I PROCEED to consider the cases in which the powers of Congress have been made the subject of judicial investigation. (a)

1. Of Priority of Payment claimed by the United States. — Congress have declared by law that the United States were entitled to priority of payment over private creditors in cases of insolvency, and in the distribution of the estates of deceased debtors. The act of Congress of 31st July, 1789, sec. 21, confined the priority to custom-house bonds. The act of 4th August, 1790, c. 35, sec. 45, limited the priority in the same manner. The act of 2d May, 1792, placed the surety in a custom-house bond, who paid the debt, on the same footing, in respect to priority, as the United States; and it confined the cases of insolvency mentioned in the former law to those of a voluntary assignment, and of attachments against absconding, concealed, or absent debtors.

(a) Mr. Justice Story, in his Commentaries on the Constitution of the United States, 1. pp. 382-442, has given a very rational view of the rules of interpretation applicable to the Constitution. I have confined myself in this lecture to those authoritative expositions which have been given to it by the courts of the United States; and 1 agree entirely with that learned commentator, that we are to look to the instrument itself, "as a constitution of government ordained and established by the people of the United States." The instrument furnishes essentially the means of its own interpretation; and to resort to it was the practice of the late Chief Justice Marshall, in those clear and admirable judicial views of the Constitution which, so far as they go, leave us nothing more perfect to expect or desire. It is, at the same time, just and true, that "the most unexceptionable source of collateral interpretation is from the practical exposition of the government itself, in its various departments, upon particular questions discussed, and settled upon its own intrinsic merits. These approach the nearest in their own nature to judicial expositions, and have the same general recommendation that belongs to the latter. They are decided upon solemn argument, pro re nata, upon a doubt raised, upon a Us mote, upon a deep sense of their importance and difficulty, in the face of the nation, with a view to present action, in the midst of jealous interests, and by men capable of urging or repelling the grounds of argument, from their exquisite genius, their comprehensive learning, or their deep meditation upon the absorbing topic." Story's Comm. i. 392. See also infra, 313, to S. P.

The act of 3d March, 1797, c. 74, sec. 5, went further, and gave the United States a preference in all cases whatsoever, whoever might be the debtor, or however he might be indebted, in case the debtor became insolvent, or the assets in the hands of his representatives, after his death, were insufficient to pay his debts. This priority was declared to extend to cases in which the insolvent debtor had made a voluntary assignment of all his property, or in which his effects had been attached as an absconding, concealed, or absent debtor, or in which an act of legal bankruptcy had been committed. This act applies and gives the preference as against deceased debtors, whether the debt was contracted before or after the passage of the act, provided there be only general creditors, without any specific lien created. (b) The act of March 2, 1799, c. 128, sec. 65, provided, that in like cases {244}of insolvency, or where any estate in the hands of executors, administrators, or assignees should be insufficient, debts due to the United States, on bonds taken under the collection act, should have preference; and sureties in such bonds, on paying the same, had the same preference as was reserved to the United States. (a)

These were the legislative provisions, giving preference to debts due to the United States; and in United States v. Fisher, (b) the authority of Congress to pass such laws was drawn in question. The point discussed in that case was, whether the United States, as holders of a protested bill of exchange, negotiated in the ordinary course of trade, were to be preferred to the general creditors, when the debtor becomes bankrupt. The Supreme Court decided that the acts of Congress, giving that general priority to the United States, were constitutional. It was a power founded

(b) Commonwealth v. Lewis, 6 Binney, 266. [See Lewis v. United States, 92 U. S. 618; Bayne v. United States, 93 id. 642. The corresponding provision of the Revised Statutes (§ 3466) does not apply to demands against an insolvent national bank. Cook Co. Nat. Bank v. United States, 107 U. S. 445. — B.]

(a) Hunter v. United States, 5 Peters, 173. In the case of the United States v. Couch, C. C. U. S. New York, April Term, 1841, it was declared to have been the unvaried construction of the 65th section of the act of March 2, 1799, that the priority therein given to the United States, to be paid out of the estate of an insolvent debtor, takes effect only when the insolvency is established by an assignment of all his property, either by his own act or by act of law, and when such assignment is carried into execution by the assignees. Hunt's Merchants' Magazine, New York, August, 1841, 168; United States v. Wood & Ives, ib. 170, S. p.

(b) 2 Cranch, 358.

on the authority to make all laws which should be necessary and proper to carry into effect the powers vested by the Constitution in the government of the United States. Where the end was within the lawful powers of the government, Congress possessed the choice of the means, and were empowered to use any means which were in fact conducive to the exercise of the powers granted. The government is to pay the debts of the Union, and must be authorized to use the means most eligible to effect that object. It has a right to make remittances, by bills or otherwise, and to take those precautions which will render the transaction safe. If this claim of priority interferes with the right of the state sovereignties, respecting the dignity of debts, and defeats the measures which" they would otherwise have a right to adopt to secure themselves, it is a necessary consequence of the supremacy of the laws of the Union, on all subjects to which the legislative power of Congress extends. (x)

(x) So, in the Legal Tender Case (Juilliard v. Greenman), 110 U. S. 421, 440, the court, relying in great part upon United States v. Fisher, held that the power of Congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers," includes power to make the U. S. treasury notes a legal tender in payment of private debts, in times of peace or war.

Under the bankruptcy acts, the United States might prove their claim and assert their priority, but was not obliged so to do, as not being affected by the proceedings. United States v. Barnes, 31 Fed. Rep. 705, 708; In re Huddell, 47 id. 206; United States v. Lewis, 13 N. B. R. 33. The equity rule, recognized by the bankrupt law, that the creditors of a bankrupt partnership were to be paid from the firm's assets, and individual creditors from the individual assets, did not apply to the United States, which could enforce its priority against both sets of assets. Lewis v. United States, 14 N. B. R. 64; 92 U. S. 618. A person who pays the duty on imported goods, in order to take them out of the bonded warehouse, is subrogated to

the rights of the United States against the failing sureties on the bond. Re Chase, 14 N. B. R. 139, 157.

If the Government's priority is based upon a statutory penalty, the debt arises when the penalty is incurred. Re Rosey, 6 Ben. 507.

Under the U. S. Rev. Stats. §§ 3466, 3467, the priority of the United States extends to all classes of debts whether liquidated or unliquidated, joint or several, legal or equitable; and when the insolvent debtor has made a voluntary general assignment, or committed an act of bankruptcy, such priority extends to all his estate which comes to the hands of his assignee. The assignee becomes a trustee for the United States, and is bound to pay their debt first out of the proceeds of the debtor's property. United States v. Barnes, 24 Blatch. 466, 469; see Bush v. United States, 14 Fed. Rep. 321; United States v. Griswold, 8 id. 496; Cottrell v. Pierson, 12 id. 805.

The United States, when suing in equity as a creditor to set aside in a federal court a fraudulent conveyance by its debtor, are bound by the principles which

The principle was here settled, that the United States are {245} entitled to secure to themselves the exclusive privilege of being preferred as creditors to private citizens, and even to the state authorities, in all cases of the insolvency or bankruptcy of their debtor. But the court observed, that no lien was created by the statutes giving the preference. No bona fide transfer of property, in the ordinary course of business, was overreached. It was only a priority of payment, which, under different modifications, was a regulation in common use; and a bona fide alienation of property, before the right of priority attached, was admitted to be good.

The next case that brought into discussion this question of priority was that of the United States v. Hooe. (a) It was there held that the priority to which the United States were entitled did not partake of the character of a lien on the property of public debtors. The United States, in the mere character of creditor, have no lien on the real estate of their debtor. If the priority existed from the time the debt was contracted, and the debtor should continue to transact business with the world, the inconvenience would be immense. The priority only applied to cases where the debtor had become actually and notoriously insolvent, and, being unable to pay his debts, had made a voluntary assignment of all his property, or having absconded or absented himself, his property had been attached by process of law. A bona fide conveyance of part of the property of the debtor, not for the fraudulent purpose of evading the law, but to secure a fair creditor, is not a case within the act of Congress giving priority. (b)

(a) 3 Cranch, 73.

(b) United States v. Hooe, supra; United States v. Clark, 1 Paine, 629; United States v. Monroe, 5 Mason, 572; United States v. Hawkins, 16 Martin (La.), 317. In England, a provisional assignment in bankruptcy will defeat the king's extent, if it precedes the test of the writ. King v. Crump, Parker, 126; Lord Eldon, 14 Vesey, 88. In the case of the United States v. McLellan, 3 Sumner, 345, it was held that a conveyance, by a known insolvent debtor, of all his property to one or more creditors, in discharge of their debts, not exceeding the amount due, and not for the benefit of any other creditors, was not a voluntary assignment within the act of 1799, so as to be affected by the priority of the United States.

control an individual in such a suit. United States v. Ingate, 48 Fed. Rep. 251. And in general, when the government voluntarily appears in a suit in which

its interests are involved, the same principles apply as in the case of an individual. United States v. Beebee, 17 Fed. Rep. 36; United States v. McElroy, 25 id. 804.

In this case of the United States v. Hooe, a collector of the revenue had mortgaged part of his property to his surety in his official bond, to {246} indemnify him from his responsibility as surety, and to secure him from his existing and future indorsements for the mortgagor at bank; and the mortgage was held valid against the claim of the United States, although the collector was, in point of fact, unable to pay all his debts at the time the mortgage was given; and although the mortgagee knew, when he took the mortgage, that the mortgagor was largely indebted to the United States.

Afterwards, in Harrison v. Sterry, (a) it was held that in the distribution of a bankrupt's effects, the United States were entitled to their preference, although the debt was contracted by a foreigner in a foreign country, and the United States had proved their debt under a commission of bankruptcy. Though the law of the place where the contract is made be, generally speaking, the law of the contract, yet the right of priority forms no part of the contract. The insolvency which was to entitle the United States to a preference was declared, in Prince v. Bartlett, (b) to mean a legal and known insolvency, manifested by some notorious act of the debtor, pursuant to law. This was giving to the world some reasonable and definite test by which to ascertain the existence of the latent and dangerous preference given by law to the United States. In this last case, the effects of an insolvent debtor, duly attached in June, were considered not to be liable to the claim of the United States, on a custom-house bond given prior to the attachment, and put in suit in August following. The private creditor had acquired a lien by his attachment, which could not be devested by process on the part of the United States subsequently issued. Nor will the lien of a judgment creditor, duly perfected, be displaced by the mere priority of the United States. The word "insolvency," in the acts of Congress of 1790, 1797, and 1799, means a legal insolvency; and a mere state of insolvency, or inability in a debtor to pay all his {247} debts, gives no right of preference to the United States, unless it be accompanied by a voluntary assignment of all the property, for the benefit of creditors, or by some legal act of insolvency. If, before the right of preference

(a) 5 Cranch, 289.

(b) 8 Cranch, 431; S. P. United States v. Canal Bank, 3 Story, 79.

has accrued, the debtor has made a bona fide conveyance of his estate to a third person, or has mortgaged the same to secure a debt, or if the property has been seized under an execution, the property is devested from the debtor, and cannot be made liable to the United States. (a)

(a) Thelusson v. Smith, 2 Wheaton, 396; Conard v. The Atlantic Insurance Company, 1 Peters, 386; Brent v. Bank of Washington, 10 Peters, 596. The priority of the United States does not affect any lien, general or specific, existing when the event took place, which gave the United States a claim of priority, nor prevent the transmission of the property to assignees, executors, and administrators subject to the lien. Ib. In England, in the case of Giles v, Grover, before the House of Lords (9 Bing. 128), it was decided, after a most elaborate discussion, in conformity with the opinions of a majority of the twelve judges, that the goods of a debtor, already seized under a fi. fa. at the suit of a subject, but not sold, might be taken under a writ of extent for a debt of the crown, and which writ of extent was tested after the seizure under the fi. fa. The seizure under the fi. fa. was considered as not devesting the debtor of his general property in the goods seized, or in any manner altering the property, and that no property was thereby acquired therein by the execution creditor, or by the sheriff. The claims of the crown and the subject on the goods were held to stand in equal degree, and the two executions to be in effect concurrent; and in such cases the king's prerogative had the preference. Quando jus Domini Regis et subditi insimul concurrunt jus regis præferri debet. (9 Co. 129, b.) The sheriff had the legal custody of the goods, and a special property in them by virtue of the seizure, for the purpose of protection and sale; but until the sale, which was the dividing line as [to] the ownership of the goods, the absolute property of the debtor was not altered or devested. The priority of the government claims in this country is not carried to that extent, according to the opinion of Judge Washington, in Thelusson v. Smith; but it is to be observed, that the observation of Judge Washington was a mere dictum, and not a turning-point in the case. The same remark applies to what was said by the judge who delivered the opinion of the court in Conard v. The Atlantic Insurance Company; for the dictum was quoted in the course of the opinion incidentally, and without any criticism upon it, or particular attention to it. In Hoke v. Henderson, 3 Dev. (N. C.) 17, Judge Ruffin considered the prerogative of the sovereign as to priority equally applicable here as in England, and that it went to the extent claimed in the above case of Giles v. Grover. On the other hand, in Wilcocks v. Waln, 10 Serg. & Rawle, 380, and in United States v. Mechanics' Bank, Gilpin, 51, it was held that the priority of the United States gave no lien on property seized under a fieri facias, when the lien accrued, for the debtor was devested of the property. A very contested question has been raised and discussed in the courts in this country, on the conflicting claims of a judgment or attaching creditor under state laws, and the assignee under the bankrupt law of the United States. It was declared and adjudged by Mr. Justice Story, in the Circuit Court of the United States, in Massachusetts, and by Mr. Justice Ware, in the District Court of Maine, that an attachment under a state law was not an absolute lien, but a contingent one, dependent upon a subsequent judgment in the attaching suit; and that a bankrupt's discharge upon a petition in bankruptcy, filed after the attachment and during the process of such suit, would be a bar to the recovery of any judgment thereon, and that the lien created by the attachment must give way and becomes avoided, and the debt also, by the subsequent

