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State * courts in the cases already pointed out, the due [* 14]
Besides conferring specified powers upon the national government, the Constitution contains also certain restrictions upon the action of the States, a portion of them designed to prevent encroachments upon the national authority, and another portion to protect individual rights against possible abuse of State power. Of the first class are the following: No State shall enter into any treaty, alliance, or confederation, grant letters of marque or reprisal, coin money, emit bills of credit, or make any thing but gold and silver coin a tender in payment of debts. No State shall, without the consent of Congress, lay any imposts or duties upon imports or exports, except what may be absolutely where they apply." Sec. 34. In Suydam v. Williamson, 24 How. 427, the Supreme Court of the United States overruled several of its former decisions, in order to make its rulings conform to a more recent decision in the State of New York, — the question involved being one of real estate law in that State. And in Leffingwell v. Warren, 2 Black, 599, the court reiterate the doctrine of former cases, that if the highest tribunal of a State adopt new views on a question of State statutory law, reversing its former decisions, the Supreme Court of the United States will follow the latest settled adjudications. See also Green v. Neal's Lessee, 6 Pet. 291. But questions of private right depending solely upon the common law, and not being questions of title to property, will be determined by the Federal tribunals on their view of the common law alone : Chicago v. Robbins, 2 Black, 418. And questions of general commercial law are not regarded as questions of local law upon which the decisions of the State courts should be of binding force. Robinson v. Commonwealth Insurance Co., 3 Sum. 220; Swift v. Tyson, 16 Pet. 1. See further as to exceptions to the general rule, Austen v. Miller, 5 McLean, 153; Williamson v. Berry, 8 How. 495; Bragg v. Meyer, 1 McAll. 408.
* To constitute a bill of credit within the meaning of the Constitution, it must be issued by a State, involve the faith of the State, and be designed to circulate as money on the credit of the State in the ordinary uses of business. Briscoe v. Bank of Kentucky, 11 Pet. 257 ; Woodruff v. Trapnall, 10 How. 209. The facts that a State owns the entire capital stock of a bank, elects the directors, makes its bills receivable for the public dues, and pledges its faith for their redemption, do not make the bills of such bank “bills of credit” in the constitutional sense. Darrington v. State Bank of Alabama, 13 How. 12. See further, Craig v. Missouri, 4 Pet. 410; Byrne v. Missouri, 8 Pet. 40; Moreau v. Detchamendy, 41 Mo. 431.
necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports or exports, shall be for the use of the treasury of the United States, and all such laws shall be subject to the revision and control of Congress. No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. Of the second class are the following: No State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
Other provisions have for their object to prevent discriminations by the several States against the citizens and public authority and proceedings of other States. Of this class are the provisions that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; 3 that fugitives
Const. of U. S. art. 1, § 10. 2 Const. of U. S. 14th Amendment.
3 Const. of U. S. art. 4. · What are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental ; which belong of right to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What those fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads : protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise, to claim the benefit of the writ of habeas corpus; to institute and maintain actions of every kind in the courts of the State; to take, hold, and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the citizens of the other State, may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be
from justice shall * be delivered up, and that full faith (* 16]
added the elective franchise as regulated and established by the laws or constitution of the State in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each State in every other State, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old Articles of Confederation) the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union.'" Washington, J., in Corfield v. Coryell, 4 Wash. C. C. 380. The Supreme Court will not describe and define those privileges and immunities, in a general classification; preferring to decide each case as it may come up. Conner v. Elliott, 18 How. 591. For discussions upon this subject, see Murray v. McCarty, 2 Munf. 393; Lemmon v. People, 26 Barb. 270, and 20 N. Y. 562; Campbell v. Morris, 3 Har. & M'H. 554; Amy v. Smith, 1 Lit. 326 ; Crandall r. State, 10 Conn. 340; Butler v. Farnsworth, 4 Wash. C. C. 101 ; Commonwealth v. Towles, 5 Leigh, 743; Haney v. Marshall, 9 Md. 194; Slaughter v. Commonwealth, 13 Grat. 767 ; State v. Medbury, 3 R. I. 138; People v.
