ante, No. 1.

• 60. The grant, in the Constitution, to the United States, of all cases of admiralty and maritime jurisdiction, does not extend to a cession of the waters in which those cases may rise, or of the general jurisdiction over them. United States v. Bevans, 3 Wheat. 336.

• 61. Congress may pass all laws which are necessary for giving the most complete effect to the exercise of the admiralty and maritime jurisdiction, granted in the Constitution to the United States; but the general jurisdiction, subject to this grant, adheres to the territory, as a portion of sovereignty not yet given away, and the residuary powers of legislation still remain in the state. Ibid.

• 62. Congress has power to provide for the punishment of offences committed by persons serving on board a ship of war of the United States, wherever that ship may be: but Congress has not exercised that power in the case of a ship lying in the waters of the United States. Ibid.

• 63. Since the adoption of the Constitution of the United States, a state has authority to pass a bankrupt law, (provided such law does not impair the obligation of contracts,) provided there be no acts of Congress in force to establish a uniform system of bankruptcy conflicting with such law. Sturges v. Crowninshield, 4 Wheat. 122. Contra, Golden v. Prince, 3 Wash. C. C. R. 313, 5 Hall's Am. L Journ. 502. S.C. Accord, Adams v. Storey, 6 Hall's Am. L. Journ. 474.

• 64. The mere grant of a power to Congress does not imply a prohibition on the states to exercise the same power. Ibid.

• 65. Whenever the terms in which a power is granted to Congress require that it should be exercised exclusively by Congress, subject is as completely 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 upon it. Ibid.

• 66. To release the future acquisitions of a debtor from liability to a contract, impairs its obligation. Ibid. 198.

• 67. Statutes of limitation, and usury laws, unless retroactive in their effect, do not impair the obligation of contracts, within the meaning of the Constitution, Ibid.

• 68. The right of the states to pass bankrupt laws is not extinguished by the enactment of a uniform bankrupt law throughout the Union by Congress; it is only suspended. The repeal of that law cannot confer that power upon the states, but it removes a disability to exercise, which was created by the act of Congress. Ibid.

• 69. The act of the legislature of the state of New York, of April 3d, 1811, which not only liberated the person of the debtor, but discharged him from all liability for any debt contracted previous to his discharge, on his surrendering his property in the manner prescribed, so far as it attempted to discharge the contract, is a law impairing the obligation of contracts within the meaning of the constitution of the United States, and is not a good plea in bar of an action brought upon such contract. Ibid.

• 70. A state bankrupt or an insolvent law, which not only liberate the person of the debtor, but discharges him from all liability for the debt, so far as it attempts to discharge the contract, is repugnant to the Constitution of the United States; and it makes no difference, whether the law was passed before or after the debt was contracted. M'Millan v. M'Neil, 4 Wheat. 209

• 71. The act of Assembly of Maryland, of 1793, incorporating the Bank of Columbia, and giving to the corporation a summary process by execution, in the nature of an attachment, against its debtors, who have, by an express consent in writing, made the bonds, bills, or notes, by them drawn or endorsed, negotiable at the bank, is not repugnant to the Constitution of the United States, or of Maryland. Bank of Columbia v. Okely, 4 Wheat. 316.

• 72. Congress has power to incorporate a bank. M'Cullock v. Maryland, 4 Wheat. 316.

• 73. The government of the Union is a government of the people; it emanates from them; its powers are granted by them, and are to be exercised directly on them, and for their benefit. Ibid.

• 74. The government of the Union, though limited in its powers, is supreme within its sphere of action; and its laws, when made in pursuance of the Constitution, form the supreme laws of the land. Ibid.

• 75. The government, which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means. Ibid.

• 76. There is nothing in the Constitution of the United States, similar to the Articles of Confederation, which excludes incidental or implied powers. Ibid.

• 77. If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect. Ibid.

• 78. The power of establishing a corporation is not a distinct sovereign power or end of government, but only the means of carrying into effect other powers which are sovereign. Whenever it becomes an appropriate means of exercising any of the powers given by the Constitution to the government of the Union, it may be exercised by that government. Ibid.

• 79. If certain means to carry into effect any of the powers expressly given by the Constitution to the government of the Union, be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance. Ibid.

• 80. The act of April 10, 1816, ch. 44 (3 Stor. 1547,) to "incorporate the subscribers to the Bank of the United States," is a law made in pursuance of the Constitution. Ibid.