The United States have, accordingly, a preference as creditors, to the extent above declared, in four cases, viz.: (1.) In the case of the death of the debtor without sufficient assets; (2.) bankruptcy, or legal insolvency, manifested by some act pursuant to law; (3.) a voluntary assignment by the insolvent of all his

decree and discharge in bankruptcy. Ex parte Foster, 2 Story, 131; In the Matter of Cook, 2 Story, 376; In the Matter of Bellows and Peck, 3 Story, 428; Smith v. Gordon, 6 Law Reporter, 313; Everett v. Stone, 3 Story, 447. The courts of the United States, and several of the state courts, maintain a different doctrine. The doctrine is, that a creditor, by his suit in equity, commonly called a creditor's bill, on his unsatisfied judgment, thereby acquires an equitable lien, and which operates as an attachment of property, and creates a right to priority of payment as against the assignee of a bankrupt, under a petition in bankruptcy subsequently made. That such a lien was not devested by a decree in bankruptcy, upon a petition filed subsequent to the commencement of a chancery suit, or the levy of the attachment. That the assignee in such a case takes the debtor's property subject to the creditor's lien, even independent of the proviso in the bankrupt act, and upon general principles applicable to insolvency and bankruptcy in this country and in England. That the assignee of the bankrupt or insolvent takes only such rights, and subject to such equities as belonged to the bankrupt himself at the time of the bankruptcy. That the judgment creditor had also a lien, upon the true construction of the proviso in the 2d section of the bankrupt law, paramount to the claim of the assignee, and as strong upon this proviso as upon general principles of law, for the word securities reaches all mortgages and liens, and they may be enforced in the state courts. The attachment is a lien, and the creditor's bill a lien within the proviso, and the property of the bankrupt was not devested until the decree in bankruptcy. The decisions in the circuit courts of the United States in Vermont, New Jersey, and Pennsylvania, and of the district courts of Vermont, of Northern New York, and of several of the state courts, are all cited in support of this doctrine, by the Ass't V. Ch. of New York, in the case of Storm v. Waddell, 3 N. Y. Legal Observer, 367, S. C. 2 Sandf. Ch. 494, and which case is distinguished for its learning and ability, and its logical vindication of the doctrine. The two cases of Kittredge v. Warren and of Kittredge v. Emerson, decided in the Supreme Court of New Hampshire, in the year 1844, and in which the judgment of the court was delivered by Mr. Ch. Justice Parker, are equally worthy of special notice for their learned research, and powerful, if not irresistible, deductions.1 See also, Doremus v. Walker, 8 Ala. 194, and Mabry v. Herndon, ib. 848, to the S. P., and in favor of the right of the state courts to inquire into the validity of a discharge upon the allegation that the bankrupt did not render a true inventory of his property, but fraudulently concealed the same.

1 14 N. H. 509; 15 N. H. 227. The doctrine of the New Hampshire courts was that finally established in the Supreme Court of the United States. Peck v. Jenness, 7 How. 612; Colby v. Ledden, ib. 626. But by the Bankrupt Law of March 2, 1867, § 14, the assignee takes the property of the bankrupt, although the

same is then attached on mesne process, and the assignment dissolves any such attachment made within four months next preceding the commencement of the proceedings. It may be further remarked here, that under the same law, § 28, the United States have a preference as creditors.

property to pay his debts; (4.) in the case of an absent, concealed, or absconding debtor, whose effects are attached by process of law. The priority was intended to operate only where, by law, or by the act of the debtor, his property was sequestered for the use of his creditors; and it is proper that this prerogative right of the United States should be strictly construed and precisely defined, for it is in derogation of the general rights of creditors. (b)

The government was a privileged creditor, under the Roman law, and entitled to priority in the payment of debts. The cessio bonorum was made subject to this priority. This is generally the case, in all modern bankrupt and insolvent laws. In England, the king's claim is preferred to that of a subject, provided the king's process was commenced before the subject had obtained judgment. (c) As to the fiscal lien of the government of the United States, it {248} was held in Harris v. Dennie, (a) that the government had a lien on goods imported, for the payment of duties accruing on them, and not secured by bond; and that the United States were entitled to the custody

(b) Watkins v. Otis, 2 Pick. 102. The priority given by law to the United States does not extend to the real estate, or the proceeds of the real estate, belonging to or vested in the heirs of the debtor. The priority does not attach as against the heir, but only when the real estate, or the proceeds thereof, passes to, or is vested by law in the hands of, an assignee of an insolvent debtor, or his executors or administrators. United States v. Crookshank, 1 Edw. Ch. 233. It does not extend so as to take the property of a partner in partnership effects, to pay the separate debt of such partner, when the partnership effects are not sufficient to satisfy the creditors of the partnership. United States v. Hack, 8 Peters, 271. It does not extend so as to reach the allowance made by the judge of probate to the widow of the deceased debtor, under the law of distribution of intestates' estates. Postmaster-General v. Robbins, Ware, 165. It does not extend to a surety to a custom-house bond, so as to entitle him, after paying the debt, to be subrogated to the rights of the United States as against his co-surety, or to give his demand for contribution a preference over other creditors. Pollock v. Pratt, 2 Wash. 490; Bank v. Adger, 2 Hill, Ch. (S. C.) 266. But this priority, as given by the statute of 1797, applies to equitable as well as legal debts. Howe v. Sheppard, 5 Sumner, 133. It was further held, in Beaston v. Farmers' Bank of Delaware, 12 Peters, 102, that no lien was erected [created] by the statute of March 3, 1797, and that the priority established by it could never attach, while the debtor continues the owner and in possession of the property, though he be unable to pay his debts, — that no evidence of his insolvency can be received, until he has been devested of his property; and when thus devested, the person who takes the title becomes a trustee for the United States. See Conkling's Treatise, 2d ed. 469-476, for a condensed view of the statutes and judicial decisions on this question of priority asserted by the United States.

(c) Stat. Hen. VIII. c. 39. (a) 3 Peters, 292.

of the goods until the duties were paid or secured; and any attachment of the goods under state process, during such custody, was void. On the other hand, it was held that the government had no general lien on the goods of the importer, for duties due by him upon other importations. (b)

(b) In Maryland, by statute, passed in 1778, the commencement of a suit by the state against a public debtor created a lien on the lands of the debtor, and a preference over all other creditors, who had not, prior to the commencement of the suit, secured a lien by judgment, mortgage, or otherwise. Davidson v. Clayland, 1 Harr. & Johns. 546. The preference in payment of debts was a branch of government prerogative at common law, and it was introduced as such into Maryland. It is the law still, where the property of the debtor remains in hand, and there is no lien standing in the way. State of Maryland v. Bank of Maryland, 6 Gill & John. 205. In Connecticut, the state has a priority of claim against the estate of an insolvent debtor; and state sureties paying the debt have the same privilege. Revised Statutes of Connecticut, 1826, 212. The state reference rests, in this country, upon statutes; and the common law gives none over other creditors. The State v. Harris, 2 Bailey, S. C. 598. Keckley v. Keckley, 2 Hill, Ch. (S. C.) 256. The common-law prerogative of the king, to be paid in preference to all other creditors, is therefore not universally adopted in this country. It prevails in the government of the United States, and in Maryland, North Carolina, Indiana, Connecticut, &c., but not in South Carolina. In Georgia, state taxes have preference over all incumbrances whatsoever. State v. Pemberton, Dudley, 15. In Indiana, the state has preference of all other creditors; and real and personal estate is bound on behalf of the state from the teste of the first process. Rev. Stats. 1838, 283.

As to the lien of judgments obtained by individuals in the federal courts, it was decided in the Circuit Court of the United States, in New York, in November, 1829, in the case of Konig v. Bayard, that judgments in the circuit and district courts in New York were a lien upon lands as against subsequent purchasers, from the time they were regularly docketed, according to the practice of those courts, and that the usage of docketing those judgments had prevailed since 1795. The same doctrine was assumed in reference to judgments in the federal courts in Pennsylvania, in the case of Conard v. Atlantic Ins. Co., 1 Peters, 386; and the principles contained in this last case were reviewed and confirmed in Conard v. Nicoll, 4 Peters, 291. The same rule as to judgments in the Circuit Court of the United States in Ohio. Sellers v. Corwin, 5 Ohio, 400. There is no act of Congress making judgments in the United States courts a lien on lands. Such a lien depends upon the local laws of the state where the land lies. Tayloe v. Thomson, 5 Peters, 358. In New York, therefore, a judgment in one of the federal courts within that state is a lien upon the lands of the debtor within the state, for the term of ten years from the docketing of the judgment. The Manhattan Company v. Evertson, 6 Paige, 457. Indeed, in every state, the judgments of the federal courts have the same lien, to the extent of its jurisdiction, as the judgments of the highest court of the state. Den v. Jones, 2 McLean, 78, 83.1

Debtors to the United States for moneys received, their executors and administra-

1 The lien of judgments and decrees in the federal courts arises out of the

adoption of the state laws upon that sub-

ject, and the lien may be considered a

2. Power to incorporate a Bank. — The next case which called forth a construction from every part of the government as to the implied powers of Congress, was, whether Congress had power

tors, &c., omitting, on due notice, to render to the Auditor of the Treasury their accounts and vouchers for the expenditure of such moneys, are to be sued under the direction of the Comptroller of the Treasury, and are to be subject to the costs and charges of such suits, whether the ultimate decision be in their favor or against them. (Act of Congress, March 3, 1795, c. 113.) So receivers of public moneys, including all public officers, who shall fail to account and pay over the same, they and their sureties may be proceeded against forthwith by warrant of distress,2 and have their goods and chattels seized and sold, and if not sufficient, they may be imprisoned. The amount due is a lien on the real estate from the time of the levy of the distress warrant: and for want of sufficient goods and chattels, the lands may be sold on three weeks' notice, and a conveyance executed to the purchaser by the marshal. (Act of Congress, supra, sec. 3, and act of May 15, 1820, sec. 2, 3.) Any person aggrieved by the distress may apply by bill to the district judge for relief under the process of injunction, and

rule of property and rule of decision under the thirty-fourth section of the Judiciary Act. Clements v. Berry, 11 How. 398, 411; post, 342, n. 1. But the state laws, it is said, are adopted, not by the courts, but by the acts of Congress regulating the process of the courts of the United States. (x) Brown v. Pierce, 7 Wall. 205, 217; Ward v. Chamberlain, 2 Black, 430, 439 et seq. On these principles it was held in the last case that an admir-

alty decree in personam for the payment of a sum of money was a lien, in a state by whose laws a decree in equity had that effect. But equity will protect the interest of a party in land which he has conveyed under duress, against the general lien of judgment creditors of the legal owner. Brown v. Pierce, supra.

