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provisions, the most important of which are collected in the marginal notes.

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 republican principles, and composed entirely of

187; Norwood v. Cobb, 24 Texas, 551; v. Cook, 8 Cal. 449; Norwood v. Rape v. Heaton, 9 Wis. 328; Mc- Cobb, 24 Texas, 551; Russell v. Cauley r. Hargroves, 48 Geo. 50; s. C. Perry, 14 N. H. 155; Rape v. Heaton, 15 Am. Rep. 660; People v. Dawell, 9 Wis. 328; Carleton v. Bickford, 13 25 Mich. 247 ; s. c. 12 Am. Rep. 260; Gray, 596; Mackay v. Gordon, 34 Hood v. State, 5 Cent. Law Journ. N. J. 286; Thompson v. Whitman, 35; Lincoln v. Tower, 2 McLean, 473; 18 Wall. 457. In People v. Dawell,

v Westerwelt v. Lewis, 2 McLean, 511; 25 Mich. 247, on an indictment for Railroad Co.o. Trimble, 10 Wall. 377; bigamy, in which the defendant relied Board of Public Works v. Columbia on a foreign divorce from his first College, 17 Wall. 521. But whether wife, it was held competent to show, it would be competent to show, in in opposition to the recitals of the opposition to the recitals of the record, record, that the parties never resided that a judgment of another State in the foreign State, and that the was rendered without jurisdiction proceedings were a fraud. Recent having been obtained of the person decisions of the Supreme Court of of the defendant, the authorities are Indiana, and of the Supreme Court not agreed. Many cases hold not. of Commission of Ohio, are to the Field v. Gibbs, 1 Pet. C. C. 156 ; same effect. See Hood v. State, reGreen v. Sarmiento, 1 Pet. C. C. 76; ported in Central Law Journal, July Lincoln 0. Tower, 2 McLean, 473; 13, 1877, and Pennywit v. Foote, 27 Westerwelt v. Lewis, 2 McLean, Ohio, N. S. 600. Mr. Freeman dis511; Roberts v. Caldwell, 5 Dana, cusses this general subject in his 512; Hensley v. Force, 7 Eng. 756; treatise on Judgments, c. 26. The Pearce 0.

Olney, 20 Conn. 541; same defences may be made to a Hoxie v. Wright, 2 Vt 263; New- judgment when sued in another State comb o. Peck, 17 Vt. 302; Willcox v. which could have been made to it in Kassick, 2 Mich. 165; Bimeler v. Daw- the State where rendered: Hampton son, 4 Scam. 536; Welch v. Sykes, v. McConnel, 3 Wheat. 231; Mills r. 3 Gil. 197; Wetherell v. Stillman, Duryea, 7 Cranch, 484; Steele v. 65 Penn. St. 105. Other cases admit Smith, 7 W. & S. 447; Bank of the such evidence. Starbuck v. Murray, State o. Dalton, 9 How. 528; but no 5 Wend. 148; Holbrook v. Murray, 5 others: Green v. Van Buskirk, 7 Wall. Wend. 161; Shumway v. Stillman, 6 139; Christmas v. Russell, 5 Wall. Wend. 447; Borden v. Fitch, 15 290; Cheever v. Wilson, 9 Wall. 108; Johns. 121; Hall v. Williams, 6 Pick. People v. Dawell, 25 Mich. 247; 8. C. 232; Aldrich v. Kinney, 4 Conn. 380; 12 Am. Rep. 260; Dodge v. Coffin, Bradshaw o. Heath, 13 Wend. 407; 15 Kan. 277. Hoffman v. Hoffman, 46 N. Y. 30; 1 Const. of U. S. art. 4, § 4. Gleason v. Dodd, 4 Met. 333; Kane 2 Const. of U. S. art. 1, § 10.

(* 18] * republican members against aristocratic and monarchical

innovations.1 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 all of them which 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.3 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 national bankrupt law. State laws for organizing and disciplining the militia are valid, except as they

* 482.

1 Federalist, Nos. 43 and 44. It p.

State laws cannot regulate does not fall within our province to the sale of patents, the whole subject discuss these provisions. They have belonging exclusively to Congress. been much discussed in Congress Ex parte Robinson, 2 Biss. 309. within a few years, but in a party, 3 Martin Hunter's Lessee, 1 rather than a judicial, spirit. See Wheat. 334; The Moses Taylor v. Story on Const. (4th ed.) c. 41, and Hammons, 4 Wall. 411; The Ad Hine notes, and article in International

v. Trevor, 4 Wall. 555.

And see Review for January, 1875, on “ The note to these cases in the Western Guaranty of Order and Republican Jurist, Vol. I. p. 241. Government in the States."

Crowninshield, 4 2 McCulloch v Maryland, 4 Wheat. Wheat. 122 ; McMillan v. McNeill, 316, 427; Weston v. Charleston, 2 4 Wheat. 209.

And see post, pp. Pet. 419. See cases collected, post, * 293–294.

4 Sturgis

may contlict with national legislation ; 1 and the States may constitutionally provide for punishing the counterfeiting of coin2 and the passing of counterfeit money, since these acts are offences against the State, notwithstanding they may be offences against the nation also.