• 81. The Bank of the United States has, constitutionally, a right to establish its branches, or offices of discount and deposit, within any state. Ibid.

• 82. The state within which such branch may be established cannot constitutionally tax that branch. Ibid.

• 83. The state governments have no right to tax any of the constitutional means employed by the government of the Union to execute its constitutional powers. Ibid.

• 84. The states have no power, by taxation otherwise, to retard, impede, burden, or in any manner control, the operation of the constitutional laws enacted by Congress to carry into effect the powers vested in the national government. Ibid.

• 85. This principles does not extend to a tax paid by the real property of the Bank of the United States, in common with the other real property in a particular state; nor to a tax imposed on the proprietary interest which the citizens of that state may hold in this institution, in common with other property of the same description throughout the state. Ibid.

• 86. The charter granted by the British crown to the trustees of Dartmouth College, in New Hampshire, in the year 1769, is a contract within the meaning of that clause of the Constitution of the United States, (art. 1, sect. 10,) which declares that no state shall make any law impairing contracts; and this charter was not dissolved by the revolution. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518.

• 87. An act of the legislature of New Hampshire, altering the charter in a material respect, without the consent of the corporation, is an act impairing the obligation of a contract, and is unconstitutional and void. Ibid.

• 88. The act of Congress of March 3, 1819, ch. 76, § 35, referring to the law of nations for a definition of the crime of piracy, is a constitutional exercise of the power of Congress to define that crime. United States v. Smith, 5 Wheat. 153.

• 89. Congress has authority to impose a direct tax on the District of Columbia, in proportion to the census directed to be taken by the Constitution. Lufborough v. Blake, 5 Wheat. 317.

• 90. The power of Congress to levy and collect taxes, duties, imposts, and excise, is coextensive with the territory of the United States. Ibid.

• 91. the power of Congress to exercise exclusive legislation, in all cases whatsoever, within the District of Columbia, includes the power of taxing it. Ibid.

• 92. Congress has no power to exempt any state from its due share of the burden of taxes, but is not bound to extend a direct tax to the District and territories. Ibid.

• 93. The present Constitution of the United States did not commence its operation until the first Wednesday in March, 1789; and the provision that "no state shall make any law impairing the obligation of contracts," does not extend to a law enacted before that day, and operating upon rights of property vested before that time. Owings v. Speed et Al. 5 Wheat. 420.

• 94. An act of a state legislature, which discharges a debtor from all liability for debts contracted previous to his discharge, on his surrendering his property for the benefit of his creditors, is a law impairing the obligation of a contract, within the meaning of rise Constitution of the United States; and it is immaterial that the suit was brought in a state court of a state of which both parties were citizens, where the contract was made, and the discharge obtained and where they continued to reside until the suit was brought. Farmers' and Mechanics' Bank of Pennsylvania v. Smith, 6 Wheat. 131.

• 95. The Supreme Court has, constitutionally, appellate jurisdiction, under the 25th sect. of the judiciary act of September 24, 1789, ch. 20, (2 Bior. 56,) from the final judgment or decree of the highest court of law or equity of a state having jurisdiction of the suit, where is drawn in question the validity of a treaty, or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of; or an authority exercised under, any state, on the ground of their being repugnant to the Constitution, treaties and laws of the United States, and the decision is in favor of their validity; or of the Constitution, or of a treaty of, or of a statute of, or a commission held under, the United States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed by either party, under the Constitution, treaty, stature, or Cohens v. Virginia, 6 Wheat. 264.

• 96. It is no objection to the exercise of this appellate jurisdiction, that one of the parties is a state, and the other a citizen of that state. Ibid.

• 97. The 2d section of the 3d article of the Constitution defines the extent of the judicial power of the United States. Jurisdiction is given to the courts of the United States in two classes of cases. In the first, their jurisdiction depends on the character of the cause, whoever may be the parties. This class comprehends "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." In the second class, the jurisdiction depends entirely on the character of the parties. In this class are comprehended "controversies between two or more states, between a state and citizens of another state," and "between a state and foreign states, citizens or subjects" If these be the parties it is state and foreign states, citizens entirely unimportant what may be the subject of the controversy; be it what it may, these parties have a constitutional right to come into the courts of the Union. Ibid. 378.

• 98. A case in law or equity consists of the rights of the one party as well as of the other, and is said to arise under the Constitution or a law of the United States, whenever its correct decision depends on the construction of either. Ibid.