2 This provision is constitutional. Murray v. Hoboken L. & I. Co., 18 How. 272. (y)

(x) Federal judgments and decrees, in the absence of Federal legislation, are governed by State laws. Perkins v. Brierfield Iron & Coal Co., 77 Ala. 403. They are liens to the same extent as similar judgments and decrees of the State courts of general jurisdiction, and by U. S. Rev. Stats. § 967, they cease to be liens "in the same manner and at like periods." Brown v. Pierce, 7 Wall. 217; Myers v. Tyson, 13 Blatch. 242; U. S. Stat. of Aug. 1, 1888, ch. 729 (25 St. at L. 357); see 18 Am. L. Rev. 261. When a local statute gives a remedy in equity to remove a cloud upon the legal title, without requiring the complainant to obtain prior possession, that remedy may be administered in appropriate cases by the Federal courts, without, however, affecting the

distinction between legal and equitable rights and remedies, which, in procedure, uniformly prevails thoughout those courts. Holland v. Challen, 110 U. S. 15: United States v. Wilson, 118 U. S. 86. (y) See also as to what is "due process of law," Davidson v. New Orleans, 96 U. S. 97; Springer v. United States, 102 U. S. 586; Hurtado v. Cal., 110 U. S. 516; Spencer v. Merchant, 125 U. S. 345; 18 Am. L. Rev. 459; Lent v. Tillson, 140 U. S. 316; Conery v. New Orleans W. Co., 142 U. S. 79; New York v. Squire, 145 U. S. 175; Baker v. Kilgore, id. 487; Yesler v. Washington H. L. Com'rs, 146 U. S. 646; McNulty v. California, 149 U. S. 645; Ramsey v. People, 142 Ill. 380; supra, 221, n. (x); infra, 391 n. (x).

to incorporate a bank. In the year 1791, the Secretary of the Treasury had recommended the institution of a national bank, as being of primary importance to the prosperous administration of the finances, and of the greatest utility in the operations connected with the support of public credit. But the bill for establishing a bank was opposed in the House of Representatives, as not authorized by the Constitution. It was contended that the government of the United {249} States was limited to the exercise of the enumerated powers, and that the power to incorporate a bank was not one of them, and, if vested in the government, it must be an implied power; and it was contended, that the power given to Congress to pass all laws necessary and proper to execute the specified powers must be limited to means necessary to the end, and incident to the nature of the specified powers. On the other hand, it was urged in favor of the bill, that incidental, as well as express powers, necessarily belonged to every government, and that when a power was delegated to effect particular objects, all the known and usual means of effecting them passed as incidental to them; and it was insisted that a bank was a known and usual instrument, by which several of the enumerated powers of government were

if still unredressed, he may appeal to the Circuit Court. (Act of Congress, 15th May, 1820, sec. 4, 6.) He may also, if in prison, be relieved upon habeas corpus by the Circuit Court of the United States. (United States v. Nourse, 9 Peters, 8; ib. 12, note.) The doctrines of the government and courts of the United States are quite stringent in respect to the obligation of importers of goods. The import duty is held to be a personal debt chargeable upon the importer, as well as a lien on the goods themselves, and that the personal debt continues, though the goods be deposited with a bond given for the duties, and the goods be lost or destroyed. Meredith v. United States, 13 Peters, 486, 494. Another part of that case wears the same forbidding aspect. The enforcement of fines, penalties, or forfeitures, under the revenue laws of the United States, is extremely strict and rigorous; but the act of Congress of March 3, 1797, sec. 1, made perpetual by act of Feb. 11, 1800, authorizes the Secretary of the Treasury, on application, to mitigate or remit the penalties of these laws, when, from the facts of the case, first judicially ascertained, he should be of opinion that such penalties have been incurred without wilful negligence, or any intention of fraud. (z)

(z) The right to duties on imported goods accrues on their arrival at the port of destination, with intent to unlade. McAndrew v. Robertson, 29 Fed. Rep. 246; McLean v. Hager, 31 id. 602. As revenue statutes are not remedial, or

founded upon any permanent public policy, they are construed in favor of the taxpayer and most strongly against the government. American Net & Twine Co. v. Worthington, 141 U. S. 468; Rice v. United States, 53 Fed. Rep. 910.

exercised. After the bill had passed the two houses of Congress, the question touching its constitutionality was agitated with equal ability and ardor in the executive cabinet. The Secretary of State and the Attorney-General conceived that Congress had transcended their powers, but the Secretary of the Treasury maintained the opposite opinion. Their respective opinions were founded on a train of reasoning, denoting great investigation of all the leading and fundamental principles of the Constitution, and they were submitted to the consideration of the President of the United States. It was argued against the constitutionality of the act, that the power to incorporate a bank was not among the enumerated powers, and to take a single step beyond the boundaries specially drawn around the powers of Congress would be to take possession of an undefined and undefinable field of power; that though Congress were authorized to make all laws necessary and proper for carrying into execution the enumerated powers, they were confined to those means which were necessary, and not merely convenient. It meant those means without which the grant of the power would be nugatory, and that if such a latitude of construction were allowed, as to give to Congress any implied power on the ground of convenience, {250} it would swallow up all the list of enumerated powers, and reduce the whole to one phrase. On the other hand, it was contended that every power vested in a government was, in its nature, sovereign, and gave a right to employ all the means fairly applicable to the attainment of the end of the power, and not specially precluded by specified exceptions, nor contrary to the essential ends of political society; that though the government of the United States was one of limited and specified powers, it was sovereign with regard to its proper objects, and to its declared purposes and trusts; that it was incident to sovereign power to erect corporations, and, consequently, it was incident to the United States to erect one, in relation to the objects intrusted to its management; that implied powers are as completely delegated as those which are expressed, and the power of erecting a corporation may as well be implied as any other instrument or means of carrying into execution any of the specified powers; that the exercise of the power in that case had a natural relation to the lawful ends of the government, and it was incident to the sovereign power to regulate, and to

employ all the means which apply with the best advantage to that regulation; that the word necessary, in the Constitution, ought not to be confined to those means, without which the grant of power would be nugatory, and it often means no more than needful, requisite, useful, or conducive to, and that was the true sense in which the word was used in the Constitution. The relation between the measure and the end was the criterion of constitutionality, and not whether there was a greater or less necessity or utility. The infinite variety, extent, and complexity of national exigencies necessarily required great latitude of discretion in the selection and application of means; and the authority intrusted to government ought and must be exercised on principles of liberal construction.

President Washington gave these arguments of his cabinet a deliberate and profound consideration, and it {251} terminated in a conviction, that the incorporation of a bank was a measure authorized by the Constitution, and the bill passed into a law.

This same question came before the Supreme Court of the United States, in 1819, in the case of M'Culloch v. The State of Maryland, (a) in reference to the Bank of the United States, which was incorporated in 1816, and upon which the legislature of Maryland had imposed a tax. Notwithstanding the question arising on the construction of the powers of Congress had been settled, so far as an act of Congress could settle it, in 1791, and again in 1816, it was thought worthy of a renewed discussion in that case. The Chief Justice, in delivering the opinion of the court, observed, that the question could scarcely be considered an open one, after the principle had been so early introduced and recognized by many successive legislatures, and had been acted upon by the judicial department, as a law of undoubted obligation. He admitted that it belonged to the Supreme Court alone to make a final decision in the case, and that the question involved a consideration of the Constitution in its most interesting and vital parts.

It was admitted that the government of the United States was one of enumerated powers, and that it could exercise only the powers granted to it; but though limited in its powers, it was supreme within its sphere of action. It was the government of

(a) 4 Wheaton, 316.

the people of the United States, and emanated from them. Its powers were delegated by all, and it represented all, and acted for all. In respect to those subjects on which it can act, it must necessarily bind its component parts; and this was the express language of the Constitution, when it declared that the Constitution, and the laws made in pursuance thereof, were the supreme law of the land and required all the officers of the state governments to take an oath of fidelity to it. There was nothing {252} in the Constitution which excluded incidental or implied powers. The articles of the confederation gave nothing to the United States but what was expressly granted; but the new Constitution dropped the word expressly, and left the question whether a particular power was granted, to depend on a fair construction of the whole instrument. No constitution can contain an accurate detail of all the subdivisions of its powers, and of all the means by which they might be carried into execution. It would render it too prolix. Its nature requires that only the great outlines should be marked, and its important objects designated, and all the minor ingredients left to be deduced from the nature of those objects. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, were intrusted to the general government; and a government intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation vitally depended, must also be intrusted with ample means for their execution. Unless the words imperiously require it, we ought not to adopt a construction which would impute to the framers of the Constitution, when granting great powers for the public good, the intention of impeding their exercise, by withholding a choice of means.

The powers given to the government imply the ordinary means of execution; and the government, in all sound reason and fair interpretation, must have the choice of the means which it deems the most convenient and appropriate to the execution of the power. The power of creating a corporation, though appertaining to sovereignty, was not a great, substantive, and independent power, but merely a means by which other objects were accomplished; in like manner as no seminary of learning is instituted in order to be incorporated, but the corporate charter is conferred to subserve the purposes of education. The power of creating a

corporation is never used for its own sake, but for the purpose of effecting something else. It is nothing but ordinary {253} means to attain some public and useful end. The Constitution has not left the right of Congress to employ the necessary means for the execution of its powers to general reasoning. It is expressly authorized to employ such means; and necessary means, in the sense of the Constitution, does not import an absolute physical necessity, so strong that one thing cannot exist without the other. It stands for any means calculated to produce the end. The word "necessary" admits of all degrees of comparison. A thing may be necessary, or very necessary, or absolutely and indispensably necessary. The word is used in various senses, and in its construction, the subject, the context, the intention, are all to be taken into view. The powers of the government were given for the welfare of the nation. They were intended to endure for ages to come, and to be adapted to the various crises of human affairs. To prescribe the specific means by which government should in all future time execute its power, and to confine the choice of means to such narrow limits as should not leave it in the power of Congress to adopt any which might be appropriate and conducive to the end, would be most unwise and pernicious, because it would be an attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and would deprive the legislature of the capacity to avail itself of experience, or to exercise its reason, and accommodate its legislation to circumstances.

If the end be legitimate, and within the scope of the Constitution, all means which are appropriate and plainly adapted to this end, and which are not prohibited, are lawful; and a corporation was a means not less usual, nor of higher dignity, nor more requiring a particular specification, than other means. A national bank was a convenient, a useful, and essential instrument in the prosecution of the fiscal operations of the government. It was clearly an appropriate measure; and while the Supreme Court declared it to be within its power and its duty to maintain that an act {254} of Congress exceeding its power was not the law of the land, yet if a law was not prohibited by the Constitution and was really calculated to effect an object intrusted to the government, the court did not pretend

to the power to inquire into the degree of its necessity. That would be passing the line which circumscribes the judicial department, and be treading on legislative ground.

The court therefore decided, that the law creating the Bank of the United States was one made in pursuance of the Constitution; and that the branches of the national bank, proceeding from the same stock, and being conducive to the complete accomplishment of the object, were equally constitutional.

The Supreme Court were afterwards led, in some degree, to review this decision, in the case of Osborn v. The United States Bank; (a) and they there admitted that Congress could not create a corporation for its own sake, or for private purposes. The whole opinion of the court in the case of M'Culloch v. The State of Maryland was founded on, and sustained by, the idea that the bank was an instrument which was necessary and proper for carrying into effect the powers vested in the government. It was created for national purposes only, though it was undoubtedly capable of transacting private as well as public business; and while it was the great instrument by which the fiscal operations of the government were effected, it was also trading with individuals for its own advantage. The bank, on any rational calculation, could not effect its object, unless it was endowed with the faculty of lending and dealing in money. This faculty was necessary to render the bank competent to the purposes of government, and, therefore, it was constitutionally and rightfully engrafted on the institution. (b)1 (x)

(a) 9 Wheaton, 859, 860.

(b) It is worthy of notice that the power of Congress to establish a national bank, even under the articles of confederation, seems not, at the time, to have been much questioned; and Congress did actually approve of such a proposition on the 26th of May, 1781; and on the 31st of December following, they proceeded by ordinance to institute and incorporate the Bank of North America. Journals of Congress, vii. 87, 197. The constitutionality and validity of this ordinance were ably enforced by Judge

1 Legal Tender Gases. — The most important discussion of the implied powers of Congress that has ever taken place, has arisen on the question of the constitutionality of the legal tender acts. The acts of 1862 and 1863 authorized the issue

of United States notes, and enacted that they should be lawful money and a legal tender in payment of all debts, public and private, within the United States, with certain exceptions. After a large number of the state courts had decided

(x) The same reasoning makes the national bank act of 1864 constitutional.

Farmers' Nat. Bank v. Dealing, 91 U. S. 29.

3. Taxation. — The construction of the powers of Congress relative to taxation was brought before the Supreme Court, in

Wilson. See Wilson's Works, iii. 397, and see supra, 212, n. The first and the second banks of the United States were established by statutes which received the approbation of Presidents Washington and Madison, and the constitutionality of the establishment of those banks being repeatedly declared by the Supreme Court of the United States, it was considered as a settled question, not open for further discussion. The Constitution declared that "all legislative powers therein granted should be vested in the Congress of the United States;" and that "the executive power should be vested in a President of the United States;" and that "the judicial power of the United States should be vested in one Supreme Court, and in such inferior courts as the Congress might from time to time ordain and establish;" and that "the judicial power should extend to all cases in law and equity arising under the Constitution." (Art. 1, sec. 1; Art. 2, sec. 1; Art. 3, sec. 1, 2.) This simple and beautiful distribution of power would seem to be too clear to be mistaken, and too sacred to be invaded. The oath to support the Constitution necessarily includes, in its meaning and efficacy, the support of this distribution of power, and of the judicial cognizance of all cases arising under the Constitution. That cognizance extends, of course, to the question whether Congress have the constitutional power to incorporate a national bank. It is a case arising under the Constitution; and the decisions of the Supreme Court were in favor of the existence of such a power, and of the valid exercise of it in the establishment of a national bank. The words necessary and proper in the Constitution were not to be confined to means that were indispensable in the exercise of any express power; but extended to all means that Congress should deem expedient and useful, and conducive to the end proposed in the execution of any express power. That construction is binding and conclusive, as well upon the other departments of the government as upon the nation at large. The Congress, in whom is vested the legislative power, and the President, in whom is vested the executive power, are respectively bound to receive and obey that construction of the Constitution which has been duly settled by the judicial power. See, further, infra, 449, 456, note 6.

that these enactments were within the powers of Congress, the question whether the act of 1862 was constitutional as to debts contracted and due before its passage came before the Supreme Court of the United States. The court, consisting of eight judges, was not unanimous, and decided against the act by a bare majority. The arguments of the Chief Justice in favor of the decision, and of Mr. Justice Miller for the dissenting members, both went very much on the question whether the act was a "necessary and proper" means of carrying out some of the powers expressly given to Congress. The further ground was adverted to that the act was inconsistent with the "spirit of the Constitution," as impairing the ob-

ligation of contracts, taking private property for public use without compensation, &c. Hepburn v. Griswold, 8 Wall. 603. Some other arguments of a more technically legal character were called out by this decision. A letter to the American Law Review may be specially referred to, iv. 768. The question is not whether the Constitution prohibits the exercise of the power in question, but whether it grants it; of course, a power as to which the Constitution is silent, may be given by implication as a necessary or proper means of carrying out other powers which are expressly conferred; but it is hard to see how a limited power which is expressly given, and which does not come up to a desired height, can be enlarged as an in-

1796, in the case of Hylton v. The United States. (c) By the act of {255} 5th June, 1794, Congress laid a duty upon carriages for the conveyance of persons, and the question was whether this was a direct tax, within the meaning of the Constitution. If it was not a direct tax, it was admitted to be rightly laid, under that part of the Constitution which declares that all duties, imposts, and excises shall be uniform throughout the United States; but if it was a direct tax, it was not constitutionally laid, for it must then be laid according to the census, under that part of the Constitution which declares that direct taxes shall be apportioned among the several states according to numbers. The Circuit Court in Virginia was divided in opinion on the question; but on appeal to the Supreme Court, it was decided, that the tax on carriages was not a direct tax, within the letter or meaning of the Constitution, and was therefore constitutionally laid.

