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SOME 
 
 OPINIONS AND PAPERS 
 
 OF 
 
 STEPHEN J. FIELD, 
 
 ASSOCIATE JUSTICE AND CHIEF JUSTICE OF THE SUPREME 
 COUET OF CALIFORNIA, 
 
 UNITED STATES CIRCUIT JUSTICE FOR THE NINTH AND 
 TENTH CIRCUITS, 
 
 AND 
 
 ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE 
 UNITED STATES. 
 
 Vol. I. 
 
 U1U7ERSIT7 
 
TIM 
 
 LIBRARY 
 
 I/'/ 
 
 X 
 
 NOTE 
 
 Preceding each volume of these bound pamphlets 
 is an Index of the Opinions in that volume. At the 
 end of the Sixth Volume will be found a full Index 
 of the subjects considered in the six volumes. 
 
 TH* ~>< 
 
 UlSUVERSITY 
 

INDEX 
 
 VOL. I. 
 
 No. of 
 Pamphlet. 
 
 BARTEMEYER v. THE STATE OF IOWA. (See New 
 
 Orleans Slaughter-house Cases) 6 
 
 BECKWITH AND HENRY v. BEAN, (98 U. S. 266.) 
 Illegality of the arrest and imprisonment by provost-mar- 
 shals, during the late rebellion, of citizens not in the 
 military service in States, where the courts were open 
 and in the undisturbed exercise of their jurisdiction 3 
 
 BUTCHERS' UNION SLAUGHTER-HOUSE, Ac. CO. 
 v. THE CRESCENT CITY LIVE-STOCK, &c., CO., 
 (Ill U. S. 746.) 
 
 Inability of the legislature of a State, by contract with an 
 individual or a corporation, to restrain, dimmish, or sur- 
 render its power to enact laws for the preservation of 
 the public health or the protection of the public morals. 
 Effect of the Fourteenth Amendment in preventing the 
 creation of monopolies in any trade or business 7 
 
 CENTRAL PACIFIC RAILROAD CO. v. ALBERT 
 GALLATIN, and UNION PACIFIC RAILROAD 
 CO. v. THE UNITED STATES, (99 U. S. 700.) 
 The right of the General Government, by legislation, to 
 violate its contracts ; or to determine the extent of the 
 rights and obligations of parties to them, and thus ex- 
 ercise judicial functions in its own cases; or to assume 
 control of State corporations within the State, consid- 
 ered and denied 21 
 
No. of 
 Pamphlet. 
 
 CHARGE TO THE GRAND JURY OF THE U. S. 
 CIRCUIT COURT FOR THE DISTRICT OF CAL- 
 IFORNIA, (2 Sawyer's C. C. Reps. Appendix, 667.) 
 Powers and duties of Grand Juries in the Courts of the 
 United States, stated 17 
 
 CHICAGO ELEVATOR CASE, and GRANGER CASES, 
 
 (94 U. S. 113, and 155.) 
 
 The power of the State to prescribe the compensation re- 
 ceivable for the use of private property and for services 
 in connection with it, considered 14 
 
 COLEMAN v. TENNESSEE, (97 U. S. 509.) 
 
 Exemption of officers and soldiers of the army of the 
 United States, in service during the late Civil War, 
 from the laws of the enemy's country which they in- 
 vaded, for offences committed there as such officers and 
 soldiers 11 
 
 COUNTY OF SAN MATEO v. SOUTHERN PACIFIC 
 RAILROAD CO., and COUNTY OF SANTA 
 CLARA v. SOUTHERN PACIFIC RAILROAD 
 CO., (116 U. S. 138, and 118 U. S. 394.) 
 The taxation of property of railroad companies in Cali- 
 fornia, as affected by the Fourteenth Amendment of 
 the Federal Constitution, considered 22 & 23 
 
 CUMMINGS v. THE STATE OF MISSOURI, and EX 
 
 PARTE GARLAND, (4 Wall. 277, and 333.) 
 The constitutionality of test oaths for past conduct consid- 
 ered and denied 1 
 
 DOW v. JOHNSON, (100 U. S. 158.) 
 
 The exemption of an officer of the army of the United 
 States, while serving in the enemy's country during the 
 late Civil War, from liability to a civil action in the 
 courts of that country for injuries resulting from his 
 military orders or acts, considered and maintained 12 
 
No. of 
 Pamphlet. 
 
 EUREKA CONSOLIDATED MINING CO. v. RICH- 
 MOND MINING CO., (4 Sawyer, 302.) 
 Veins and lodes of mining claims defined. The construc- 
 tion of the mining statutes of the United States of 
 1866 and 1872 25 
 
 EX PARTE CLARKE, (100 U. S. 399.) 
 The validity of the election laws of Congress considered.. 9 
 
 EX PARTE GARLAND. (See Cummings v. The State 
 
 of Missouri) 1 
 
 EX PARTE VIRGINIA. PETITION OF J. D. COLES AND 
 
 THE COMMONWEALTH OF VIRGINIA, (100 U. S. 339.) 
 The right of Congress to punish officers of a State for the 
 manner in which they discharge their duties under its 
 laws, denied ; the relations between the Federal and the 
 State governments, defined; and the doctrine that the 
 Thirteenth and Fourteenth Amendments secure to all 
 persons only civil rights, and not political rights, asserted. 8 
 
 EX PARTE WALL, (107 U. S. 265.) 
 
 Causes for which attorneys and counsellors-at-law may be 
 disbarred, stated 16 
 
 JENNISON v. KIRK, (98 U. S. 453.) 
 
 The origin and general character of the customary law of 
 miners stated and explained 24 
 
 KNOX v. LEE, and PARKER v. DAVIS, (12 Wall. 457.) 
 The constitutionality of the Legal-Tender Act considered 
 and denied 4 & 5 
 
 MILLER'S EXECUTOR v. THE UNITED STATES, 
 and TYLER v. DEFREES, (11 Wall. 268, and 331.) 
 The constitutionality of the Confiscation Act of July 17, 
 1862, considered and denied 2 
 
No. of 
 Pamphlet. 
 
 NEW ORLEANS SLAUGHTER-HOUSE CASES, and 
 BARTEMEYER v. THE STATE OF IOWA, (16 
 Wall. 36, and 18 Wall. 129.) 
 
 The Fourteenth Amendment to the Constitution consid- 
 ered. The right under that amendment to pursue any 
 lawful trade or vocation without other restraint than 
 such as equally affects all persons of the same age, sex, 
 and condition ; and the doctrine that the amendment 
 does not interfere with the police power of the State, 
 maintained 6 
 
 OSCANYAN v. ARMS COMPANY, (103 U. S. 261.) 
 Invalidity of contracts to control agents of the govern- 
 ment, asserted 19 
 
 PACIFIC RAILROAD CO. v. THE UNITED STATES. 
 