Imlay, 20 Barb. 68; People v. Coleman, 4 Cal. 46; People v. Thurber, 13 lll. 544; Phænix Insurance Co. v. Commonwealth, 5 Bush, 68; Ducat v. Chicago, 48 Ill. 172; Fire Department v. Noble, 3 E. D. Smith, 441; Same v. Wright, ib. 453; Same v. Holfenstein, 16 Wis. 136. The constitutional provision does not apply to corporations. Warren Manuf. Co. v. Ætna Ins. Co. 2 Paine, 501. A discrimination between local freight on railroads and that which is extra-territorial, is not personal, and therefore not forbidden by this clause of the Constitution. Shipper v. Pennsylvania R.R. Co. 47 Penn. St. 338. The requirement of a license fee of persons not permanent residents of Baltimore, who offer or expose for sale goods, &c., within that city, does not violate this provision. Ward v. State, 31 Md. 279. And see further, Paul v. Virginia, 8 Wal. 168.
' For decisions under this clause, see Ex parte Joseph Smith, 3 McLean, 133; Dow's Case, 18 Penn. St. 39; Matter of Clark, 9 Wend. 221; Johnson v. Riley, 13 Geo. 97; Matter of Fetter, 3 Zab. 311. The three cases last cited decide that the alleged offence need not be an offence at the common law; it is sufficient that it be a crime against the State from which the accused has fled. But it must have been actually committed within the State reclaiming the alleged offender, and he must have been an actual fugitive therefrom. Ex parte Smith, supra. The whole subject was considered in Commonwealth of Kentucky v. Dennison, 24 How. 66. One Lago was indicted in Kentucky for enticing and assisting a slave to escape from his master, and a requisition was made upon the governor of Ohio for his surrender to the Kentucky authorities as a fugitive from justice. The governor of Ohio refused to surrender him, on the ground that the act with which he was charged was not an offence known to the laws of Ohio, and not an act affecting the public safety, or regarded as malum in se by the general judgment and conscience of civilized nations. Application was then made to the Supreme Court of the United States for a mandamus to compel the governor of Ohio to perform this duty. The application was denied, on the ground that, although the governor erred in his refusal, no power was delegated to the general
(* 17] and credit shall be given in * each State to the public acts,
records, and judicial proceedings of every other State. The last provisions that we shall here notice are that the United States shall guarantee to every State a republican form of government, and that no State shall grant any title of nobility. The
purpose of these is to protect a Union founded on republi(* 18] can principles, and composed entirely of * republican mem
bers against aristocratic and monarchial innovations.4
government, either through the judicial or any other department, to employ any coercive means to compel him. See Matter of Voorbies, 32 N. J. 141.
i Const. of U. S. art. 4. This clause of the Constitution has been the subject of a good deal of discussion in the courts. It is well settled that if the record of a judgment shows that it was rendered without service of process or appearance of the defendant, or if that fact can be shown without contradicting the recitals of the record, it will be treated as void in any other State, notwithstanding this constitutional provision. Benton v. Burgot, 10 S. & R. 242; Thurber v. Blackbourne, 1 N. H. 242; Hall v. Williams, 6 Pick. 232; Aldrich v. Kinney, 4 Conn. 380; Bradshaw v. Heath, 13 Wend. 407; Robinson v. Ward's Executors, 8 Johns. 86; Fenton v. Garlick, ib. 194; Kilbourn v. Woodworth, 5 Johns. 37; Pawling v. Bird's Executors, 13 Johns. 