(c) 3 Dallas, 171.

cident to some other express power; an express grant seems to exclude implications; the power to "coin money" means to strike off metallic medals (coin), and to make those medals legal tender (money); if the Constitution says expressly that Congress shall have power to make metallic legal tender, how can it be taken to say by implication that Congress shall have power to make paper legal tender? 7 Am. Law Rev. 146.

In December, 1870, the subject was brought once more before the Supreme Court, the composition of which had been changed in the mean time by the resignation of one judge and the appointment of two others, and the whole matter was allowed to be reargued. The court took considerable time to deliberate, and at length overruled their former decision, and affirmed the constitutionality of the acts, both as to contracts made before and after the passage, by a majority of five to four. Legal Tender Cases, Knox v. Lee; Parker v. Davis, 12 Wall 457. The majority do not go further into the expediency of the measure than to show

that it was not improper under the circumstances, but devote themselves more to showing that it was not inconsistent with the spirit of the Constitution and to overthrowing the argument stated above. Mr. Justice Strong suggests, as an answer, that the grant of power to punish counterfeiting, treason, &c., has been held not to exclude an implied power to make other offences punishable (citing United States v. Marigold, 9 How. 560). See also United States v. Dewitt, 9 Wall. 41, 44, post, 439, n. 1. The implied power, moreover, need not be deduced from any one of those expressly granted, but may be inferred from the sum of all the powers which make the United States a nation, and the fact that whatever power there is over the currency is vested in Congress. Field, J., in his able dissenting opinion, inter alia, reproduces the argument stated above, with great force. 12 Wall. 649, 655. See Trebilcock v. Wilson, post, 326, n. 1; Railroad Co. v. Johnson, 15 Wall. 195. [See especially Legal Tender Case, 110 U. S. 421.]

The question was deemed of very great importance, and was elaborately argued. It was held that a general power was given to Congress to lay and collect taxes of every kind or nature, without any restraint. They had plenary power over every species of taxable property, except exports. But there were two rules prescribed for their government: the rule of uniformity, and the rule of apportionment. Three kinds of taxes, viz. duties, imposts, and excises, were to be laid by the first rule; and capitation, and other direct taxes, by the second rule. If there were any other species of taxes, as the court seemed to suppose there might be, that were not direct, and not included within the words "duties, imposts, or excises," they were to be laid by the rule of uniformity or not, as Congress should think proper

and reasonable.

The Constitution contemplated no taxes as direct taxes, but such as Congress could lay in proportion to the census; and the rule of apportionment could not reasonably apply to a tax on carriages, nor could the tax on carriages be laid by that rule, without very great inequality and injustice. If two states, equal in census, were each to pay 8,000 dollars, by a tax on carriages, {256} and in one state there were 100 carriages, and in another 1,000, the tax on each carriage would be ten times as much in one state as in the other. While A., in the one state, would pay for his carriage eight dollars, B., in the other state, would pay for his carriage eighty dollars. In this way, it was shown by the court, that the notion that a tax on carriages was a direct tax, within the purview of the Constitution, and to be apportioned according to the census, would lead to the grossest abuse and oppression. This argument was conclusive against the construction set up, and the tax on carriages was considered as included within the power to lay duties; and the better opinion seemed to be, that the direct taxes contemplated by the Constitution were only two, viz., a capitation, or poll tax, and a tax on land.1 (x) The court concluded that

1 This is sustained by the language of the Supreme Court in later cases, with the possible addition of taxes on personal

property by general valuation and assessment of the various descriptions possessed within the several states. Chief Justice

(x) See Springer v. United States, 102 U. S. 586; Scholey v. Rew, 23 Wall. 331; Minot v. Winthrop, 161 Mass. 113, 119,

128. The Federal income tax of 1894 upon personal "gains, profits, and income," is unconstitutional, as being a

the tax on carriages was an indirect tax on expense or consumption, and, therefore, properly laid, pursuant to the rule of uniformity.

In Loughborough v. Blake, (a) the power of taxation was again brought under judicial discussion. The question was immediately of a local nature, and it was, whether Congress had the right to impose a direct tax upon the unrepresented District of Columbia; but there were principles involved in the decision

(a) 5 Wheaton, 317.

Chase intimates that the definitions of direct taxes by political economists cannot be used satisfactorily for the purpose of construing the phrase in the Constitution. Thus, a tax on the circulation by

banks of state bank notes is held not to be direct. Veazie Bank v. Fenno, 8 Wall. 533, 541, 546; and so of a tax on incomes of insurance companies. Pacific Ins. Co. v. Soule, 7 Wall. 433.

direct tax. Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429; 158 U. S. 601. See 29 Am. L .Rev. 550; 9 Harv. L. Rev. 198. Succession taxes and taxes upon the franchises of corporations are now usually held to be excises, and not direct taxes. See Minot v. Winthrop, 162 Mass. 113, 119, 120, 128, and cases there cited. A direct tax upon lands does not, of itself, create any liability on the part of the States to pay the tax. United States v. Louisiana, 123 U. S. 32.

Statutes which impose taxes, though not mandatory in terms, are to be so regarded when necessary for the tax-payer's protection. Erhardt v. Schroeder, 155 U. S. 124.

The provision of the U. S. Rev. Stats. § 3224, that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court," applies not only to valid assessments, but also to any tax which the government claims to be constitutionally valid. Snyder v. Marks, 109 U. S. 189; Kensett v. Stivers, 18 Blatch. 397; Miles v. Johnson, 59 Fed. Rep. 38; Alkan v. Bean, 8 Biss. 83. The same principle should also, it seems, be applied to unjust taxation by a State, especially when the entire tax is

not illegal, the remedy of the tax-payer being, after payment, to sue for re-payment. State Railway Tax Cases, 92 U. S. 516, 617; Tennessee v. Sneed, 96 U. S. 69; Pacific Express Co. v. Seibert, 44 Fed. Rep. 310; 142 U. S. 339; McTwiggan v. Hunter (R. I.), 30 Atl. Rep. 962; Odlin v. Woodruff, 31 Fla. 160; 22 L. R. A. 699, note. A State statute, which provides a remedy by injunction against the collection of an illegal tax, may be enforced by a Federal court in the State, although the statute also provides for recovering back the tax when paid, by an action at law. Meyers v. Shields, 61 Fed. Rep. 713.

A suit against a State officer to restrain the assessment or collection of a State tax, is not a suit against the State, though it is named as a party, and it may be prosecuted in the Federal Courts. Poindexter v. Greenhow, 114 U. S. 270; Secor v. Singleton, 35 Fed. Rep. 376. If a State officer seizes for taxes, and refuses to surrender, property in the hands of the receiver of a Federal court, a proceeding for contempt for that cause is not a suit against the State. Ex parte Tyler, 149 U. S. 164; see infra, 297, notes.

which had an extensive and important relation to the whole United States.

It was declared that the power to tax extended equally to all places over which the government extended. It extended as well to the District of Columbia, and to the territories which were not represented in Congress, as to the rest of the United States. Though duties were to be uniform, and taxes were to be apportioned according to numbers, the power was coextensive with the empire. The inhabitants of the then territories of Michigan, and of Florida, and Arkansas, for instance, as well as the District of Columbia, though without any representation in Congress, were subject to the {257} full operation of the power of taxation, equally as the people of New York or Massachusetts. But the court held that Congress are not bound, though they may, in their discretion, extend a direct tax to the territories as well as to the states. A direct tax, if laid at all, must be laid on every state conformably to the census, and therefore Congress has no power to exempt any state from its due share of the burden. But it was understood that Congress were under no necessity of extending a tax to the unrepresented District of Columbia, and to the territories; though if they be taxed, then the Constitution gives the rule of assessment. This construction was admitted to be most convenient, for the expense of assessing and collecting a tax in a territory, as the Northwest Territory, for instance, then existed, might exceed the amount of the tax. Here was an anomalous case in our government, in which representation and taxation are not inseparable, though the principle that the power of taxation could not rightfully exist without representation was a fundamental ground of our Revolution. The court did not consider a departure from a general principle, in this case, to be very material or important, because the case was that of territories which were in a state of infancy, advancing to manhood, and looking forward to complete equality, as soon as that state of manhood should be attained. It was the case, also, of the District of Columbia, which had voluntarily relinquished the right of representation, and adopted the whole body of Congress for its legitimate government.

4. Pre-emption of Indian Lands. — Congress have the exclusive right of pre-emption to all Indian lands lying within the territo-

ries of the United States. This was so decided in the case of Johnson v. M'lntosh. (a) Upon the doctrine of the court in that case, and in that of Fletcher v. Peck, (b) the United States own the soil as well as the jurisdiction of the immense tracts of unpatented lands included within their territories, and of {258} all the productive funds which those lands may hereafter create. The title is in the United States by the treaty of peace with Great Britain, and by subsequent cessions from France and Spain, and by cessions from the individual states; and the Indians have only a right of occupancy, and the United States possess the legal title, subject to that occupancy, and with an absolute and exclusive right to extinguish the Indian title of occupancy, either by conquest or purchase. (x) The title of the European nations, and which passed to the United States, to this immense territorial empire, was founded on discovery and conquest; and, by the European customary law of nations, prior discovery gave this title to the soil, subject to the possessory right of the natives, and which occupancy was all the right that European conquerors and discoverers, and which the United States, as succeeding to their title, would admit to reside in the native Indians. The principle is, that the Indians are to be considered merely as occupants, to be protected while in peace in the possession of their lands, but to be deemed incapable of transferring the absolute title to any other than the sovereign of the country. The Constitution (a) gave to Congress the power to dispose of, and to make all needful rules and regulations respecting the territory or other property belonging to the United States, and to admit new states into the Union. Since the Constitution was formed, the value and efficacy of this power have been magnified to an incalculable extent, by the pur-

(a) 8 Wheaton, 543.

(b) 6 Cranch, 142, 143.

(a) Art. 4, sec. 3.

(x) The United States, having the complete control of the fee of lands reserved by treaty for Indian occupation, conveys both title and right of possession when it makes such a grant as a railroad right of way, which necessarily involves possession. Missouri, K. & T. Ry. Co. v. Roberts, 152 U. S. 114; see Buttz v. No. Pac. R. Co., 119 U. S. 55; United States v. Ordway, 30 Fed. Rep. 30; Denny v.