 (See United States v. Pacific Railroad Co.) 13 
 
 PARKER v. DAVIS. (See Knox v. Lee) 4&5 
 
 PENSACOLA TELEGRAPH CO. v. THE WESTERN 
 
 UNION TELEGRAPH CO., (96 U. S. 1.) 
 The power of Congress to authorize the corporations of 
 one State to do business in another State without the 
 latter's consent, considered 15 
 
 SPRING VALLEY WATERWORKS v. THE BOARD 
 OF SUPERVISORS OF SAN FRANCISCO, (110 
 U. S. 347.) 
 
 Meaning and purpose of a reservation in charters of corpo- 
 rations, or laws authorizing their formation, of a right to 
 alter or repeal them 20 
 
 TOOL COMPANY v. NORRIS, (2 Wall. 45.) 
 
 An agreement for compensation for procuring a contract 
 from the government to furnish its supplies, against 
 public policy, and uneriforcible by the courts 18 
 
 TYLER v. DEFREES. (See Miller's Executor v. The 
 
 United States) 2 
 
No. of 
 Pamphlet. 
 
 UNION PACIFIC RAILROAD CO. v. THE UNITED 
 STATES. (See Central Pacific Railroad Co. v. Albert 
 Gallatin) 21 
 
 UNITED STATES v. PACIFIC RAILROAD, and PA- 
 CIFIC RAILROAD v. UNITED STATES, (120 
 U. S. 227.) 
 
 The United States not responsible for the injury or destruc- 
 tion of private property by their military operations 
 during the late Civil War, considered and maintained.. 13 
 
 WILLIAMS v. BRUFFY, ADMINISTRATOR, (96 
 
 U. S. 176.) 
 
 The sequestration by the Confederate States of debts owing 
 to loyal citizens, and the extent in which the Confed- 
 erate government was to be regarded as a de facto gov- 
 ernment, considered 10 
 
THE UNCONSTITUTIONALLY 
 
 OP 
 
 TEST OATHS FOR PAST CONDUCT 
 
 
THE UNCONSTITUTIONALLY 
 
 OF 
 
 TEST OATHS FOR PAST CONDUCT 
 
 THE OPINIONS 
 
 SUPREME COURT OF THE UNITED STATES 
 
 CUMMINGS vs. THE STATE OF MISSOURI 
 
 AND IN 
 
 EX-PARTE GARLAND. 
 
 WJ7BESITT 
 
 NEW YORK AND ALBANY 
 BANKS & BROTHERS, LAW PUBLISHERS 
 
PRESS OF J. J. LITTLE & Co., NEW YORK. 
 
SUPEEME COURT OF THE UNITED STATES. 
 
 JOHN A. CUMMINGS, Plaintiff in Error, 
 
 vs. 
 THE STATE OF MISSOURI. 
 
 Mr. JUSTICE FIELD delivered the opinion of the court.* 
 This case comes before us on a writ of error to the Supreme 
 Court of Missouri, and involves a consideration of the test oath 
 imposed by the Constitution of that State. The plaintiff in 
 error is a priest of the Roman Catholic church, and was in- 
 dicted and convicted in one of the Circuit Courts of the State of 
 the crime of teaching and preaching as a priest and minister 
 of that religious denomination without having first taken the 
 oath, and was sentenced to pay a fine of five hundred dollars, 
 and to be committed to jail until the same was paid. On 
 appeal to the Supreme Court of the State, the judgment was 
 afnrmed. 
 
 The oath prescribed by the Constitution, divided into its 
 separable parts, embraces more than thirty distinct affirmations 
 or tests. Some of the acts, against which it is directed, con- 
 stitute offences of the highest grade, to which, upon conviction, 
 heavy penalties are attached. Some of the acts have never 
 been classed as offences in the laws of any State ; and some of 
 the acts, under many circumstances, would not even be blame- 
 worthy. It requires the affiant to deny not only that he has 
 ever "been in armed hostility to the United States, or to the 
 lawful authorities thereof," but, among other things, that he 
 has ever, "by act or word," manifested his adherence to the 
 cause of the enemies'of the United States, foreign or domestic, 
 or his desire for their triumph over the arms of the United 
 
 * Delivered at tbe December Term, 1866, and reported in 4th Wallace, 
 Sup. Ct. Reports, 316. 
 
4 TEST OATHS FOR PAST CONDUCT. 
 
 Opinion of the Court. 
 
 States, or his sympathy with those engaged in rebellion, or has 
 ever harbored or aided any person engaged in guerrilla warfare 
 against the loyal inhabitants of the United States, or has ever 
 entered or left the State for the purpose of avoiding enrollment 
 or draft in the military service of the United States ; or, to 
 escape the performance of duty in the militia of the United 
 States, has ever indicated, in any terms, his disaffection to the 
 government of the United States in its contest with the 
 rebellion. 
 
 Every person who is unable to take this oath is declared in- 
 capable of holding, in the State, " any office of honor, trust, or 
 profit under its authority, or of being an officer, councilman, 
 director, or trustee, or other manager of any corporation, 
 public or private, now existing or hereafter established by its 
 authority, or of acting as a professor or teacher in any 
 educational institution, or in any common or other school, or 
 of holding any real estate or other property in trust for the use 
 of any church, religious society, or congregation." 
 
 And every person holding, at the time the Constitution takes 
 effect, any of the offices, trusts, or positions mentioned, is re- 
 quired, within sixty days thereafter, to take the oath ; and, if 
 he fail to comply with this requirement, it is declared that his 
 office, trust, or position shall ipso facto become vacant. 
 
 No person, after the expiration of the sixty days, is per- 
 mitted, without taking the oath, " to practise as an attorney or 
 counsellor-at-law, nor after that period can any person be com- 
 petent, as a bishop, priest, deacon, minister, elder, or other 
 clergyman, of any religious persuasion, sect, or denomination, 
 to teach, or preach, or solemnize marriages." 
 
 Fine and imprisonment are prescribed as a punishment for 
 holding or exercising any of " the offices, positions, trusts, pro- 
 fessions, or functions" specified, without having taken the 
 oath ; and false swearing or affirmation in taking it is declared 
 to be perjury punishable by imprisonment in the penitentiary. 
 
 The oath thus required is, for its severity, without any prec- 
 edent that we can discover. In the first place, it is retrospect- 
 ive ; it embraces all the past from this day ; and, if taken years 
 hence, it will also cover all the intervening period. In its retro- 
 
THE CUMMINGS AND GARLAND CASES. 5 
 
 Opinion of the Court. 
 
 spective feature we believe it is peculiar to this country. In 
 England and France there have been test oaths, but they were 
 always limited to an affirmation of present belief, or present 
 disposition towards the government, and were never exacted 
 with reference to particular instances of past misconduct. In 
 the second place, the oath is directed not merely against overt 
 and visible acts of hostility to the government, but is intended 
 to reach words, desires, and sympathies, also. And, in the 
 third place, it allows no distinction between acts springing 
 from malignant enmity and acts which may have been prompted 
 by charity, or affection, or relationship. If one has ever ex- 
 pressed sympathy with any who were drawn into the rebellion, 
 even if the recipients of that sympathy were connected by the 
 closest ties of blood, he is as unable to subscribe to the oath 
 as the most active and the most cruel of the rebels, and is 
 equally debarred from the offices of honor or trust, and the 
 positions aod employments specified. 
 