• 99. The judicial power of every well-constituted government must be extensive with the legislative, and must be capable of deciding every judicial question which grows out of the Constitution and laws. Ibid.

• 100. Where the words of the Constitution confer only appellate jurisdiction upon the Supreme Court, original jurisdiction is most clearly not given; but where the words admit of appellate jurisdiction, the power to take cognizance of the suit originally does not necessarily negative the power to decide upon it on an appeal, if it may originate in a different court. Ibid. 397.

• 101. In every case to which the judicial power extends, and in which original jurisdiction is not expressly given, that power shall be exercised in the appellate, and only in the appellate, form. The original jurisdiction of the Supreme Court cannot be enlarged, but its appellate jurisdiction may be exercised in every case, cognizable under the 3d article of the Constitution, in the federal courts, in which original jurisdiction cannot be exercised. Ibid.

• 102. Where a state obtains a judgment against an individual, and the court rendering such judgment overrules a defence set up under the Constitution or laws of the United States, the transfer of the record into the Supreme Court, for the sole purpose of inquiring whether the judgment violates the Constitution or laws of the United States, cannot be denominated a suit commenced or prosecuted against the state whose judgment is so far reëxamined, within the 11th amendment of the Constitution of the United States. Ibid.

• 103. The act of Kentucky, of February 27, 1797, concerning occupying claimants of land, whilst it was in force, was repugnant to the Constitution of the United States. It was, however, repealed by a subsequent act of January 31, 1812. This last act is also repugnant to the Constitution of the United States, being in violation of the compact between the states of Virginia and Kentucky, contained in the act of the legislature of Virginia, December 18, 1789, and incorporated into the Constitution of Kentucky. Green et Al. v. Biddle; 8 Wheat. 1.

• 104. The objection to a law, on the ground of its impairing the obligation of a contract, can never depend on the extent of the change which the law may make in it; any deviation from its terms, by postponing or accelerating the period of performance which it prescribes, imposing conditions not expressed in the contract, or dispensing with the performance of those which are, however minute, or apparently immaterial in their effect upon the contract of the parties, impairs its obligation. Ibid.

• 105. The compact between the States of Kentucky and Virginia of 1789--1790, is valid and binding upon the parties, and has, within the meaning of the Constitution of the United States, received the assent of Congress, by act of February 4, 1791, ch. 78, (2 Bior. 191.) Ibid.

• 106. This compact is not invalid on the ground of its containing limitations, or a surrender of sovereign rights. Ibid.

• 107. A compact between two states is a contract within that clause of the Constitution which prohibits states from passing any laws impairing the obligation of contracts. Ibid.

• 108. The several acts of the legislature of the state of New York, granting and securing to Robert R. Livingston and Robert Fulton the exclusive right of navigating the waters within the jurisdiction of that state, with boats moved by fire or steam, for the periods therein specified, are in collision with a constitutional act of Congress, and so far repugnant to the Constitution of the United States, and void. Gibbons v. Ogden, 9 Wheat. 1, 209, 210.

• 109. The framers of the Constitution must be understood to have employed words in their natural sense, and to have intended what they have said; and in construing the extent of the powers which it creates, there is no other rule than to consider the language of the instrument which confers them, in connection with the purposes for which they were conferred. Ibid. 188, 189.

• 110. In the clause of the Constitution of the United States, which declares that "Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes," the word "commerce" comprehends "navigation;" and a power to regulate navigation is as expressly granted as if that term had been added to the word "commerce." Ibid. 189, 193.

• 111. It is a rule of construction that exceptions from a power mark its extent. Ibid. 191.

• 112. The power to regulate commerce extends to every species of commercial intercourse between the United States and foreign nations, and among the several states. Ibid. 193.

• 113. It does not comprehend that commerce which is completely internal--which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states. Ibid. 194.

• 114. But it does not stop at the jurisdictional lines of the several states; it must be exercised wherever the subject exists, and must be exercised within the territorial jurisdiction of the several states. Ibid. 195, 196.

• 115. This power to regulate commerce is the power to prescribe the rule by which commerce is to be governed. Ibid.

• 116. Like all other powers vested in Congress, it is complete in itself, may be exercised to its utmost extent, and has no other limitations than such as are prescribed in the Constitution. Ibid.