Dodson, 32 id. 899. But lands which are reserved from sale, &c., until the President decides upon their being set aside as an Indian reservation, cannot pass by a railroad grant prior to his decision. No. Pac. R. Co. v. Maclay, 61 Fed. Rep. 554. A State legislature cannot authorize leases on Indian lands. Buffalo, &c. R. Co. v. Lavery, 27 N. Y. S. 443.

chase of Louisiana and Florida; and, under the doctrine contained in the cases I have referred to, Congress have a large and magnificent portion of territory under their absolute control and disposal. This immense property has become national and productive stock, and Congress, in the administration of this stock, have erected temporary governments under the provisions of the ordinance of the Congress under the confederation, and under the constitutional power; and they have appointed the officers to each territory, and allowed delegates in Congress to be chosen by the {259} inhabitants every second year, and with a right to debate, but not to vote, in the House of Representatives. (a)

The unpatented lands belonging to the United States, within the states of Ohio, Indiana, Illinois, Michigan, and the territory of Wisconsin, arose from cessions from the states of Virginia, Massachusetts, Connecticut, and New York, before the adoption of the present Constitution of the United States. (b) North

(a) Ordinance of Congress of 18th July, 1787. Acts of Congress of August 7, 1789; January 14, 1805; March 3, 1817; February 16, 1819; April 24, 1820; March 30, 1822. The acquisition of the foreign territories of Louisiana and Florida by the United States, by purchase, was to be supported only by a very liberal and latitudinary construction of the incidental powers of the government under the Constitution. The objections to such a construction, which were urged at the time, are stated in 3 Story's Comm. 156-161. But the constitutionality of the acquisition of foreign territory is vindicated, established, and settled by the Supreme Court, as one necessarily flowing from the power of the Union to make treaties. American Ins. Co. v. Canter, 1 Peters, 511. It belongs, therefore, upon that principle, exclusively to the President, with the advice and consent of two-thirds of the members of the Senate present to make the acquisition. But in 1845, Congress, by joint resolution, under the power in the Constitution (art. 4, sec. 3), that "new states may be admitted by the Congress into this Union," admitted the foreign and independent state of Texas into the Union as a separate state, upon terms to which Texas afterwards acceded. Resolution of Congress of March 1, 1845. This was giving a new legislative construction, of enormous efficacy and extent, to the constitutional power to acquire foreign states, and would appear to be contrary to the principle of construction recognized by the Supreme Court, that the annexation of foreign states, out of the limits of the United States, must be the act of the treaty-making power.

(b) That of New York was made March 1, 1781, under the authority of the act of the legislature of that state, of the 19th February, 1780. That of Virginia was made March 1, 1784, under the authority of an act of the 20th December, 1783. That of Massachusetts, on the 19th of April, 1785, under the authority of the acts of that state, of 13th November, 1784, and 17th March, 1785; and that of Connecticut on the 14th September, 1786, under the authority of an act of that state of May, 1786. That of South Carolina, in August, 1787. The title to the lands belonging to the United States west of the Mississippi is supported by treaties made with Great Britain,

Carolina, South Carolina, and Georgia made similar cessions of their unpatented lands, and which now compose the states of Tennessee, Alabama, and Mississippi. The lands so ceded were intended to be, and were considered, as constituting a common fund, for the benefit of the Union; and when the states in which the lands are now situated were admitted into the Union, the proprietary right of the United States to those unimproved and unsold lands was recognized. Those lands belong to the United States, as part of their public domain, subject to the Indian right and title of occupancy, in all cases in which the same has not been lawfully extinguished. It is not to be concealed, however, that the title of the United States to the unappropriated lands lying within the limits of the separate states has been seriously questioned by some of them, as by Mississippi, Illinois, and Indiana. The latter state, in January, 1829, advanced a claim to the exclusive right to the soil and eminent domain of all the unappropriated lands within her acknowledgd boundaries; and in 1830, Mississippi put forth a similar claim. But the cessions of the territorial claims of the separate states to the western country were called for by the resolutions of Congress of the 6th September and 10th of October, 1780, and were made upon the basis that they were to be "disposed of for the common benefit of the United States." (e) It was stipulated by Congress, in the last resolution, that the lands to be ceded should be disposed of for the common benefit of the United States; be settled and formed into distinct republican states, with a suitable extent of territory; become members of the American Union, and have the same rights of sovereignty, freedom, and independence as the other states. It was likewise provided by {260} the ordinance of July 13, 1787, for the government of the territory of the United States northwest of the river Ohio, that the legislatures of the districts or new states to be erected therein should "never interfere with the primary disposal of the soil by the United States, in Congress assembled, nor with any regula-

in 1783, 1818, 1827, and with France, in 1803, and with Spain, in 1820, and with Mexico, in 1831. Vide Elliott's American Diplomatic Code, Washington, 1834, 2 vols., which is a most valuable compilation of all the treaties down to that date, in which the United States have any interest.

(c) Journals of the Confed. Congress, vi. 123, 147; viii. 256, 259; ix. 47; x. 92; xi. 160; xii. 92.

tions Congress may find necessary for securing the title in such soil to the bona fide purchaser. (a)

5. Effect of State Judgments. — By the Constitution of the United States, Congress were, by general laws, to prescribe the manner in which the public acts, records, and judicial proceedings of every state should be proved, and the effect thereof in every other state. (x) In pursuance of this power, Congress, by the act

(a) For disposing of the lands of the United States, numerous land offices have been established by acts of Congress in the states of Ohio, Indiana, Illinois, Missouri, Louisiana, Mississippi, Alabama, Michigan, and Arkansas, and in the territories of Wisconsin, Iowa, and Florida. See Gordon, Digest of the Laws of the United States, 1837, 321-389, in which all the statute provisions relative to the disposition of the public domain of the United States are collected, and clearly and neatly arranged and digested. By the act of Congress of September 4, 1841, c. 16, ten per cent of the net proceeds of the sales of the public lands, to be made subsequent to the 31st of December, 1841, within the limits of the states of Ohio, Indiana, Illinois, Alabama, Missouri, Mississippi, Louisiana, Arkansas, and Michigan, were to be paid to those states respectively; and the residue of those net proceeds, subject to certain provisos, should be divided, half-yearly, among the twenty-six states of the Union, and the District of Columbia, and the territories of Wisconsin, Iowa, and Florida, according to their respective federal representative population, as ascertained by the last census, to be applied by the legislatures of the said states to such purposes as they should direct.

(x) The constitutional provision applies equally to the State courts and to the courts of the several territories. Susenbach v. Wagner, 41 Minn. 108. The implication from this requirement is that the public acts of each State are to be given the same effect by the courts of other jurisdictions that they have by law and usage at home; and for this purpose the law of such State must be proved as a fact. Chicago & Alton Railroad v. Wiggins Ferry Co. 119 U. S. 615. But in the Federal courts, the Circuit Court, and the Supreme Court on appeal or error therefrom, take judicial notice of the laws of every State in the Union, as domestic laws. Hanley v. Douoghue, 116 U. S. 1, 6; Fourth Nat. Bank v. Fraucklyn, 120 U. S. 747, 751; Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 445. As to suits, the true view appears to be that a judgment in one State, entered according to its laws and valid there, may be enforced in another

State, although an original judgment there entered in that form would be invalid. Renaud v. Abbott, 116 U. S. 277; Stewart v. Stewart, 27 W. Va. 167; Ritter v. Hoffman, 35 Kansas, 215; Simmons v. Clark, 56 Ill. 96; but see Wilbur v. Abbott, 60 N. H. 40. Such a judgment differs from a judgment recovered in a foreign country in no other respect than in not being re-examinable on its merits, not impeachable for fraud in obtaining it, if rendered by a court having jurisdiction of the cause and of the parties. Hanley v. Donoghue, 116 U. S. 1, 4; Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 292.

The decrees of State probate courts cannot, if they have jurisdiction, be collaterally attacked in the courts of other States or of the United States. Herron v. Dater, 120 U. S. 464; Teach v. Rice, 131 U. S. 293; Simmons v. Saul, 138 U. S. 439; Holmes v. Oregon & Cal. R. Co., 9 Fed. Rep. 229; Mooney v. Hinds, 160 Mass.

of May 26, 1790, provided the mode by which records and judicial proceedings should be authenticated, and then declared

469; Loring v. Arnold, 15 R. I. 428; Drake v. Curtis, 88 Mo. 644.

"The forbearance which courts of coordinate jurisdiction, administered under a single system, exercise towards 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." Covell v. Heyrnan, 111 U. S. 176, 182; Ex parte Royall, 117 U. S. 241, 252. A judgment rendered in one State can have elsewhere no greater credit than it has there, and if it can there be attacked for want of jurisdiction, it can be so attacked also in another State. First Nat. Bank v. Cunningham, 48 Fed. Rep. 510; Sharon v. Hill, 26 id. 337, 391; Van Cleaf v. Burns, 118 N. Y. 549. The judgments and decrees of a U. S. circuit court in one State are to be there accorded the same effect in all respects as, under like circumstances, would be accorded to a State tribunal of equal authority; and it is a Federal question whether the State court has thus allowed to them due effect. Crescent City L. S. Co. v. Butchers' Union, 120 U. S. 141; Dupasseur v. Rochereau, 21 Wall. 130. A judgment in personam rendered against a corporation in the Federal court of one State is conclusive on the merits, as a cause of action, in every other State. Chicago & A. Bridge Co. v. Anglo-American Packing Co., 46 Fed. Rep. 584. An action of replevin cannot be maintained in a State court to recover property attached under process of a Federal court. Krippendorf v. Hyde, 110 U. S. 276; Tua v. Carriere, 117 U. S. 201. By the U. S. Rev. Stats., § 720, the Federal courts are forbidden to enjoin proceedings in any court of a

State, except in bankruptcy matters. See Chapman v. Brewer, 114 U. S. 158; Sargent v. Helton, 115 U. S. 348; Hemsley v. Myers, 45 Fed. Rep. 283; New York & N E. R. Co. v. Woodruff, 42 id. 468; Tuchman v. Welch, id. 548; Dillon v. Kansas City S. B. Ry. Co., 43 id. 109; Gilbert v. Quimby, 1 id. 111; Bridges v. Sheldon, 18 Blatch. 517. And as the cause of action is not changed by the judgment, the merger of the original demand in the judgment does not preclude the courts of another State, in which the judgment is sued on, from looking into the nature of the original claim to ascertain whether the court rendering the judgment was authorized to enforce the claim. Wisconsin v. Pelican Ins. Co., 127 U. S. 265; Huntington v. Attrill, 146 U. S. 657. Such a judgment, so far as it assumes to decide a matter not covered by the pleadings, nor within the issue, is a nullity. Reynolds v. Stockton, 43 N. J. Eq. 211. The judgment of a State court may be collaterally attacked in the Federal courts for want of jurisdiction. Swift v. Meyers, 37 Fed. Rep. 37; Southern Ins. Co. v. Wolrerton Hardware Co. (Texas), 19 S. W. Rep. 615. And it is now settled in those courts that want of jurisdiction to bind the person may be shown in an action upon the judgment against the person, notwithstanding the recitals of the record as to service or appearance. Thompson v. Whitman, 18 Wall. 457; Knowles v. Gaslight Co., 19 Wall. 58; Hall v. Lanning, 91 U. S. 160; Graham v. Spencer, 14 Fed. Rep. 603; Downs v. Allen, 22 id. 805; see also 74 Am. Dec. 652; Gibson v. Manufacturers' Fire Ins. Co., 144 Mass. 81; Rothrock v. Dwelling-House Ins. Co., 161 Mass. 423. The weight of authority in the State courts is now, and should be, to the same effect, as the decisions of the U. S. Supreme Court upon a provision of the Federal Constitution are binding upon

that they should have such faith and credit given to them in every court within the United States as they had by law or usage

them. Eliot v. McCormick, 144 Mass. 10; Hoffman v. Newell, 21 N. Y. S. 912; 20 id. 432; Teel v. Yost, 128 N. Y. 387; Martin v. Central Vermont R. Co., 50 Hun, 347; Renier v. Hurlbut, 81 Wis. 24; Webster v. Hunter, 50 Iowa, 215; Frothingham v. Barnes, 9 R. I. 474; Wood v. Wood, 78 Ky. 624; Crumlish v. Central Imp. Co., 38 W. Va. 390; Morgan v. Morgan, 1 Texas Civil App. 315; Henry v. Allen, 82 Texas, 35; Hall v. Mackay, 78 id. 248; Napton v. Leaton, 71 Mo. 358; Brown v. Eaton, 98 Ind. 591; Mitchell v. Ferris, 5 Houst. (Del.) 34; Price v. Shaeffer, 161 Penn. St. 530: Guthrie v. Lowry, 84 Penn. St. 533; Aultman v. Mills, 9 Wash. 68; Sammis v. Wightman, 31 Fla. 10; Semple v. Gleun, 91 Ala. 245; Jardine v. Reichert, 39 N. J. L. 165; Bowler v. Huston, 30 Gratt. 266; see also 74 Am. Dec. 652; Bigelow on Estoppel (4th ed.), ch. 6.

When the personal liability of the stockholders in a corporation has been adjudged and fixed by the courts of the State which created the corporation, and a suit is brought on such a judgment in another State, full faith and credit are to be given to the judgment of the domestic State, and the U. S. Supreme Court may review the judgment of the second court when that court refuses to enforce the first judgment on the ground that it was rendered without jurisdiction, or that it was founded on a penalty. Missouri v. Andriano, 138 U. S. 496; Huntington v. Attrill, 146 U. S. 657; Glenn v. Garth, 147 U. S. 360; see Bicknell v. Comstock, 113 U. S. 149; Chicago & Alton R. Co. v. Wiggins Ferry Co., 119 U. S. 615.