 But, as it was observed by the learned counsel who ap- 
 peared on behalf of the State of Missouri, this court cannot 
 decide the case upon the justice or hardship of these pro- 
 visions. Its duty is to determine whether they are in conflict 
 with the Constitution of the United States. On behalf of 
 Missouri, it is urged that they only prescribe a qualification 
 for holding certain offices, and practising certain callings, and 
 that it is, therefore, within the power of the State to adopt 
 them. On the other hand, it is contended that they are in 
 conflict with that clause of the Constitution which forbids any 
 State to pass a bill of attainder or an ex post facto law. 
 
 We admit the propositions of the counsel of Missouri that 
 the States which existed previous to the adoption of the Fed- 
 eral Constitution possessed originally all the attributes of 
 sovereignty ; that they still retain those attributes, except as 
 they have been surrendered by the formation of the Constitu- 
 tion, and the amendments thereto ; that the new States, upon 
 their admission into the Union, became invested with equal 
 rights, and were thereafter subject only to similar restrictions, 
 and that among the rights reserved to the States is the right 
 of each State to determine the qualifications for office, and the 
 
6 TEST OATHS FOR PAST CONDUCT. 
 
 Opinion of the Court. 
 
 conditions upon which its citizens may exercise their various 
 callings and pursuits within its jurisdiction. 
 
 These are general propositions and involve principles of 
 the highest moment. But it by no means follows that under 
 the form of creating a qualification or attaching a condition, 
 the States can in effect inflict a punishment for a past act 
 which was not punishable at the time it was committed. The 
 question is not as to the existence of the power of the State 
 over matters of internal police, but whether that power has 
 been made in the present case an instrument for the infliction 
 of punishment against the inhibition of the Constitution. 
 
 Qualifications relate to the fitness or capacity of the party 
 for a particular pursuit or profession. Webster defines the 
 term to mean " any natural endowment or any acquirement 
 which fits a person for a place, office, or employment, or en- 
 ables him to sustain any character with success." It is evident 
 from the nature of the pursuits and professions of the parties 
 placed under disabilities by the Constitution of Missouri, that 
 many of the acts, from the taint of which they must purge 
 themselves, have no possible relation to their fitness for those 
 pursuits and professions. There can be no connection be- 
 tween the fact that Mr. Cummings entered or left the State of 
 Missouri to avoid enrollment or draft in the military service 
 of the United States and his fitness to teach the doctrines or 
 administer the sacraments of his church ; nor can a fact of 
 this kind, or the expression of words of sympathy with some 
 of the persons drawn into the rebellion, constitute any evidence 
 of the unfitness of the attorney or counsellor to practise his 
 profession, or of the professor to teach the ordinary branches 
 of education, or of the want of business knowledge or business 
 capacity in the manager of a corporation, or in any director or 
 trustee. It is manifest upon the simple statement of many 
 of the acts and of the professions and pursuits, that there is no 
 such relation between them as to render a denial of the com- 
 mission of the acts at all appropriate as a condition of allow- 
 ing the exercise of the professions and pursuits. The oath 
 could not, therefore, have been required as a means of ascer- 
 taining whether parties were qualified or not for their respec- 
 
THE CUMMINGS AND GARLAND CASES. 7 
 
 Opinion of the Court. 
 
 tive callings or the trusts with which they were charged. It 
 was required in order to reach the person, not the calling. It 
 was exacted, not from any notion that the several acts desig- 
 nated indicated unfitness for the callings, but because it was 
 thought that the several acts deserved punishment, and that 
 for many of them there was no way to inflict punishment ex- 
 cept by depriving the parties who had committed them of 
 some of the rights and privileges of the citizen. 
 
 The disabilities created by the Constitution of Missouri must 
 be regarded as penalties ; they constitute punishment. We 
 do not agree with the counsel of Missouri that " to punish one 
 is to deprive him of life, liberty, or property, and that to take 
 from him anything less than these is no punishment at all." 
 The learned counsel does not use these terms, life, liberty, and 
 property, as comprehending every right known to the law. He 
 does not include under liberty freedom from outrage on the 
 feelings as well as restraints on the person. He does not in- 
 clude under property those estates which one may acquire in 
 professions, though they are often the source of the highest 
 emoluments and honors. The deprivation of any rights, civil 
 or political, previously enjoyed, may be punishment, the cir- 
 cumstances attending and the causes of the deprivation 
 determining this fact. Disqualification from office may be 
 punishment, as in cases of conviction upon impeachment. 
 Disqualification from the pursuits of a lawful avocation, or 
 from positions of trust, or from the privilege of appearing in 
 the courts, or acting as an executor, administrator, or guardian, 
 may also and often has been, imposed as punishment. By 
 statute 9 and 10 William III., chap. 32, if any person educated 
 in or having made a profession of the Christian religion, did, 
 " by writing, printing, teaching, or advised speaking," deny the 
 truth of the religion, or the divine authority of the Scriptures, 
 he was for the first offence rendered incapable to hold any 
 office or place of trust ; and for the second he was rendered 
 incapable of bringing any action, being guardian, executor, 
 legatee, or purchaser of lands, besides being subjected to three 
 years imprisonment without bail.* 
 
 * 4 Blackstone, 44. 
 
TEST OATHS FOR PAST CONDUCT. 
 
 Opinion of the Court. 
 
 By statute 1 George I., chap. 13, contempts against the king's 
 title, arising from refusing or neglecting to take certain pre- 
 scribed oaths, and yet acting in an office or place of trust for 
 which they were required, were punished by incapacity to hold 
 any public office ; to prosecute any suit ; to be guardian or ex- 
 ecutor ; to take any legacy or deed of gift ; and to vote at any 
 election for members of Parliament ; and the offender was also 
 subject to a forfeiture of five hundred pounds to any one who 
 would sue for the same." * 
 
 " Some punishments," says Blackstone, " consist in exile or 
 banishment by abjuration of the realm or transportation ; 
 others in loss of liberty by perpetual or temporary imprison- 
 ment. Some extend to confiscation by forfeiture of lands or 
 movables, or both, or of the profits of lands for life ; others 
 induce a disability of holding offices or employments, being 
 heirs, executors, and the like.f 
 
 In France deprivation or suspension of civil rights, or of 
 some of them, and among these of the right of voting, of eligi- 
 bility to office, of taking part in family councils, of being 
 guardian or trustee, of bearing arms, and of teaching or being 
 employed in a school or seminary of learning, are punishments 
 prescribed by her code. 
 
 The theory upon which our political institutions rest is, that 
 all men have certain inalienable rights ; that among these are 
 ilife, liberty, and the pursuit of happiness ; and that in the 
 pursuit of happiness all avocations, all honors, all positions are 
 alike open to every one, and that in the protection of these 
 rights all are equal before the law. Any deprivation or sus- 
 pension, of any of these rights for past conduct is punishment, 
 and can be in no otherwise defined. 
 