* The tenth amendment to the Constitution provides [*19] that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. And it is to be observed of this instrument, that being framed for the establishment of a national government, it is a settled rule of construction that the limitations it imposes upon the powers of government are in all cases to be understood as limitations upon the government of the Union only, except where the States are expressly mentioned.4 As illustrations, the sixth and seventh amendments to the Constitution may be mentioned. These constitute a guaranty of the right of trial by jury ; but, as they do not mention the States, they are not to be understood as restricting their powers ; and the States may, if they choose, provide for the trial of all offences against the States, as well as for the trial of civil cases in the State courts, without the intervention of a jury, or by some different jury from that known to the common law.5

With other rules for the construction of the national Constitu1 Houston v. Moore, 5 Wheat. 1, 51. Reed v. Rice, 2 J. J. Marsh. 45;

• Harlan v. People, 1 Doug. North. Mo. R. R. Co. v. Maguire, 49 (Mich.) 207.

Mo. 490; Lake Erie, &c. R. R. Co. v. • Fox v. Ohio, 5 How. 410; United Heath, 9 Ind. 558; Prescott v. State, 19 States v. Marigold, 9 How. 560. And Ohio, n. s. 184; State v. Shumpert, see Hendrick's Case, 5 Leigh, 707; 1 So. Car. N. 8. 85; Commonwealth Jett v. Commonwealth, 18 Grat. 933; v. Hitchings, 5 Gray, 482 ; Bigelow v. Moore v. People, 14 How. 13. Bigelow, 120 Mass. 320; Boyd v.

4 Barron v. Baltimore, 7 Pet. 243; Ellis, 11 Iowa, 97; Cambell v. State, Livingston's Lessee v. Moore, 7 Pet 11 Geo. 353; State v. Carro, 26 La. 551; Fox v. Ohio, 5 How. 432; Smith Ann. 377; Purvear v. Commonwealth, e. Maryland, 18 How. 71; Buona- 5 Wall. 475; Twitchell v. Commonparte r. Camden & Amboy R. R. Co., wealth, 7 Wall. 321. Baldw. 220; James v. Commonwealth, 6 Twitchell v. Commonwealth, 7 12 $. & R. 221; Barker v. People, 3 Wall. 321 ; Justices . Murray, 9 Wall. Cow. 686; Colt v. Eves, 12 Conn. 274; Edwards v. Elliott, 21 Wall 532; 243; Jane v. Commonwealth, 3 Met. Walker v. Sauvinet, 92 U. S Rep. (Ky.) 18; Lincoln v. Smith, 27 Vt. 90; Munn v. Illinois, 94 U. S. Rep. 336; Matter of Smith, 10 Wend. 113. 449; State v. Barnett, 3 Kansas, 250;


tion we shall have little occasion to deal. They have been the subject of elaborate treatises, judicial opinions, and legislative debates, which are familiar alike to the legal profession and to the public at large. So far as that instrument apportions powers to the national judiciary, it must be understood, for the most part, as simply authorizing Congress to pass the necessary legislation for the exercise of those powers by the federal courts, and not as directly, of its own force, vesting them with that authority. The Constitution does not, of its own force, give to national courts jurisdiction of the several cases which it enumerates, but an act of Congress is essential, first, to create courts, and afterwards to apportion the jurisdiction among them. The exceptions are of those few cases of which the Constitution confers jurisdiction upon

the Supreme Court by name. And although the courts of the l'nited States administer the common law in many cases, they do not derive authority from the common law to take cognizance of and punish offences against the government. Offences against the nation are defined and their punishment prescribed by acts of Congress.

i Demurrer to an indictment for a under their general powers, constilibel upon the President and Congress. tute, one only, the Supreme Court, By the court: “ The only question possesses jurisdiction derived immewhich this case presents is, whether diately from the Constitution, and of the circuit courts can exercise a com- which the legislative power cannot mon-law jurisdiction in criminal cases. deprive it. All other courts created ... The general acquiescence of by the general government possess no legal men shows the prevalence of jurisdiction but what is given them opinion in favor of the negative of the by the power that created them, and proposition. The course of reasoning can be vested with none but what the which leads to this conclusion is sim- power ceded to the general governple, obvious, and admits of but little inent will authorize them to confer. illustration. The powers of the gen- It is not necessary to inquire whether eral government are made up of con- the general government, in any and cessions from the several States: what extent, possesses the power of whatever is not expressly given to conferring on its courts a jurisdiction the former, the latter expressly re- in cases similar to the present; it is

The judicial power of the enough that such jurisdiction has not United States is a constitutional part been conferred by any legislative act, of these concessions: that power is to if it does not result to those courts as be exercised by courts organized for a consequence of their creation.” the purpose, and brought into exist- United States v. Hudson, 7 Cranch, ence by an effort of the legislative 32. See United States v. Coolidge, 1 power of the Union.

Of all the Wheat. 415. “It is clear there can courts which the United States may, be no comnion law of the United


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States. The federal government is Pet. 658. See also Kendall v. United composed of twenty-four sovereign States, 12 Pet. 524; Lorman v. and independent States, each of Clarke, 2 McLean, 568; United which may have its local usages, cus- States v. Lancaster, 2 McLean, 433; toms, and common law. There is no United States v. New Bedford Bridge, principle which pervades the Union, 1 Wood. & M. 435; United States v. and has the authority of law, that is Wilson, 3 Blatch. 435; United States not embodied in the Constitution or

v. Barney, 5 Blatch. 294. As to the laws of the Union. The common law adoption of the common law by the could be made a part of our federal States, see Van Ness v. Pacard, 2 system only by legislative adoption." Pet. 144, per Story, J.; and post, Per McLean, J., Wheaton v. Peters, 8 p. * 23, and cases cited in notes.

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