• 117. The authority of Congress to lay and collect taxes does not interfere with the power of the states to tax for the support of their own governments; nor is the exercise of that power by the states an exercise of any portion of the power that is granted to the United States. Ibid. 199.

• 118. But when a state proceeds to regulate commerce with foreign nations, or among the several states, it is exercising the very power that is granted to Congress.

• 119. The power of laying duties on imports or exports is considered, in the Constitution, as a branch of the taxing power, and not of the power to regulate commerce. Ibid. 201.

• 120. The inspection laws, quarantine laws, health laws of every description, laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, &c., are not in the exercise of a power to regulate commerce, within the language of the Constitution. Ibid. 203.

• 121. Although Congress cannot enable a state to legislate, it may adopt the provisions of a state on any subject. Ibid. 207.

• 122. It seems that the power to regulate implies, in its nature, full power over the thing to be regulated, and excludes necessarily the action of all others that would perform the same operation on the same thing. Ibid. 209.

• 123. When the legislature attaches certain privileges and exemptions to the exercise of a right over which its control is absolute, the law must imply the power to exercise the right; and therefore the act on the subject of the coasting trade implies an authority to licensed vessels to carry on that trade. Ibid. 212.

• 124. The license, under that law, is a legislative authority to the licensed vessel to be employed in the coasting trade, and is not intended merely to confer the national character: that character is conferred by the enrolment, not by the license. Ibid. 214.

• 125. The power to regulate commerce extends as well to vessels employed in carrying passengers as to those employed in transporting property. Ibid. 215.

• 126. It extends equally to vessels propelled by steam, or fire, as to those navigated by the instrumentality of wind and sails. Ibid. 219.

• 127. The clause in the act of incorporation of the Bank of the United States which authorizes the bank to sue in the federal courts, is warranted by the 3d article of the Constitution of the United States, which declares "that the judicial power shall extend to all cases in law and equity arising under the Constitution, the laws of the United States, or treaties made, or which shall be made, under their authority." Osborn et Al. v. Bank of the United States, 9 Wheat. 733.

• 128. The executive department may constitutionally execute every law which the legislature may constitutionally make, and the judicial department may receive from the legislature the power of construing every such law. Ibid.

• 129. The 3d article of the Constitution of the United States enables the judicial department to receive jurisdiction to the full extent of the Constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is Capable of acting only when the subject is submitted to it by a party who asserts his rights in the form proscribed by law. It then becomes a case. Ibid.

• 130. In those cases in which original jurisdiction is given to the Supreme Court, the judicial power of the United States cannot be exercised in its appellate form. In every other case, the power is to be exercised in its original or appellate form, or both, as the wisdom of Congress may direct. Ibid.

• 131. With the exception of those cases in which original jurisdiction is given to the Supreme Court, there is none to which the judicial power extends from which the original jurisdiction of the inferior courts is excluded by the Constitution. Ibid.

• 132. The Constitution establishes the Supreme Court, and defines its jurisdiction. It enumerates cases in which jurisdiction is original and exclusive, and then defines that which is appellate, but does not insinuate that, in any such case, the power cannot be exercised in its original forms by courts of original jurisdiction,

• 133. The postmaster-general cannot sue in the federal courts under that part of the Constitution which gives jurisdiction to those courts in consequence of the character of the party, nor is he authorized to sue by the judiciary act he comes into the courts of the United States under the authority of an act of Congress, the constitutionality of which rests upon the admission that his suit is a case arising under the law of the United States. Ibid.

• 134. The clause in the patent law authorizing suits in the Circuit Courts stands on the principle that they are cases arising under a law of the United States. Ibid.

• 135. Jurisdiction is neither given nor ousted by the relative situation of the parties concerned in interest, but by the relative situation of the parties on the record; consequently the 11th amendment to the Constitution, which restrains the jurisdiction of the federal courts over suits against states, is limited to those suits in which a state is a party on the record. Ibid. Bank of the United States v. Planters' Bank of Georgia. Ibid. 904, S. P.

• 136. The Circuit Courts of the United States have jurisdiction of a bill in equity, filed by the Bank of the United States for the purpose of protecting the bank in the exercise of its franchises, which are threatened with invasion and destruction trader an unconstitutional state law; and, as the state itself cannot be made a defendant, it may be maintained against the officers and agents of the state who are appointed to execute such law. Ibid.

• 137. The act of February 28, 1795, ch. 277, (2 Bior. 479,) to provide for calling out the militia, to execute the laws of the Union, to suppress insurrections, and repel invasions, is within the constitutional authority of Congress. Martin v. Mott, 12 Wheat. 19.