 Punishment not being, therefore, restricted, as contended by 
 .counsel, to the deprivation of life, liberty, or property, but also 
 embracing deprivation or suspension of political or civil rights, 
 and the disabilities prescribed by the provisions of the Mis- 
 souri Constitution being in effect punishment, we proceed to 
 consider whether there is any inhibition in the Constitution of 
 the United States against their enforcement. 
 
 * 4 Blackstone, 124. f 4 Vol. 377. 
 
THE CUMMINGS AND GARLAND CASES. 9 
 
 Opinion of the Court. 
 
 The counsel for Missouri closed his argument in this case by 
 presenting a striking picture of the struggle for ascendency in 
 that State during the recent rebellion, between the friends and 
 the enemies of the Union, and of the fierce passions which 
 that struggle aroused. It was in the midst of the struggle that 
 the present Constitution was framed, although it was not 
 adopted by the people until the war had closed. It would 
 have been strange, therefore, had it not exhibited in its pro- 
 visions some traces of the excitement amidst which the con- 
 vention held its deliberations. 
 
 It was against the excited action of the States under such 
 influences as these that the framers of the federal Constitution 
 intended to guard. In Fletcher v. Peck* Mr. Chief Justice Mar- 
 shall, speaking of such action, uses this language : " Whatever 
 respect might have been felt for the State sovereignties, it is 
 not to be disguised that the framers of the Constitution viewed 
 with some apprehension the violent acts which might grow out 
 of the feelings of the moment ; and that the people of the 
 United States, in adopting that instrument, have manifested a 
 determination to shield themselves and their property from 
 the effects of those sudden and strong passions to which men 
 are exposed. The restrictions on the legislative power of the 
 States are obviously founded in this sentiment ; and the 
 Constitution of the United States contains what may be 
 deemed a bill of rights for the people of each State." 
 
 " ' No State shall pass any bill of attainder, ex post facto law, 
 or law impairing the obligation of contracts.' " 
 
 A bill of attainder is a legislative act which inflicts punish- 
 ment without a judicial trial. If the punishment be less than 
 death the act is termed a bill of pains and penalties. Within 
 the meaning of the Constitution bills of attainder include bills 
 of pains and penalties. In these cases the legislative body, in 
 addition to its legitimate functions, exercises the powers and 
 office of a judge ; it assumes, in the language of the text-books, 
 judicial magistracy ; it pronounces upon the guilt of the party, 
 without any of the forms or safeguards of trial ; it determines 
 the sufficiency of the proofs produced, whether conformable 
 
 * 6 Cranch, 137. 
 
10 TEST OATHS FOR PAST CONDUCT. 
 
 Opinion of the Court. 
 
 to the rules of evidence or otherwise ; and it fixes the degree 
 of punishment in accordance with its own notions of the enor- 
 mity of the offence. 
 
 " Bills of this sort," says Mr. Justice Story, " have been 
 most usually passed in England in times of rebellion or gross 
 subserviency to the crown, or of violent political excitements ; 
 periods, in which ah 1 nations are most liable (as well the free 
 as the enslaved) to forget their duties, and to trample upon the 
 rights and liberties of others."* 
 
 These bills are generally directed against individuals by 
 name, but they may be directed against a whole class. The 
 bill against the Earl of Kildare and others, passed in the reign 
 of Henry the VIIIth,f enacted that " all such persons which 
 be or heretofore have been comforters, abettors, partakers, 
 confederates, or adherents unto the said," the late earl, and 
 certain other parties, who were named, " in his or their false 
 or traitorous acts and purposes, shall in likewise stand, and 
 be attainted, adjudged, and convicted of high treason ; " and 
 that "the same attainder, judgment, and conviction against 
 the said comforters, abettors, partakers, confederates, and ad- 
 herents shall be as strong and effectual in the law against 
 them, and every of them, as though they and every of them 
 had been specially, singularly, and particularly named by their 
 proper names and surnames in the said act." 
 
 These bills may inflict punishment absolutely, or may inflict 
 it conditionally. 
 
 The bill against the Earl of Clarendon, passed in the reign 
 of Charles the Second, enacted that the earl should suffer per- 
 petual exile, and be forever banished from the realm; and 
 that if he returned, or was found in England, or in any other 
 of the king's domains, after the first of February, 1667, he 
 should suffer the pains and penalties of treason ; with the pro- 
 viso, however, that if he surrendered himself before the said 
 first day of February for trial, the penalties and disabilities 
 declared should be void and of no effect.^ 
 
 * Commentaries on the Constitution, 1344. 
 
 f 28 Henry VIII., chap. 18, 3 Stats, of the Realm, 694. 
 
 \ Printed in 6 Howell's State Trials, p. 391. 
 
THE CUMMINGS AND GAELAND CASES. 11 
 
 Opinion of the Court. 
 
 " A British act of Parliament," to cite the language of the 
 Supreme Court of Kentucky, " might declare, that if certain 
 individuals, or a class of individuals, failed to do a given act 
 by a named day, they should be deemed to be, and treated as 
 convicted felons or traitors. Such an act comes precisely 
 within the definition of a bill of attainder, and the English 
 courts would enforce it without indictment or trial by jury.*'* 
 
 If the clauses of the second article of the Constitution of 
 Missouri, to which we have referred, had in terms declared 
 that Mr. Cummings was guilty, or should be held guilty, of 
 having been in armed hostility to the United States, or of 
 having entered that State to avoid being enrolled or drafted 
 into the military service of the United States, and therefore 
 should be deprived of the right to preach as a priest of the 
 Catholic church, or to teach in any institution of learning, 
 there could be no question that the clauses would constitute a 
 bill of attainder within the meaning of the federal Constitu- 
 tion. If these clauses, instead of mentioning his name, had 
 declared that all priests and clergymen within the State of 
 Missouri were guilty of these acts, or should be held guilty of 
 them, and hence be subjected to the like deprivation, the 
 clauses would be equally open to objection. And further, if 
 these clauses had declared that all such priests and clergy- 
 men should be so held guilty, and be thus deprived, provided 
 they did not, by a day designated, do certain specified acts, 
 they would be no less within the inhibition of the federal Con- 
 stitution. 
 
 In all these cases there would be the legislative enactment 
 creating the deprivation without any of the ordinary forms 
 and guards provided for the security of the citizen in the ad- 
 ministration of justice by the established tribunals. 
 
 The results which would follow from clauses of the character 
 mentioned do follow from the clauses actually adopted. The 
 difference between the last case supposed and the case actually 
 presented is one of form only, and not of substance. The ex- 
 isting clauses presume the guilt of the priests and clergymen, 
 and adjudge the deprivation of their right to preach or teach 
 * Oaines v. Buford, 1 Dana, 510. 
 