192 ; Starbuck v. Murray, 5 Wend. 161; Noyes v. Butler, 6 Barb. 613; Woodward v. Tremere, 6 Pick. 354; Lincoln v. Tower, 2 McLean, 473; Westervelt v. Lewis, ib. 511; Bimelar v. Dawson, 4 Scam. 536 ; Gleason v. Dodd, 4 Met. 333; Warren v. M'Carthy, 25 Ill. 95; Rape v. Heaton, 9 Wis. 328; Wood v. Watkinson, 17 Conn. 500; Norwood v. Cobb, 24 Texas, 551; McLaurine v. Monroe, 30 Mo. 462; Commonwealth v. Blood, 97 Mass. 538. But whether it would be competent to show, in opposition to the recitals of the record, that a judgment of another State was rendered without jurisdiction having been obtained of the person of the defendant, is not settled by the authorities. Many cases hold not. Field v. Gibbs, 1 Pet. C. C. 156; Green v. Sarmiento, ib. 76; Lincoln v. Tower, 2 McLean, 473; Westervelt v. Lewis, ib. 511; Pearce v. Olney, 20 Conn. 544; Hoxie v. Wright, 2 Vt. 263; Newcomb v. Peck, 17 Vt. 302 ; Willcox v. Kassick, 2 Mich. 165; Bimelar v. Dawson, 4 Scam. 536; Welch v. Sykes, 3 Gil. 197 ; Roberts v. Caldwell, 5 Dana, 512. Other cases admit such evidence. Starbuck v. Murray, 5 Wend. 148 ; Holbrook v. Murray, ib. 161; Shumway v. Stillman, 6 Wend. 417 ; Borden v. Fitch, 15 Johns. 121; Hall v. Williams, 6 Pick, 232; Aldrich v. Kinney, 4 Conn. 380; Bradshaw v. IIeath, 13 Wend. 407; Gleason v. Dodd, 4 Met. 333; Norwood v. Cobb, 24 Texas, 551. The same defences may be made to a judgment when sued in another State which could have been made to it in the State where rendered. Hampton v. McConnel, 3 Wheat. 234; Mills v. Duryea, 7 Cranch, 484; Steele v. Smith, 7 W. & S. 447; Bank of the State v. Dalton, 9 How. 528. But no others : Green v. Van Buskirk, 7 Wal. 139; Christmas v. Russell, 5 Wal. 290; Cheever v. Wilson, 9 Wal. 108. 2 Const. of U. $. art. 4, § 4.
3 Const, of U. S. art. 1, § 10. * Federalist, Nos. 43 and 44. It does not fall within our province to discuss
So far as a particular consideration of the foregoing provisions falls within the plan of our present work, it will be more convenient to treat of them in another place, especially as such of them as have for their object the protection of person or property are usually repeated in the bills of rights contained in the State constitutions, and will require some notice at our hands as a part of State constitutional law.
Where powers are conferred upon the general government, the exercise of the same powers by the States is impliedly prohibited, wherever the intent of the grant to the national government would be defeated by such exercise. On this ground it is held that the States cannot tax the agencies or loans of the general government; since the power to tax, if possessed by the States in regard to these objects, might be so exercised as altogether to destroy such agencies and impair or even destroy the national credit. And where by the national constitution jurisdiction is given to the national courts with a view to the more efficient and harmonious working of the system organized under it, it is competent for Congress in its wisdom to make that jurisdiction exclusive of the State courts. On some other subjects State laws may be valid until the power of Congress is exercised, when they become superseded, either wholly, or so far as they are found inconsistent. The States may legislate on the subject of bankruptcy if there be no law of Congress which will conflict. State laws for organizing and disciplining the militia are valid except as they may conflict with national legislation ;4 and the States may constitutionally provide for punishing the counterfeiting of coin 6 and the passing of counterfeit money, since
these provisions. They have been much discussed in Congress within a few years, but in a party, rather than a judicial spirit.
· McCulloch v. Maryland, 4 Wheat. 316, 427 ; Weston v. Charleston, 2 Pet. 449. See cases collected, post, p. 482.
? Martin v. Hunter's Lessee, 1 Wheat. 334; The Moses Taylor v. Hammons, 4 Wal. 411; The Ad Hine v. Trevor, ib. 555. And see note to these cases in the Western Jurist, Vol. I., p. 241.
• Sturgis v. Crowninshield, 4 Wheat. 122 ; McMillan v. McNeill, ib. 209. And see post, pp. 293–94.
• Houston v. Moore, 5 Wheat. 1, 51.
* Fox v. Ohio, 5 How. 410; United States v. Marigold, 9 How. 560. And see Hendrick's Case, 5 Leigh, 707 ; Jett v. Commonwealth, 18 Grat. 933; Moore 0. People, 14 How. 13.