• 138. The power granted to Congress, by the Constitution, "to establish uniform laws on the subject of bankruptcy throughout the United States," does not exclude the right of the states to legislate on the same subject, except when the power is actually exercised by Congress, and the state laws conflict with those of Congress. Ogden v. Saunders, 12 Wheat. 213.

• 139. A state bankrupt or insolvent law, which discharges both the person of the debtor and his future acquisitions of property, is not "a law impairing the obligation of contracts" so far as respects debts contracted subsequent to such law. Ibid.

• 140. But a certificate of discharge under such law cannot be pleaded in bar of an action brought by a citizen of another state in the courts of the United States, or of any ether state than that where the discharge was obtained. Ibid.

• 141. The states have a right to regulate or abolish imprisonment for debt, as a part of the remedy for enforcing the performance of contracts. Mason v. Haile, 12 Wheat. 370.

• 142. An act of a state legislature, requiring all importers of foreign goods by the bale or package, &c., and other persons selling the same by wholesale, bale or package, &c., to take out a license, for which they shall pay fifty dollars, and in case of neglect or refusal to take out such license, subject them to certain forfeitures and penalties, is repugnant to that provision of the Constitution of the United States which declares that "no state shall, without the consent of Congress, lay any impost, or duty on imports and exports, excepting what may be absolutely necessary for executing its own inspection laws;" and also to that which declares that Congress shall have power to regulate commerce with foreign nations, among the several states, and with the Indian tribes. Brown et Al. v. State of Maryland, 12 Wheat. 419.

• 143. It is extremely doubtful Whether the legislature can constitutionally impose upon a judge of the Supreme Court of the United States the authority or duty to hold a District Court. There is a great difference between giving new jurisdiction to a court of which such judge is a member, and appointing him pro hac vice to a new office. Nor is there any sound distinction between an appointment to a new office, and an appointment to perform the duties of another office, while it remains a separate and distinct office. Ex parte United States, 1 Gallis. 338.

• 144. The act of New Hampshire of June 19, 1805, which allows to tenants the value of improvements, &c., on recoveries against them, if it applies to past improvements, is so far unconstitutional and void. Society for the Propagation, &c. v. Wheeler et Al. 2 Gallis. 105.

• 145. The expressions "admiralty and maritime jurisdiction," in the Constitution of the United States, give jurisdiction of all things done upon and relating to the sea, or, in other words, all transactions and proceedings relative to commerce and navigation, and to damages or injuries upon the sea. De Corvio v. Boit et Al. 2 Gallis. 308, 468.

• 146. The delegation of cognizance "of all civil causes of admiralty and maritime jurisdiction" to the courts of the United States, comprehends all maritime contracts, torts, and injuries. The latter branch is necessarily bounded by locality; the former extends over all contracts, wheresoever they may be made or executed, or whatsoever may be the form of the stipulations, which relate to the navigation, business, or commerce of the sea. Ibid. 474, 475.

• 147. The 9th section of the 1st article of the Constitution of the United States, which restrained Congress from forbidding the migration or importation of slaves prior to the year 1808, did not apply to state legislatures, who might at any thee prohibit the introduction of such persons Butler v. Hoppen, 1 Wash. C. C. R. 499.

• 148. The 2d section of the 4th article of the Constitution of the United States does not extend to a slave voluntarily carried by his master into another state, and there left under the protection of a law declaring him free, but to slaves escaping from one state into another. Ibid.

• 149. The powers bestowed by the Constitution upon the government of the United States were limited in their extent, and were not intended, nor can they be construed with other powers before vested in the state governments, which of course were reserved to those governments, impliedly, as well as by an express provision of the Constitution. Golden v. Prince, 3 Wash. C. C. R. 313. 5 Hall's Am. L. Journ. 502 S. C.

• 150. The state governments therefore retained the right to make such laws as they might think proper within the ordinary functions of legislation, if United inconsistent with the powers vested exclusively in the government of the United States, and not forbidden by some article of the Constitution of the United States or of the state; and such laws were obligatory upon all the citizens of that state, as well as others who might claim rights or redress for injuries under those laws, or in the courts of that state. Ibid.