12 TEST OATHS FOR PAST CONDUCT. 
 
 Opinion of the Court. 
 
 unless the presumption be first removed by their expurgatory 
 oath ; in other words, they assume the guilt and adjudge the 
 punishment conditionally. The clauses supposed differ only 
 in that the}' declare the guilt instead of assuming it. The dep- 
 rivation is effected with equal certainty in the one case as it 
 would be in the other, but not with equal directness. The 
 purpose of the law maker in the case supposed would be 
 openly avowed ; in the case existing it is only disguised. The 
 legal result must be the same, for what cannot be done directly 
 cannot be done indirectly. The Constitution deals with sub- 
 stance, not shadows. Its inhibition was levelled at the thing, 
 not the name. It intended that the rights of the citizen 
 should be secure against deprivation for past conduct by legis- 
 lative enactment, under any form, however disguised. If the 
 inhibition can be evaded by the form of the enactment, its in- 
 sertion in the fundamental law was a vain and futile pro- 
 ceeding. 
 
 We proceed to consider the second clause of what Mr. 
 Chief Justice Marshall terms a bill of rights for the people of 
 each State ; the clause which inhibits the passage of an ex post 
 facto law. 
 
 By an ex post facto law is meant one which imposes a 
 punishment for an act which was not punishable at the time 
 it was committed ; or imposes additional punishment to that 
 then prescribed ; or changes the rules of evidence by which 
 less or different testimony is sufficient to convict than was 
 then required. 
 
 In Fletcher v. Peck, Mr. Chief Justice Marshall defined an 
 ex post facto law to be one " which renders an act punishable 
 in a manner in which it was not punishable when it was com- 
 mitted." " Such a law," said that eminent judge, " may inflict 
 penalties on the person, or may inflict pecuniary penalties 
 which swell the public treasury. The legislature is then pro- 
 hibited from passing a law by which a man's estate, or any 
 part of it, shall be seized for a crime, which was not declared 
 by some previous law to render him liable to that punish- 
 ment. Why, then, should violence be done to the natural 
 meaning of words for the purpose of leaving to the legislature 
 
THE CUMMIXGS AND GARLAND CASES. 13 
 
 Opinion of the Court. 
 
 the power of seizing for public use the estate of an individual, 
 in the form of a law annulling the title by which he holds the 
 estate? The court can perceive no sufficient grounds for 
 making this distinction. This rescinding act would have the 
 effect of an ex post facto law. It forfeits the estate of Fletcher 
 for a crime not committed by himself, but by those from whom 
 he purchased. This cannot be effected in the form of an ex 
 post facto law, or bill of attainder ; why, then, is it allowable in 
 the form of a law annulling the original grant ? " 
 
 The act to which reference is here made was one passed by 
 the State of Georgia, rescinding a previous act, under which 
 lands had been granted. The rescinding act, annulling the 
 title of the grantees, did not, in terms, define any crimes, or 
 inflict any punishment, or direct any judicial proceedings; 
 yet, inasmuch as the legislature was forbidden from passing 
 any law by which a man's estate could be seized for a crime, 
 which was not declared such by some previous law rendering 
 him liable to that punishment, the chief justice was of opinion 
 that the rescinding act had the effect of an ex post facto law, 
 and was within the constitutional prohibition. 
 
 The clauses in the Missouri Constitution, which are the sub- 
 ject of consideration, do not, in terms, define any crimes, or 
 declare that any punishment shall be inflicted, but they pro- 
 duce the same result upon the parties against whom they are 
 directed, as though the crimes were defined and the punish- 
 ment was declared. They assume that there are persons in 
 Missouri who are guilty of some of the acts designated. They 
 would have no meaning in the Constitution were not such the 
 fact. They are aimed at past acts, and not future acts. They 
 were intended especially to operate upon parties who, in some 
 form or manner, by action or words, directly or indirectly, had 
 aided or countenanced the rebellion, or sympathized with 
 parties engaged in the rebellion, or had endeavored to escape 
 the proper responsibilities and duties of a citizen in time of 
 war ; and they were intended to operate by depriving such 
 persons of the right to hold certain offices and trusts, and to 
 pur/sue their ordinary and regular avocations. This depriva- 
 tion is punishment; nor is it any less so because a way is 
 
14 TEST OATHS FOR PAST CONDUCT. 
 
 Opinion of the Court. 
 
 opened for escape from it by the expurgatory oath. The 
 framers of the Constitution of Missouri knew at the time that 
 whole classes of individuals would be unable to take the oath 
 prescribed. To them there is no escape provided ; to them 
 the deprivation was intended to be, and is, absolute and per- 
 petual. To make the enjoyment of a right dependent upon an 
 impossible condition is equivalent to an absolute denial of the 
 right under any condition, and such denial, enforced for a past 
 act, is nothing less than punishment imposed for that act. It 
 is a misapplication of terms to call it anything else. 
 
 Now, some of the acts to which the expurgatory oath is 
 directed were not offences at the time they were committed. 
 It was no offence against any law to enter or leave the State 
 of Missouri for the purpose of avoiding enrollment or draft in 
 the military service of the United States, however much the 
 evasion of such service might be the subject of moral censure. 
 Clauses which prescribe a penalty for an act of this nature are 
 within the terms of the definition of an ex post facto law ; 
 " they impose a punishment for an act not punishable at the 
 time it was committed." 
 
 Some of the acts at which the oath is directed constituted 
 high offences at the time they were committed, to which, upon 
 conviction, fine and imprisonment, or other heavy penalties, 
 were attached. The clauses which provide a further penalty 
 for these acts are also within the definition of an ex post facto 
 law ; " they impose additional punishment to that prescribed 
 when the act was committed." 
 
 And this is not all. The clauses in question subvert the 
 presumptions of innocence, and alter the rules of evidence, 
 which heretofore, under the universally recognized principles 
 of the common law, have been supposed to be fundamental and 
 unchangeable. They assume that the parties are guilty ; they 
 call upon the parties to establish their innocence ; and they 
 declare that such innocence can be shown only in one way ; by 
 an inquisition, in the form of an expurgatory oath, into the 
 consciences of the parties. 
 
 The objectionable character of these clauses will be more 
 apparent if we put them into the ordinary form of a legislative 
 
THE CUMMINGS AND GAKLAND CASES. 15 
 
 Opinion of the Court. 
 
 act. Thus, if instead of the general provisions in the Consti- 
 tution the convention had provided as follows : Be it enacted, 
 that all persons who have been in armed hostility to the 
 United States shall, upon conviction thereof, not only be 
 punished as the laws provided at the time the offences 
 charged were committed, but shall also be thereafter rendered 
 incapable of holding any of the offices, trusts, and positions, 
 and of exercising any of the pursuits mentioned in the second 
 article of the Constitution of Missouri; no one would have any 
 doubt of the nature of the enactment. It would be an ex post 
 facto law, and void ; for it would add a new punishment for an 
 old offence. So, too, if the convention had passed an enactment 
 of a similar kind with reference to those acts which did not 
 constitute offences. Thus, had it provided as follows : Be it 
 enacted, that all persons who have heretofore, at any time, 
 entered or left the State of Missouri, with intent to avoid en- 
 rollment or draft in the military service of the United States, 
 shall, upon conviction thereof, be forever rendered incapable 
 of holding any office of honor, trust, or profit in the State, or 
 of teaching in any seminary of learning, or of preaching as a 
 minister of the gospel of any denomination, or of exercising 
 any of the professions or pursuits mentioned in the second 
 article of the Constitution ; there would be no question of the 
 character of the enactment. It would be an ex post facto law, 
 because it would impose a punishment for an act not punish- 
 able at the time it was committed. 
 