The presumption is in favor of the jurisdiction of a foreign court of record rendering judgment. Bailey v. Martin, 119 Ind. 103; Gunn v. Peakes, 36 Minn. 177. When the court has jurisdiction of the subject-matter and of the defendant, a

judgment by default cannot be collaterally attacked. Pendexter v. Cole (N. H.), 20 Atl. Rep. 331. So an unreversed judgment or decree of a court of one State will not be reversed by the courts of another State for fraud, misrepresentation, or negligence and mistake on the defendant's part. Christmas v. Russell, 5 Wall. 290; Mooney v. Hinds, 160 Mass. 469; Ambler v. Whipple, 131 Ill. 311; see White v. Reid, 24 N. Y. S. 290. If an appeal from the judgment does not stay it in the domestic court, the pendency of an appeal does not bar a suit on the judgment in another State. Clark v. Child, 136 Mass. 344; Dow v. Blake, 148 Ill. 76; Gaines's Succession, 45 La. Ann. 1237. A personal judgment obtained in one State by publication and mailing does not bind the defendant personally, he being and remaining in another State. Freeman v. Alderson, 119 U. S. 185; New York Life Ins. Co. v. Aitkin, 125 N. Y. 660.

If property is seized by attachment, the court first acquiring jurisdiction over it may retain it in its custody until final judgment or even until the judgment is satisfied. Covel v. Heyman, 111 U. S. 176; Heidritter v. Elizabeth Oil-Cloth Co., 112 U. S. 294; Gates v. Bucki, 53 Fed. Rep. 961; Porter v. Davidson, 62 id. 626; Lockhart v. Locke, 42 Ark. 17; Whiting v. Burger, 78 Maine, 287.

The pendency of an action in one jurisdiction does not bar or abate another suit between the same parties, involving the same issues, in a court of co-ordinate jurisdiction, when its jurisdiction is exercised by personal service and not by a seizure of 'property. Stanton v. Embrey, 93 U. S. 548, 554; Loring v. Marsh, 2 Cliff. 311, 322; Brooks v. Mills County, 4 Dillon, 524; Pierce v. Feagans, 39 Fed. Rep. 587; Liggett v. Glenn, 51 id. 381; Dwight v. Central Vermont R. Co., 20

in the courts of the state from whence the records were taken. Under this act it was decided, in the case of Mills v. Duryee, (b) that if a judgment, duly authenticated, had, in the state court from whence it was taken, the faith and credit of the highest nature, viz., record evidence, it must have the same faith and credit in every other court. It was declaring the effect of the record, to declare the faith and credit that were to be given to it. The Constitution intended something more than to make the judgments of state courts prima facie evidence only. It contemplated a power in Congress to give a conclusive effect to such judgments. A judgment is, therefore, conclusive in every other state, if a court of the particular state where it was rendered would hold it conclusive. Nil debet is not a good plea in a suit on a judgment in another state, because not a good plea in such state. Nul tiel record is the proper plea in such a case. The same decision was followed in Hampton v. M'Connel, (a) and the doctrine contained {261} in it may now be considered as the settled law of the land. It is not, however, to be understood that nul tiel record, is, in all cases, the necessary plea; but any special plea may be pleaded which would be good to avoid the judgment in the state where it was pronounced. (a) And in Mayhew v. Thateher, (b) the court would seem to imply

(b) 7 Cranch, 481.

(c) 3 Wheaton, 234; and in Wernwag v. Pawling, 5 Gill & Johns. 500.

(a) Shumway v. Stillman, 4 Cowen, 292.

(b) 6 Wheaton, 129. — In Thurber v. Blackbourne, 1 N. H. 242, it was held that nil debet was a good plea to debt on a judgment of another state when it did not appear by the record that the defendant had notice of the suit. And in Spencer v. Brockway, 1 Ohio, 259; Holt v. Alloway, 2 Blackf. (Ind.) 108, and Hoxie v. Wright, 2 Vermont, 263, the judgment of another state, regularly obtained, when the defendant had been served with process, or had otherwise appeared, was held to be conclusive evidence of the debt. But the defendant must have had due notice to appear, and be subject to the jurisdiction of the court, or if a foreigner or non-resident, he must have actually appeared to the suit, or the judgment of another state will not be deemed of any validity. This is a plain principle of justice, which pervades the jurisprudence of this and of all other countries. Killburn v. Woodworth, 5 Johns. 37; Aldrich v. Kinney, 4 Conn. 380; Bissell v, Briggs, 9 Mass. 462; Fisher v. Lane, 3 Wils. 297; Buchanan v. Rucker, 9 East, 192; Douglas v. Forrest, 4 Bing. 686, 702; Becquet v. MacCarthy, 2 Barn. & Adol. 951; Bruce v. Wait, 1 Mann. & Gr. 1; Pawling v. Bird, 13 Johns. 192; Earthman v. Jones, 2 Yerger, 484; Miller v. Miller, 1 Bailey (S. C.), 242; Benton v. Burgot, 10 Serg. & Rawle, 240; Rogers v. Coleman,

Blatch. 200; Gay v. Brierfield Coal Co., 94 Ala. 303; Ruegger v. Indianapolis R.

Co., 103 Ill. 449; Hollister v. Stewart, 111 N. Y. 644.

that a judgment in one state, founded on an attachment in rem, would not be conclusive evidence of the debt in other

states, if the defendant {262} had not personal notice of the suit, so as to have enabled him to defend it.1

Hardin, 413; Borden v. Fitch, 15 Johns. 121; Hall v. Williams, 6 Pick. 232; Bates v. Delavan, 5 Paige, 305; Bradshaw v. Heath, 13 Wendell, 407. See also infra, ii. 120. The doctrine in Mills v. Duryee is to be taken with the qualification that in all instances the jurisdiction of the court rendering the judgment may be inquired into, and the plea of nil debet will allow the defendant to show that the court had no jurisdiction over his person. It is only when the jurisdiction of the court in another state is not impeached, either as to the subject-matter or the person, that the record of the judgment is entitled to full faith and credit. The court must hare had jurisdiction, not only of the cause, but of the parties, and in that case the judgment is final and conclusive. If the suit in another state was commenced by the attachment of property, the defendant may plead in bar, that no process was served on him, and that he never appeared, either in person or by attorney. Starbuck v. Murray, 5 Wendell, 148; Shumway v. Stillman, 6 Wendell, 447; Wilson v. Niles, 2 Hall (N. Y.), 358; Gleason v. Dodd, 4 Metcalf, 333; Story, Comm. on the Conflict of Laws, §§ 586-590; Rangely v. Webster, 11 N. H. 299. But an important distinction is here to be observed, that a proceeding by foreign attachment, and against garnishees to judgment and execution, if binding in the state, is conclusive everywhere as a proceeding in rem against movable property and debts attached or garnished; but the judgment is of no force against the person of the debtor who had not been served with process, or appeared in the foreign attachment, nor against his property in another jurisdiction. Cochran v. Fitch, 1 Sandf. Ch. 142. The process by attachment of property of, and of debts due to non-residents, or of persons absent from the jurisdiction, will subject the property attached to execution upon the judgment or decree founded on the process; but it is considered as a mere proceeding in rem, and not personally binding, or having any extra-territorial force or obligation. Story, Comm. on the Conflict of Laws, § 568; Chew v. Randolph, Walker (Miss.), 1; Overstreet v. Shannon, 1 Mo. 529 [375 of republication]. A special plea in bar of a suit on a judgment in another state, to be valid, must deny, by positive averments, every fact which would go to show that the court in another state had jurisdiction of the person, or of the subject-matter. Harrod v. Barretto, 1 Hall (N. Y.), 155. [A judgment of another state may be claimed to be used in one of the following ways: (1.) As evidence. (2.) As the foundation of a right giving a cause of action. (3.) As a bar to an action. (4.) As a judgment on which execution is claimed. It may, in fact, be used in any of the first three ways, but not in the fourth. (See notes, supra.) Burnley v. Stevenson, 24 Ohio St. 474; Turley v. Dreyfus, 33 La. Ann. 885. — B.]

1 Judgments of other States. — As to the necessity of notice mentioned in the note (b) of the last page, see D'Arcy v. Ketchum, 11 How. 165; Christmas v. Russell, 5 Wall. 290, 305. As to appellate proceedings, see Nations v. Johnson, 24 How. 195.

If the record does not recite the facts on which the court of the other state

founded its jurisdiction, the parties are said to he at liberty to show that jurisdiction had not been acquired. Wilcox v. Kassick, 2 Mich. 165; Coit v. Haven, 30 Conn. 190, 198. Although if the court is one of general jurisdiction, the presumption is in favor of the validity of its proceedings. Dunbar v. Hallowell, 34 Ill. 168; Folger v. Columbian Ins. Co., 99 Mass.

6. Power of Congress over the Militia. — Congress have authority to provide for calling forth the militia, to execute the laws of the

267, 273; Buffum v. Stimpson, 5 Allen, 591; Jarvis v. Robinson, 21 Wis. 523. See Miller v. United States, 11 Wall. 268, 299. But see Warren v. McCarthy, 25 Ill. 95, 103; Smith v. Mulliken, 2 Minn. 319. Except in case of a special statutory authority, with regard to which such courts stand on the same footing with courts of limited jurisdiction. Wyatt v. Rambo, 29 Ala. 510, 521, 522; Commonwealth v. Blood, 97 Mass. 538; Folger v. Columbian Ins. Co., 99 Mass. 267; Allen v. Blunt, 1 Blatchf. 480; [Galpin v. Page, 18 Wall. 35.] So, if the record recites an appearance by attorney, these cases generally allow the attorney's authority to be disproved. Shelton v. Tiffin, 6 How. 163, 186; Harshey v. Blackmarr, 20 Iowa, 161, 173; Kerr v. Kerr, 41 N. Y. 272, 275; Lawrence v. Jarvis, 32 Ill. 304. Contra, Warren v. Lusk, 16 Mo. 102; Baker v. Stonebreaker, 34 Mo. 172.

But when the record recites facts sufficient to give the court jurisdiction, including such matters as service of process on the defendant or his personal appearance, the better opinion seems to be that those facts cannot be controverted by the parties in another state. Field v. Gibhs, Peters, C. C. 155; Wilcox v. Kassick, 2 Mich. 165; Lincoln v. Tower, 2 McLean, 473; Thompson v. Emmert, 4 McL. 96; Pritchett v. Clark, 4 Har. (Del.) 280; Wescott v. Brown, 13 Ind. 83; Lawrence v. Jarvis, 32 Ill. 304; Lapham v. Briggs, 27 Vt. 26; Wilson v. Jackson, 10 Mo. 329, 334; Shelton v. Tiffin, 6 How. 163, 186. [Just as similar recitals in the record of a domestic court of limited jurisdiction would be conclusive. Sheldon v. Wright, 1 Seld. (5 N. Y.) 497, 516; Wyatt v. Rambo, 29 Ala. 510. Contra, Sears v. Terry, 26 Conn. 272 . Although there are weighty decisions and dicta that the jurisdiction of the court of another state may be inquired into in all cases.

Starbuck v. Murray, 5 Wend. 148; Carleton v. Bickford, 13 Gray, 591; Folger v. Columbian Ins. Co., 99 Mass. 267, 273; Kerr v. Kerr, 41 N. Y. 272, 275; Noyes v. Butler, 6 Barb. 613; Hoffman v. Hoffman, 46 N. Y. 30; Norwood v. Cobb, 24 Texas, 551; Coit v. Haven, 30 Conn. 190, 198; [Christmas v. Russell, 5 Wall. 290, 305; but see Cheever v. Wilson, 9 Wall. 108, 123;] Rape v. Heaton, 9 Wis. 328. In Hendrick v. Whittemore, 105 Mass. 23, 28, Carleton v. Bickford is cited, and it is there said that the reason domestic judgments cannot be thus impeached collaterally by the parties thereto, is because the remedy by review or writ of error is held to be more appropriate.

Other cases to the point that judgments obtained after an attachment of a nonresident defendant's property, but without personal service or appearance by him, are not binding in personam in other states, are Easterly v. Goodwin, 35 Conn. 273; McVicker v. Beedy, 31 Me. 314. See Wright v. Boynton, 37 N. H. 9; Cooper v. Reynolds, 10 Wall. 308, 318; [Eastman v. Wadleigh, 65 Me. 251.] The statement in these cases, and supra, 261, n. (b), that the attachment operates as a proceeding in rem, must be taken with great caution. Bold Buccleugh, 7 Moore, P. C. 267, 282; Megee v. Beirne, 39 Penn. St. 50. [In Windsor v. McVeigh, 93 U. S. 274, it was held that the jurisdiction gained by a simple seizure of property for condemnation is only sufficient to hold the same until the owner is notified and allowed to appear and defend, and that a final judgment without such notification and allowance is void. — B.]

But in a suit on a judgment obtained in another state, although the jurisdiction and notice to the defendant may be inquired into, it cannot be set up that the judgment was obtained by fraud. Christmas v. Russell, supra. In this case, also.

Union, suppress insurrections and repel invasions; and to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may he employed in the service of the United States; reserving to the States, respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress. (a) The President of the United States is to be the commander of the militia, when called into actual service. The act of 28th of February, 1795, authorized the President, in case of invasion, or of imminent danger of it, to call forth such number of militia most convenient to the scene of action as he might judge necessary. The militia so called out are made subject to the rules of war; and the law imposes a fine upon every delinquent, to be adjudged by a court-martial composed of militia officers only. These militia courts-martial are to be held and conducted in the manner prescribed by the articles of war; and the act of 18th of April, 1814, prescribes the manner of holding them.