• 151. The establishment of federal courts, and the jurisdiction granted to them in certain specified cases, could not, consistently with the spirit and provisions of the Constitution, impair any of the obligations thus imposed by the laws of the state, by setting up in those courts a rule of decision at variance with that which was binding upon the citizens, and which they were bound to obey. Ibid.

• 152. Thus the laws of a state affecting contracts, regulating the disposition and transmission of property, real or personal, and a variety of others, which in themselves are free from all constitutional objections, are equally valid and obligatory within the state, since the adoption of the Constitution of the United States, as they were before. They provide rules of civil conduct for every individual who is subject to their power. Ibid.

• 153. With respect to rules of practice for transacting the business of the courts, a different principle prevails. These rules form the law of the court; and it is, in relation to the federal courts, a law arising under the Constitution of the United States, consequently not subject to state regulations. It is in reference to this principle that the 17th section of the judicial act authorizes the courts of the United States to make all necessary rules for the orderly conducting of business in the said courts, provided the same are not repugnant to the laws of the United States; and under this power the different Circuit Courts, at their first session, adopted the state practice as it then existed, which continues to this day in all the states, except so far as the courts have thought proper, from time to time, to alter or amend it. Ibid.

• 154. A law may be unconstitutional, and of course void, in relation to particular cases, and yet valid, to all intents and purposes, in its application to other cases within the scope of its provisions, but varying from the former in particular circumstances. Thus a law prospective in its operation, under which a contract afterwards made may be avoided in a way different from that provided by the parties, would be clearly constitutional; because the stipulations of the parties, which are inconsistent with such a law, never had a legal existence, and of course could not be impaired by the law. But if the law act retrospectively as to other contracts, so as to impair their obligation, the law is invalid, or, in milder terms, affords no rule of decision in these latter cases. Ibid.

• 155. A law of a state, which declares that a debtor, by delivering up his estate for the benefit of his creditors, shall be forever discharged from the payment of his debts, due or contracted before the passage of the law, whether the creditor do any act or not in aid of the law, cannot be set up to bar the right of such creditor to recover his debt either in a federal or state court; such law impairs the obligation of the contract. Ibid.

• 156. A law which authorizes the discharge of a contract by a smaller sum, or at a different time, or in a different manner, than the parties have stipulated, impairs its obligation, by substituting, for the contract of the parties, one which they never entered into, and to the performance of which, of course, they never had consented. Ibid.

• 157. A state law, directing that the court before whom an insolvent debtor is discharged, shall make an order, that whenever a majority of the creditors shall consent, the debtor shall be released, and his future acquisitions exempted from all liability for seven years, is unconstitutional and void. United States v. Kederickson, C. C. U.S. P. Oct. 1821. M. S.

• 158. There is nothing in the Constitution of the United States which forbids Congress to pass laws violating the obligation of contracts, though such power is denied to the states individually. Evans v. Eaton, 1 Peters's C. C. R. 322.

• 159. If the local ordinances of a city are in collision with an act of Congress, the former must give way. The laws of Congress, made in pursuance of the Constitution of the United States, are the supreme laws of the land, any thing in the constitution or laws of the particular state notwithstanding. United States v. Hart, 1 Peters's C. C. R. 390.

• 160. An act of Congress, laying an embargo for an indefinite period of time, is constitutional and valid. United States v. The William, 2 Hall's Am. L. Journ. 255.

• 161. There is nothing in the Constitution of the United States which forbids the legislature of a state to exercise judicial functions. Satterlee v. Mathewson, Peters's Reports, vol. ii. 413.

• 162. There is no part of the Constitution of the United States, which applies to a state law, which divested rights vested by law in an individual, provided its effect be not to impair the obligation of the contract. Ibid. 413.

• 163. A tax imposed by a law of any state of the United States or under the authority of such a law, on stock issued for loans made the United States, is unconstitutional. Weston et Al. v. The City Council of Charleston, Ibid. 449.

• 164. It is not the want of original power in an independent sovereign state to prohibit loans to a foreign government, which restrains the state legislature from direct opposition to those made by the United States. The restraint is imposed by our Constitution. The American people have conferred the power of borrowing money on the government; and, by making that government supreme, have shielded its action, in the exercise of that power, from the action of the local governments. The grant of the power, and the declaration of supremacy, are a declaration that no such restraining or controlling power shall be exercised. Ibid. 468.

• 165. The provision in the 5th amendment to the Constitution of the United States, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states. Barron v. The Mayor and City Council of Baltimore, 7 Peters, Sup. Ct. U.S.

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