 The provisions of the Constitution of Missouri accomplish 
 precisely what enactments like those supposed would have ac- 
 complished. They impose the same penalty, without the 
 formality of a judicial trial and conviction ; for the parties 
 embraced by the supposed enactments would be incapable of 
 taking the oath prescribed ; to them its requirement would be 
 an impossible condition. Now, as the State, had she attempted 
 the course supposed, would have failed, it must follow that any 
 other mode producing the same result must equally fail. The 
 provision of the federal Constitution, intended to secure the 
 liberty of the citizen, cannot be evaded by the form in which 
 the power of the State is exerted. If this were not so, if that 
 
16 TEST OATHS FOE PAST CONDUCT. 
 
 Opinion of the Court. 
 
 which cannot be accomplished by means looking directly to 
 the end, can be accomplished by indirect means, the inhibition 
 may be evaded at pleasure. No kind of oppression can be 
 named, against which the framers of the Constitution intended 
 to guard, which may not be effected. Take the case supposed 
 by counsel, that of a man tried for treason and acquitted, or 
 if convicted, pardoned ; the legislature may nevertheless enact 
 that, if the person thus acquitted or pardoned does not take 
 an oath that he never has committed the acts charged against 
 him, he shall not be permitted to hold any office of honor or 
 trust or profit, or pursue any avocation in the State. Take 
 the case before us ; the Constitution of Missouri, as we have 
 seen, excludes, on failure to take the oath prescribed by it, a 
 large class of persons within her borders from numerous posi- 
 tions and pursuits; it would have been equally within 
 the power of the State to have extended the exclusion so as 
 to deprive the parties who are unable to take the oath, from 
 any avocation whatever in the State. Take still another case ; 
 suppose that, in the progress of events, persons now in the 
 minority in the State should obtain the ascendency, and secure 
 the control of the government ; nothing could prevent, if the 
 Constitutional prohibition can be evaded, the enactment of a 
 provision requiring every person, as a condition of holding 
 any position of honor or trust, or of pursuing any avocation in 
 the State, to take an oath that he had never advocated or ad- 
 vised or supported the imposition of the present expurgatory 
 oath. Under this form of legislation the most flagrant inva- 
 sion of private rights, in periods of excitement, may be 
 enacted, and individuals, and even whole classes, may be de- 
 prived of political and civil rights. 
 
 A question arose in New York, soon after the treaty of 
 peace in 1783, upon a statute of that State, which involved a 
 discussion of the nature and character of these expurgatory 
 oaths, when used as a means of inflicting punishment for past 
 conduct. The subject was regarded as so important, and the 
 requirement of the oath such a violation of the fundamental 
 principles of civil liberty and the rights of the citizen, that it 
 engaged the attention of eminent lawyers and distinguished 
 
THE CUMMINGS AND GARLAND CASES. 17 
 
 Opinion of the Court. 
 
 statesmen of the time, and among others of Alexander Hamil- 
 ton. We will cite some passages of a paper left by him on 
 the subject, in which, with his characteristic fulness and 
 ability, he examines the oath, and demonstrates that it is not 
 only a mode of inflicting punishment, but a mode in violation 
 ,of all the constitutional guaranties, secured by the Revolution, 
 of the rights and liberties of the people. 
 
 " If we examine it " (the measure requiring the oath), said 
 this great lawyer, "with an unprejudiced eye, we must ac- 
 knowledge, not only that it was an evasion of the treaty, but a 
 subversion of one great principle of social security, to wit : 
 that every man shall be presumed innocent until he is proved 
 guilty. This was to invert the order of things ; and, instead 
 of obliging the State to prove the guilt, in order to inflict the 
 penalty, it was to oblige the citizen to establish his own inno- 
 cence to avoid the penalty. It was to excite scruples in the 
 honest and conscientious, and to hold out a bribe to perjury. 
 *.-- . It was a mode of inquiry who had committed any of 
 those crimes to which the penalty of disqualification was an- 
 nexed, with this aggravation, that it deprived the citizen of the 
 benefit of that advantage which he would have enjoyed by 
 leaving, as in all other cases, the burthen of the proof upon 
 the prosecutor. 
 
 " To place this matter in a still clearer light, let it be sup- 
 posed that instead of the mode of indictment and trial by jury, 
 the legislature was to declare that every citizen, who did not 
 swear he had never adhered to the King of Great Britain, 
 should incur all the penalties which our treason laws prescribe. 
 Would this not be a palpable evasion of the treaty, and a di- 
 rect infringement of the Constitution ? The principle is the 
 same in both cases, with only this difference in the conse- 
 quences ; that in the instance already acted upon the citizen 
 forfeits a part of his rights ; in the one supposed he would for- 
 feit the whole. The degree of punishment is all that distin- 
 guishes the cases. In either, justly considered, it is substitut- 
 ing a new and arbitrary mode of prosecution to that ancient 
 and highly-esteemed one recognized by the laws and the Con- 
 stitution of the State. I mean the trial by jury. 
 2 
 
18 TEST OATHS FOR PAST CONDUCT. 
 
 Opinion of the Court. 
 
 " Let us not forget that the Constitution declares that trial 
 by jury, in all cases in which it has been formerly used, should 
 remain inviolate forever, and that the legislature should at 
 no time erect any new jurisdiction which should not proceed 
 according to the course of the common law. Nothing 
 can be more repugnant to the true genius of the common law 
 than such an inquisition as has been mentioned into the con- 
 sciences of men. ... If any oath with retrospect to past 
 conduct were to be made the condition on which individuals, 
 who have resided within the British lines, should hold their 
 estates, we should immediately see that this proceeding would 
 be tyrannical, and a violation of the treaty ; and yet, when the 
 same mode is employed to divest that right which ought to be 
 deemed still more sacred, many of us are so infatuated as to 
 overlook the mischief. 
 
 " To say that the persons who will be affected by it have 
 previously forfeited that right, and that therefore nothing is 
 taken away from them, is a begging of the question. How do 
 we know who are the persons in this situation ? If it be an- 
 swered, this is the mode taken to ascertain it, the objection re- 
 turns, 'tis an improper mode, because it puts the most essen- 
 tial interests of the citizen upon a worse footing than we 
 should be willing to tolerate where inferior interests were con- 
 cerned, and because, to elude the treaty, it substitutes for the 
 established and legal mode of investigating crimes and inflict- 
 ing forfeitures, one that is unknown to the Constitution, and 
 repugnant to the genius of our law." 
 