During the war of 1812, the authority of the President of the United States over the militia became a subject of doubt and difficulty, and of a collision of opinion between the general government and the governments of some of the states. It was the opinion of the government of Connecticut that the militia could not be called out, upon the requisition of the general government, except in a case declared and founded upon the existence of one

(a) Const. art. 1, sec. 8.

a state law which in substance provided that judgments recovered in other states against citizens of that state should not be enforced in the courts of the latter, if the cause of action which was the foundation of the judgment would have been barred in her courts by her statutes of limita-

tions, was held unconstitutional for like reasons. But states may prescribe reasonable periods of limitation to actions on judgments obtained in other states. Ib. 300; Bank of Alabama v. Dalton, 9 How. 522; post, 419, n. 1.

It results from the general doctrine that a judgment recovered in another state is a bar to an action for the same cause and between the same parties.

McGilvray v. Avery, 30 Vt. 538; Child v. Eureka Powder Works, 45 N. H. 547; North Bank v. Brown, 50 Me. 214; [Harryman v. Roberts, 52 Md. 64. As to the effect given to state judgments by the United States courts, see St. Clair v. Cox, 106 U. S. 350; Pennoyer v. Neff, 95 U. S. 714; Mohr v. Manierre, 101 U. S. 417. — B.] Although an appeal is pending. Bank of North America v. Wheeler, 28 Conn. 433. The constitutional provision applies to a decree of divorce which is valid and effectual by the laws of the state where it was obtained. Cheever v, Wilson, 9 Wall. 108; post, ii. 117, n. 1. As to foreign judgments, see ii. 120, n. 1.

of the specified exigencies; that, when called out, they could not be taken from under the command of the officers duly appointed by the states, or placed under the immediate command of an officer of the army of the United States. Nor could the United States lawfully detach a portion of the privates from the body of the company to which they belonged, and which {263} was organized with proper officers. This would, in the opinion of the government of Connecticut, impair, and eventually destroy, the state militia. When the militia are duly called into the service of the United States, they must be called as militia, furnished with proper officers by the state.

Similar difficulties arose between the government of the United States and the State of Massachusetts, on the power of the national government over the militia. Both those states refused to furnish detachments of militia for the maritime frontier, on an exposition of the Constitution, which they deemed sound and just.

In Connecticut, the claim of the governor, to judge whether the exigency existed, authorizing a call of the militia of that state, or any portion of it, into the service of the Union, and the claim on the part of that state to retain the command of the militia, when duly ordered out, as against any subordinate officer of the army of the United States, were submitted to, and received the strong and decided sanction, not only of the governor and council of that state, but of the legislature itself. (a) In Massachusetts, the governor consulted the judges of the Supreme Judicial Court as to the true construction of the Constitution on these very interesting points. The judges of the Supreme Court were of opinion that it belonged to the governors of the several states to determine when any of the exigencies contemplated by the Constitution of the United States existed, so as to require them to place the militia, or any part {264} of it, in the service of the Union, and under the command of the President. It was observed, that the Constitution of the United States did not give that right, by any express term, to the President or Congress, and that the

(a) See Official Documents of the State of Connecticut, August, 1812. The jealousy of the exercise of any power (other than that of the local governments) over the militia was very strongly manifested by the legislature and people of Connecticut, as early as 1693, when they fearlessly and successfully resisted the claim of Governor Fletcher, of New York, resting on a commission for that purpose, from the king, to the exclusive command of the militia of Connecticut. 1 Trumbull's Hist. 410-414.

power to determine when the exigency existed was not prohibited to the states, and that it was, therefore, as of course, reserved to the states. A different construction would place all the militia in effect at the will of Congress, and produce a military consolidation of these states. The act of 28th of February, 1795, vested in the President the power of calling forth the militia when any one of the exigencies existed, and if to that be superadded the power of determining when the casus fœderis occurred, the militia would, in fact, be under the President's control.

As to the question how the militia were to be commanded, when duly called out, the judges were of opinion that the President alone, of all the officers acting under the United States, was authorized to command them, and that he must command them, as they were organized under officers appointed by the states. (x) The militia could not be placed under the command of any officer not of the militia, except that officer be the President of the United States. But the judges did not determine how the militia were to be commanded, in case of the absence of the President,

(x) Congress, under its constitutional power "to make rules for the government and regulation of the land and naval forces" cannot impair the constitutional authority of the President as Commander-in-chief, nor can the President evade the legislative regulations by military orders. Swaim v. United States, 28 Ct. Cl. 173. The President may place the militia under the command of an officer and require its service in any part of the country. Highsmith v. Ussery, 25 Texas, Sup. 108; see 2 Story on Const. § 1197; Dwight's History of the Hartford Convention, p. 249 et seq. By the U. S. Rev. Stats. §§ 5298, 5299, it is made lawful for the President, and also his duty, to secure the enforcement of Federal laws, when obstructed by insurrections or unlawful combinations, to employ the militia or the land and naval forces of the United States.

A State cannot prohibit its people from so keeping and bearing arms as to deprive the United States of their rightful resources, for maintaining public security; but when not restrained by its own Con-

stitution, a State may, by its laws, control and regulate all military organizations other than those authorized by the Federal militia laws (U. S. Rev. Stats. Title 16). Presser v. Illinois, 116 Ill. 252. A State law providing that the governor shall, before suppressing a riot, request the local authorities so to do, does not limit power conferred upon him by the State Constitution to call out the militia to at once execute the laws when the danger of riot is imminent. Chapin v. Ferry, 3 Wash. St. 386; see Lewis v. Lewelling, 53 Kansas, 201.

Under the U. S. Constitution, Art. 1, § 8, and U. S. Rev. Stats. § 1630, a State legislature or governor may provide for disbanding organized militia companies while in the service of the United States. People v. Hill, 126 N. Y. 497; 13 N. Y. S. 186, 637; see Proctor v. Stone, 1 Allen, 193. In the Fifth Amendment the words "when in actual service in time of war or public danger" apply to the militia only. Johnson v. Sayre, 158 U. S. 109.

and of a union of militia with troops of the United States; and whether they were to act under their separate officers, and in concert as allied forces, or whether the officer present who was highest in rank, be he of the militia or of the federal troops, was to command the whole, was a difficult and perplexing question, which the judges did not undertake to decide. (a)

The President of the United States declared that these constructions of the constitutional powers of the general government over the militia were novel and unfortunate,

{265} and he was evidently and decidedly of a different opinion. He observed, in his message to Congress on the

4th November, 1812, that if the authority of the United States to call into service and to command the militia could be thus frustrated, we were not one nation, for the purpose most of all requiring it. These embarrassing questions, and the high authority by which each side of the argument was supported, remained unsettled by the proper and final decision of the tribunal that is competent to put them to rest, until the case of Martin v. Mott, (a) in 1827. In that case it was decided and settled by the Supreme Court of the United States, that it belonged exclusively to the President to judge when the exigency arises, in which he had authority under the Constitution to call forth the militia, and that his decision was conclusive upon all other persons.

The case of Houston v. Moore (b) settled some important questions arising upon the national authority over the militia. The acts of Congress already referred to, and the act of 8th March, 1792, for establishing a uniform militia, were considered as covering the whole ground of congressional legislation over the subject. The manner in which the militia were to be organized, armed, disciplined, and governed was fully prescribed; provision was made for drafting, detaching, and calling forth the state quotas, when requested by the President. His orders were to be given to the chief executive magistrate, or to any militia officer he might think proper. Neglect or refusal to obey his orders was declared to be a public offence, and subjected the offender to trial and punishment, to be adjudged by a court-martial, and the mode of proceeding was perspicuously detailed.

(a) 8 Mass. 548. (a) 12 Wheaton, 19. (b) 5 Wheaton, 1. (x) (x) Upon this decision see Claflin v. Houseman, 93 U. S. 130, 141.

The question before the Supreme Court of the United States was, whether it was competent for a court-martial, deriving its jurisdiction under state authority, to try and punish militiamen, drafted, detached, and called forth by the President {266} into the service of the United States, and who had refused or neglected to obey the call. The court decided that the militia, when called into the service of the United States, were not to be considered as being in that service, or in the character of national militia, until they were mustered at the place of rendezvous, and that until then the state retained a right, concurrent with the government of the United States, to punish their delinquency. But after the militia had been called forth, and had entered into the service of the United States, their character changed from state to national militia, and the authority of the general government over such detachments was exclusive. Actual service was considered by Congress as the criterion of national militia, and the place of rendezvous was the terminus a quo the service, the pay, and subjection to the articles of war were to commence. And if the militia, when called into the service of the United States, refuse to obey the order, they remain within the military jurisdiction of the state, and it is competent for the state to provide for trying and punishing them by a state court-martial, to the extent and in the manner prescribed by the act of Congress. The act of Pennsylvania, of 1814, provided for punishing, by a state court-martial, delinquent militia-men, who were called into the service of the United States, and neglected or refused to serve; and they were to be punished by the infliction of the penalties prescribed by the act of Congress, and such an act was held not to be repugnant to the Constitution and laws of the United States. It was the lawful exercise of concurrent power, and could be concurrently exercised by the national and state courts-martial, as it was authorized by the laws of the State, and not prohibited by those of the United States. It would remain to be so exercised, until Congress should vest the power exclusively elsewhere, or until the states should devest their courts-martial of such a jurisdiction. This was the decision, in the first instance, of the Supreme {267} Court of Pennsylvania; (a) and it was affirmed, on appeal, by the majority of the Supreme Court of the United States.

(a) Moore v. Houston, 3 Serg. & Rawle, 169.

7. Power of Congress as to Internal Improvements. — The authority of Congress to appropriate public moneys for internal improvements has been much discussed on public occasions, and between the legislative and executive branches of the government; but the point has never been brought under judicial consideration.

It has been contended, that, under the power to establish post-offices and post-roads, and to regulate commerce among the states, and to raise moneys to provide for the general welfare, and as incident thereto, Congress have the power to set apart funds for internal improvements in the states, with their assent, by means of roads and canals. Such a power has been exercised to a certain extent. It has been the constant practice to allow to the new states a certain proportion of the proceeds arising from the sale of public lands, to be laid out in the construction of roads and canals within those states, or leading thereto. In 1806, Congress authorized a road to be opened from Nashville, in Tennessee, to Natchez; and in 1809, they authorized the canal of Carondelet, leading from Lake Pontchartrain, to be extended to the river Mississippi. So late as the 8th of August, 1846, Congress granted lands to aid in the improvement of the Fox and Wisconsin rivers, and to connect the same by a canal, in the State of Wisconsin. The Cumberland road was constructed under the act of March 29, 1806, and this road had been made under a covenant with the State of Ohio, by the act of April 30, 1802, that a portion of the proceeds of lands lying within that state should be applied to the opening of the roads leading to that state, with the consent of the states through which the road might pass. But the expenditures on that road far exceeded the proceeds of sales of public lands in Ohio, and, in 1817, the President of the United States objected to a bill, on the ground that the Constitution did not extend to making roads and canals, and improving watercourses through the different states; nor could the assent of those states confer the power. Afterwards, in 1822, the President objected to a bill appropriating money for repairing the Cumberland road, and establishing gates and tolls on it.

On these and other occasions there has been a great {268} and decided difference of opinion between Congress and the President on the constitutional question. President

Jefferson, in his message of December 2, 1806, and President Madison, in his message of December 3, 1816, equally denied any such power in Congress. On the other hand, it appears that Congress claim the power to lay out, construct, and improve post-roads, with the assent of the states through which they pass. They also claim the power to open, construct, and improve military roads on the like terms, and the right to cut canals through the several states, with their assent, for promoting and securing internal commerce, and for the more safe and economical transportation of military stores in time of war; and leaving, in all these cases, the jurisdictional right over the soil in the respective states. (a)

(a) In the case of Dickey v. Turnpike Road Co., 7 Dana, 113, the Kentucky Court of Appeals decided that the power given to Congress by the Constitution to establish post-roads, enabled them to make, repair, keep open, and improve post-roads, when they should deem the exercise of the power expedient. But in the exercise of the right of eminent domain on this subject, the United States have no right to adopt and use roads, bridges, and ferries, constructed and owned by states, corporations, or individuals, without their consent, or without making to the parties concerned just compensation. If the United States elect to use such accommodations, without the performance of such a previous condition, they stand upon the same footing, and are subject to the same tolls and regulations as private individuals. This important decision was well supported by sound reasoning. (x)

(x) Railroads and the streets used by letter-carriers are both "post-roads." Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1; Blackham v. Gresham, 16 Fed. Rep. 609; United States v. Easson, 18 id. 590. Such roads cannot be constructed by the general government without the State's consent, but it may establish such a road on a highway constructed by the State. Cleveland R. Co. v. Franklin Canal Co., 1 Pitts, L. Journ. 142. Under its constitutional power to establish post-offices and post-roads, Congress may regulate the entire postal service of the country. Ex parte Jackson, 96 U. S. 727. Such power carries with it as incident the power, to be exercised at the discretion of Congress, to prohibit the use of the mails for matter used in disseminating crime, immorality, or lotteries: In re Rapier, 143 U. S. 110; Horner v. United States, id. 207; but it does not

enable the postmaster general to bind the government by leasing a post-office for twenty years when there is no appropriation therefor. Chase v. United States, 155 U. S. 489; 44 Fed. Rep. 732. The general government may sue to enjoin obstructions to highways used in interstate commerce and in transporting the mails. In re Debs, 158 U. S. 564. The U.S. Rev. Stats. §3964, making railroads post-roads, and § 5264, allowing telegraph companies to use materials from public lands, do not appropriate, for the promotion of commerce, submerged tidelands over which the railroad or telegraph is constructed. Rumsey v. New York & N. E. R. Co., 63 Hun, 200; 137 N. Y. 563. Under the power to regulate commerce among the States, Congress can construct, or empower individuals or corporations to construct, railroads across the States and Territories of the United States. Califor-

In the inaugural address of President Adams, on the 4th of March, 1825, he alluded to this question, and his opinion seemed to be in favor of the constitutional right, and of the policy and

nia v. Central Pacific R. Co., 127 U. S. 1. It may likewise create a corporation to build a bridge across navigable water between two States, and to take private lands therefor, making just compensation. Luxton v. North River Bridge Co., 153 U. S. 525.