 Similar views have frequently been expressed by the judi- 
 ciary in cases involving analogous questions. They are pre- 
 sented with great force in the matter of Dorsey,* but we do 
 not deem it necessary to pursue the subject further. 
 
 The judgment of the Supreme Court of Missouri must be re- 
 versed, and the cause remarfded, with directions to enter a 
 judgment reversing the judgment of the Circuit Court, and di- 
 recting that court to discharge the defendant from imprison- 
 ment, and suffer him to depart without day. And it is so or- 
 dered. 
 
 * 7 Porter's Reports, 294. 
 
SUPEEME COUET OF THE UNITED STATES. 
 
 EX-PARTE GARLAND. 
 
 MR. JUSTICE FIELD delivered the opinion of the court.* 
 On the 2d of July, 1862, Congress passed an act prescribing 
 an oath to be taken by every person elected or appointed to 
 any office of honor or profit under the government of the 
 United States, either in the civil, military, or naval depart- 
 ments of the public service, except the President, before enter- 
 ing upon the duties of his office, and before being entitled to 
 its salary or other emoluments. On the 24th of January, 
 1865, Congress, by a supplementary act, extended its provis- 
 ions so as to embrace attorneys and counsellors of the courts 
 of the United States. This latter act provides that after its 
 passage no person shall be admitted as an attorney and coun- 
 sellor to the bar of the Supreme Court, and, after the 4th of 
 March, 1865, to the bar of any Circuit or District Court of the 
 United States, or of the Court of Claims, or be allowed to 
 appear and be heard by virtue of any previous admission, or 
 any special power of attorney, unless he shall have first taken 
 and subscribed the oath prescribed by the act of July 2d, 
 1862. It also provides that the oath shall be preserved among 
 the files of the court ; and if any person take it falsely he shall 
 be guilty of perjury, and, upon conviction, shall be subject to 
 the pains and penalties of that offence. 
 
 At the December Term, 1860, the petitioner was admitted 
 as an attorney and counsellor of this court, and took and sub- 
 scribed the oath then required. By the second rule, as it then 
 existed, it was only requisite to the admission of attorneys 
 and counsellors of this court that they should have been such 
 
 * Delivered at the December Term, 1866, and reported in 4th Wallace, 
 Supreme Court Reports, 374. 
 
20 TEST OATHS FOR PAST CONDUCT. 
 
 Opinion of the Court. 
 
 officers for the three previous years in the highest courts of 
 the States to which they respectively belonged, and that their 
 private and professional character should appear to be fair. 
 
 In March, 1865, this rule was changed by the addition of a 
 clause requiring the administration of the oath, in conformity 
 with the act of Congress. 
 
 In May, 1861, the State of Arkansas, of which the petitioner 
 was a citizen, passed an ordinance of secession, which purported 
 to withdraw the State from the Union, and afterwards, in the 
 same year, by another ordinance, attached herself to the so- 
 called Confederate States, and by act of the Congress of that 
 Confederacy was received as one of its members. 
 
 The petitioner followed the State, and was one of her repre- 
 sentatives, first in the lower house, and afterwards in the 
 Senate, of the Congress of that Confederacy, and was a mem- 
 ber of the Senate at the time of the surrender of the Con- 
 federate forces to the armies of the United States. 
 
 In July, 1865, he received from the President of the United 
 States a full pardon for all offences committed by his partici- 
 pation, direct or implied, in the rebellion. He now produces 
 his pardon, and asks permission to continue to practice as an 
 attorney and counsellor of the court without taking the oath 
 required by the act of January 24th*. 1865, and the rule of the 
 court, which he is unable to take by reason of the offices he 
 held under the Confederate Government. He rests his appli- 
 cation principally upon two grounds : 
 
 1st. That the act of January 24th, 1865, so far it affects his 
 status in the court, is unconstitutional and void ; and, 
 
 2cl. That, if the act be constitutional, he is released from 
 compliance with its provisions by the pardon of the President. 
 
 The oath prescribed by the act is as follows : 
 
 1st. That the deponent has never voluntarily borne arms 
 against the United States since he has been a citizen thereof ; 
 
 2d. That he has not voluntarily given aid, countenance, 
 counsel, or encouragement to persons engaged in armed 
 hostility thereto ; 
 
 3d. That he has never sought, accepted, or attempted to 
 exercise the functions of any office whatsoever, under any au- 
 
THE CUMMINGS AND GARLAND CASES. 21 
 
 Opinion of the Court. 
 
 thority, or pretended authority, in hostility to the United 
 States ; 
 
 4th. That he has not yielded a voluntary support to any 
 pretended government, authority, power, or Constitution 
 within the United States, hostile or inimical thereto ; and, 
 
 5th. That he will support and defend the Constitution of the 
 United States against all enemies, foreign and domestic, and 
 will bear true faith and allegiance to the same. 
 
 This last clause is promissory only and requires no consider- 
 ation. The questions presented for our determination arise 
 from the other clauses. These all relate to past acts. Some 
 of these acts constituted, when they were committed, offences 
 against the criminal laws of the country ; others may, or may 
 not, have been offences according to the circumstances under 
 which they were committed, and the motives of the parties. 
 The first clause covers one form of the crime of treason, and 
 the deponent must declare that he has not been guilty of this 
 crime, not only during the war of the rebellion, but during any 
 period of his life since he has been a citizen. The second 
 clause goes beyond the limits of treason, and embraces not 
 only the giving of aid and encouragement of a treasonable 
 nature to a public enemy, but also the giving of assistance of 
 any kind to persons engaged in armed hostility to the United 
 States. The third clause applies to the seeking, acceptance or 
 exercise not only of offices created for the purpose of more 
 effectually carrying on hostilities, but also of any of those 
 offices which are required in every community, whether in 
 peace or war, for the administration of justice and the preser- 
 vation of order. The fourth clause not only includes those 
 who gave a cordial and active support to the hostile govern- 
 ment, but also those who yielded a reluctant obedience to the 
 existing order, established without their co-operation. 
 
 The statute is directed against parties who have offended in 
 any of the particulars embraced by these clauses. And its 
 object is to exclude them from the profession of the law, or at 
 least from its practice in the courts of the United States. As 
 the oath prescribed cannot be taken by these parties, the act, 
 as against them, operates as a legislative decree of perpetual 
 
 TISIVBRSITY1 
 
22 TEST OATHS FOR PAST CONDUCT. 
 
 Opinion of the Court. 
 
 exclusion. And exclusion from any of the professions or any 
 of the ordinary avocations of life for past conduct can be re- 
 garded in no other light than as punishment for such conduct. 
 The exaction of the oath is the mode provided for ascertaining 
 the parties upon whom the act is intended to operate, and in- 
 stead of lessening, increases its objectionable character. All 
 enactments of this kind partake of the nature of bills of pains 
 and penalties, and are subject to the constitutional inhibition 
 against the passage of bills of attainder, under which general 
 designation they are included. 
 