In order to regulate commerce, Congress may employ, as instruments, corporations created by itself or by the States, and it can grant a right of way to a railroad corporation for a railroad, telegraph, and telephone line. Cherokee Nation v. Southern Kansas Ry. Co., 135 U. S. 641. A lock and dam belonging to a corporation chartered by a State can be condemned by the United States only under the power to regulate foreign and interstate commerce. Monougahela Nav. Co. v. United States, 148 U. S. 312.

If just compensation is provided for, it may thus authorize the property of a riparian proprietor to be taken in order to facilitate navigation and commerce between the States, and for this purpose proceedings may be had in either the State or Federal courts. Re United States Petition, 96 N. Y. 227; Great Falls Manuf. Co. v. United States, 16 Ct. Cl. 160; 112 U. S. 645; Fort Leavenworth R. Co. v. Lowe, 114 U. S. 525; United States v. Irwin, 127 U. S. 125; In re Montgomery, 48 Fed. Rep. 896; 17 A. G. Op. 109, 137, 279, 453, 455; 18 id. 64, 66, 431, 481; see 25 U. S. at L. 357; Kimberly & Clark Co. v. Hewitt, 79 Wis. 334; Dunnington v. United States, 17 Wash. L. R. 344.

The United States, upon making just compensation, may by eminent domain take real estate in any State, with or without a concurrent act of such State, whenever needed for its use in the execution of any of its powers, as for arsenals, fortifications, light-houses, custom-houses,

court-houses, barracks, hospitals, post-offices, etc. Van Brocklin v. Tennessee, 117 U. S. 151, 154; Decker v. Baltimore & N. Y. R. Co., 30 Fed. Rep. 723; Hawkins Point Light-house, 39 id. 77j In re Secretary of the Treasury, 45 id. 396. If the general government acquires such land by purchase with the consent of the State legislature, it has exclusive jurisdiction there; if otherwise acquired, it is subject to exclusive Federal jurisdiction only with respect to the part used for public purposes. Fort Leavenworth R. Co. v. Lowe, 114 U. S. 525; Chicago & Pac. Ry. Co. v. McGlinn, id. 542; Benson v. United States, 146 U. S. 325; United States v. Bateman, 34 Fed. Rep. 86; 16 A. G. Op. 592. When land is thus acquired from a State by an Act of cession, the United States holds it only as prescribed in such Act; hence at Fortress Monroe, which was thus ceded by the State of Virginia, the civil laws of that State are in force, so far as they do not conflict with the Federal laws or military occupation. Ibid.; Crook v. Old Point Comfort Hotel Co., 54 Fed. Rep. 604. The provisions of the Fifth and Fourteenth Amendments that private property shall not be taken for public use without just compensation, or without due process of law, apply to eminent domain proceedings by the United States, but not to those taken by a State. In re Sawyer, 124 U. S. 200, 219; Wilson v. Baltimore & P. R. Co., 5 Del. Ch. 424.

The claim for compensation arises out of an implied contract, so as to be also with the jurisdiction of the Court of Claims. United States v. Great Falls Manuf. Co., 112 U. S. 645. The Act of Congress of July 15, 1882, authorizing such compensation to be determined by the Court of Claims without a jury is constitutional, although not requiring pay-

wisdom of the liberal application of the national resources to the internal improvement of the country. He intimated that speculative scruples on this subject would probably be solved by the practical blessings resulting from the application of the power, and the extent and limitations of the general government, in relation to this important interest, settled and acknowledged to the satisfaction of all. This declaration may be considered as withdrawing the influence of the official authority of the President from the side on which it has hitherto pressed, and adding

ment before the taking. Great Falls Manuf. Co. v. Garland, 25 Fed. Rep. 521; 124 U. S. 581. The United States cannot be sued, as upon an implied contract, for land devoted to the public use when the plaintiff's title has never been acknowledged; it has not, by statute, made itself liable for torts committed by its officers; and the settled rule that it is not so liable cannot be evaded by claiming upon an implied contract: Hill v. United States, 149 U. S. 593; German Bank v. United States, 148 U. S. 573; see United States v. Schwalby, 87 Texas 604; Merriam v. United States, 29 Ct. Cl. 250; Schillinger v. United States, 155 U. S. 163, Improvements in navigable waters which lessen the navigable character of a river but do not take private property, though impairing the usefulness of a wharf, constitute a tort for which damages cannot be recovered in the Court of Claims. Gibson v. United States, 29 Ct. Cl. 18.

The national government may also delegate to a State tribunal the power to fix the compensation that should be paid. United States v. Jones, 109 U. S. 513. A State statute, which is defective as to providing compensation for a national improvement, may be cured by Congress. Green Bay Canal Co. v. Kaukauna W. R. Co., 70 Wis. 635.

As Congress has both political and municipal authority over the District of Columbia, it can there condemn land for a public park. Shoemaker v. United States,

147 U. S. 282; United States v. Cooper, 20 D. C. 104.

The power of the respective States to engage in works of internal improvement is also limited. Thus a State legislature cannot empower a municipal corporation to buy and sell to its inhabitants wood and coal for fuel. Justices' Opinion, 155 Mass. 598. So a law authorizing the construction of an elevator, and the carrying on, by means thereof, of the business of storing and selling grain is in conflict with the Constitution of Minnesota, which prohibits the State from ever contracting debts for works of internal improvement, or being a party in carrying out such works. Rippe v. Becker, 56 Minn. 100. The police power of a State includes the licensing of intoxicating liquors: Rock County v. Edgerton (Wis.), 63 N. W. Rep. 291; and under the police power the State can assume the entire management of the sale of intoxicating liquors within its limits, as being dangerous to the peace, order, morals, health, and welfare of its citizens, though it provides for purchases and sales only through public agents. State v. Aiken, 42 S. C. 222; overruling McCullougn B. Brown, 41 S. C. 220: see Donald v. Scott, 67 Fed. Rep. 854. A telegraph corporation, which a municipal corporation permits to use its streets, is still, under the police power, subject to later State laws regulating but not substantially impairing its rights. People v. Squire, 145 U. S. 175.

it to the support of the preponderating opinion in favor of the competency of the power claimed by Congress. (b)

(b) In February, 1827, after an animated debate, the House of Representatives, by a vote of 101 to 67, voted to appropriate $30,000 for the continuation of surveys of routes for roads and canals. In April, 1830, on the bill, in the House of Representatives, to construct a road from Buffalo, in New York, through Washington to New Orleans, great objection was made to the constitutionality of the power, and the House, by a vote of 105 to 88, rejected the bill, though probably the vote was governed, in part, by other considerations; for other bills, for aiding the making roads and canals, passed into laws during that session, and their avowed purpose was the great object of internal improvement. President Jackson, in 1830, declared himself to be of opinion, that Congress did not possess the constitutional power to construct roads and canals, or appropriate money for improvements of a local character; but he admitted that the right to make appropriations for such as were of a national character had been so generally acted upon, and so long acquiesced in, as to justify the exercise of it on the ground of continued usage. He objected, upon that distinction, to the bills authorizing subscriptions to the Maysville and Rockville Road Companies, as not being within the legitimate powers of Congress. The great question concerning the power of Congress to appropriate moneys for internal improvements within the states remained still as unsettled as ever, as late as the 3d of August, 1846; for on that day President Polk objected to and defeated the bill, which had passed both houses of Congress, for appropriating $1,378,450, for separate and distinct objects of internal improvement, in certain harbors, rivers, and lakes in various parts of the United States. The President denied the existence of a constitutional power in the federal government to construct works of internal improvement within the states, or to appropriate moneys from the treasury for that purpose. He considered the absence of such a power to be a principle of construction well settled, and that the inexpediency of the power was demonstrated in the exercise of it in that case; for the bill contained appropriations of moneys for more than twenty objects of internal improvement, called, in the bill, harbors, at places which have never been declared by law either ports of entry or delivery, and at which there has never been an arrival of foreign merchandise, and from which there has never been a vessel cleared for a foreign country. The constitutional scruples of the President went, in their application in this case, to interdict the necessary, and, in my opinion, the clearly constitutional jurisdiction and discretion of Congress, "to regulate commerce with foreign nations and among the several states," as to the improvement of the navigation of the many rivers, harbors, and great lakes within the United States, and on which waters is carried an immensely valuable commerce. This strict construction of the Constitution is in striking contrast to that large construction which has been given to the Constitution, in authorizing Congress to admit new states into the Union, and to which we have already alluded in a preceding note. See ante, 259. The rightful power of the general government to direct the improvement of the navigation of the internal waters of the United States for the commercial use of the Union, and to apply the revenues thereof for that purpose, appears to me to result from a sound construction of the Constitution. It is one of its great and essential objects. The Mississippi, for instance, with its millions of inhabitants, and great cities and towns on its banks, calls loudly for means to clear and remove obstructions to a safe navigation. The states cannot do it, and the improvement must come, if it comes at all, from the general government. The whole Union is deeply interested in the

safe and easy navigation of the great rivers and lakes within the limits of the United States, and bordering on two or more states. It makes no difference in reason or policy in the necessary application of the power, whether the rivers or lakes are divided by two or more states. It is sufficient for the power, if the improvement to be called for be general in its object, and for national purposes, and for the regulation, safety, and facility of commerce. All navigable waters, not land-locked within a state, whether they be rivers, harbors, gulfs, bays, lakes, or coasts of the ocean, are, and were intended to be, and ought to be, subservient to the power to regulate commerce with foreign nations, and among the several states. They fall within the congressional power, and are subject to the regulation of the United States, and they are entitled to the patronage, protection, and pecuniary support of the general government. This power is justly to be applied to the erection of light-houses, buoys, piers, breakwaters, harbors, and for clearing obstructions, and deepening and widening navigable waters. The United States have the exclusive command of the revenues derived from commerce and navigation, and the reason, justice, and policy of holding this power to exist in Congress, and that it should be liberally and largely applied, strike me with obvious and decisive force. The grant of commercial power to Congress is general, and must v[r]est essentially in its application in the discretion of Congress, and in its judgment as to the importance of this exercise of the power to the promotion and security of commerce among the states and with foreign nations. There does not appear to be any just ground for construing the power strictly and within straight and narrow lines. A grant of general power for great national objects ought to be liberally construed to be made adequate to all future exigencies within the scope of this power. There does not appear to be any color in the Constitution for prescribing arbitrary lines and limits to the power to regulate commerce.

Mr. Justice Story, in his Commentaries on the Constitution of the United States, ii. pp. 429-440, and again, pp. 519-538, has stated, at large, the arguments for and against the proposition, that Congress have a constitutional authority to lay taxes and to apply the power to regulate commerce, as a means directly to encourage and protect domestic manufactures; and, without giving any opinion of his own on that contested doctrine, he has left the reader to draw his own conclusions. I should think, however, from a view of the arguments as stated, that every mind which has taken no part in the discussions, and felt no prejudice or territorial or party bias on either side of the question, would deem the arguments in favor of the congressional power vastly superior. The learned commentator I should apprehend to be decidedly of that way of thinking. He says, "that the commercial system of the United States has been employed sometimes for the purpose of revenue; sometimes for the purpose of prohibition; sometimes for the purpose of retaliation and commercial reciprocity; sometimes to lay embargoes; sometimes to encourage domestic navigation, and the shipping and mercantile interest, by bounties, by discriminating duties, and by special preferences and privileges; and sometimes to regulate intercourse, with a view to mere political objects, such as to repel aggressions, increase the pressure of war, or vindicate the rights of neutral sovereignty. In all these cases, the right and duty have been conceded to the national government by the unequivocal voice of the people." Mr. Hamilton, in his argument in the cabinet in February, 1791, on the national bank, considered the regulation of policies of insurance, of salvage upon goods found at sea, the regulation of pilots and of foreign bills of exchange, as coming within the power to regulate commerce. Ib. 519, note. [Post, 439, n. 1.]