 In the exclusion which the statute adjudges it imposes a 
 punishment for some of the acts specified which were not 
 punishable at the time they were committed ; and for other of 
 the acts it adds a new punishment to that before prescribed, 
 and it is thus brought within the further inhibition of the 
 Constitution against the passage of an ex post facto law. In 
 the case of Cummings against the State of Missouri, just de- 
 cided, we have had occasion to consider at length the mean- 
 ing of a bill of attainder and of an ex post facto law in the 
 clause of the Constitution forbidding their passage by the 
 States, and it is unnecessary to repeat here what we there 
 said, A like prohibition is contained in the Constitution 
 against enactments of this kind by Congress ; and the argu- 
 ment presented in that case against certain clauses of the Con- 
 stitution of Missouri is equally applicable to the act of Con- 
 gress under consideration in this case.* 
 
 * " Suppose the act to have been mandatory to the courts, to call upon all 
 the members of their bar to answer on oath, whether they had borne arms 
 against the United States since they became citizens ; whether they had vol- 
 untarily given aid, counsel, countenance, or encouragement, to persons en- 
 gaged in hostilities to the United States ; whether they had sought or per- 
 formed the functions of any office, under any authority, or pretended 
 authority, in hostility to the United States ; or had yielded a voluntary sup- 
 port to any pretended authority or government within the United States, or 
 inimical thereto, and upon the failure of any one to answer such interroga- 
 tions and all elucidating interrogations, or to answer satisfactorily, it should 
 be their duty to erase the name of such recusant attorney from the rolls. 
 
 . . . And suppose in such case the attorney-general were asked, 
 whether, since he had been a citizen of the United States, he had borne arms 
 
THE CUMMIN GS AND GAKLAND CASES. 23 
 
 Opinion of the Court. 
 
 The profession of an attorney and counsellor is not like an 
 office created by an act of Congress, which depends for its 
 continuance, its powers, and its emoluments upon the will of 
 its creator, and the possession of which may be burdened with 
 any conditions not prohibited by the Constitution. Attorneys 
 and counsellors are not officers of the United States ; they are 
 not elected' nor appointed in the manner prescribed by the 
 Constitution for the election and appointment of such officers. 
 They are officers of the court, admitted as such by its order, 
 upon evidence of their possessing sufficient legal learning and 
 
 against the United States? The attorney-general would be informed that 
 he might answer or not ; but if lie failed to answer he would lose his faculty 
 of appearing in court. If he answered in the affirmative he would forfeit 
 his place, and if he answered falsely, he would be liable to indictment. . . 
 He must have answered, ' May it please your Honors, the Constitution of 
 the United States declares that "no person SHALL BE HELD TO ANSWER FOB A 
 CAPITAL OR OTHERWISE INFAMOUS OFFENCE, unless on the presentment of a 
 grand jury ; that no person shall be convicted of treason unless on the testi- 
 mony of two witnesses to the same overt act, or confession in open court ; 
 and that no person shall be compelled in any criminal case to be a witness 
 against himself." The act of bearing arms against the United States is an 
 overt act of treason by a citizen thereof. The demand upon a whole pro- 
 fession a profession of which I am a member to perform a ceremony that 
 violates the Constitution is an indignity. I fulfil my oath of office to sup- 
 port this Constitution by declining to answer the question. I submit this 
 answer to the conscience of the court.' I feel satisfied that no Supreme 
 Court would have insisted on the answer. . .- ; 
 
 " Let us suppose that the act had enumerated by name all the members of 
 the bar of the different courts of the United States, and had enacted that each 
 and all of those must be prohibited from entering the courts until they had 
 made oath that they had not in the course of their lives, violated any one of the 
 TEN commandments. Some of these commandments do not enter into the 
 statute laws of the United States ; and others are not, perhaps, the subject 
 of legislative action in any of the United States. Every one of the existing 
 members of the legal profession would probably find himself in a condition 
 not to answer to his own satisfaction such interrogatories to himself as the 
 law would elicit. 
 
 "Jeremy Taylor, in his exposition of those commandments not a strained 
 construction of them shows that they include nearly all of the social, civil, 
 and personal obligations of men. I am wholly unable to find any arguments 
 in favor of my professional brethren to avoid the issue of such a test, that 
 are not equally applicable to the act of January, 1865." CAMPBELL. 
 
24 TEST OATHS FOR PAST CONDUCT. 
 
 Opinion of the Court. 
 
 fair private character. It lias been the general practice in 
 this country to obtain this evidence by an examination of the 
 parties. In this court the fact of the admission of such offi- 
 cers in the highest court of the States to which they respect- 
 ively belong, for three years preceding their application, is 
 regarded as sufficient evidence of the possession of the requi- 
 site legal learning, and the statement of counsel moving their 
 admission sufficient evidence that their private and profes- 
 sional character is fair. The order of admission is the judg- 
 ment of the court that the parties possess the requisite quali- 
 fications as attorneys and counseUors, and are entitled to ap- 
 pear as such and conduct causes therein. From its entry the 
 parties become officers of the court, and are responsible to it 
 for professional misconduct. They hold their office during 
 good behavior, and can only be deprived of it for misconduct 
 ascertained and declared by the judgment of the court after op- 
 portunity to be heard has been afforded.* Their^admission or 
 
 * " It is a fundamental principle in jurisprudence that no man shall be de- 
 prived of his" right without citation and an opportunity of being heard. In 
 the jurisprudence of the Romans the magistrates of mankind it was a rule 
 that no judgment should be given before citation. A. Roman governor in a 
 remote and despised province a governor weak, faithless, and corrupt in 
 the case of the great Apostle, has made this principle a home-word in the 
 mouths of all Christians. Festus informed Agrippa that he had answered to 
 the Jews : ' It is not the manner of the Romans to deliver any man to die, 
 before that he which is accused have the accusers face to face, and have 
 license to answer for himself concerning the crime laid against him.' (Acts, 
 chap. 25, v. 16.) This sentence is a part of the Constitution of the United 
 States, with more generality than it was necessary for Festus to state." 
 CAMPBELL. 
 
 In Ex parte Robinson, decided at the October Term, 1873, the court held 
 that before a judgment disbarring an attorney was rendered, he should have 
 notice of the grounds of complaint against him and ample opportunity of 
 explanation and defence, and that this was a rule of natural justice which 
 should be equally followed when proceedings are taken to deprive him of his 
 right to practise his profession, as when they are taken to reach his real or 
 personal property ; observing that the principle that there must be citation 
 before hearing, and hearing or opportunity of being heard before judgment, 
 was essential to the security of all private rights, and without its observance 
 no one would be safe from oppression wherever power may be lodged. See 
 Ex parte Heyfron, 7 Howard (Mississippi), 127 ; People v. Turner, 1 Cal., 
 148; Beene v. The State, 22 Ark., 157, and Fletcher v. Daingerfield, 20 Cali- 
 fornia, 430. 
 
THE CUMMIKGS AND GARLAND CASES. 25 
 
 Opinion of the Court. 
 
 their exclusion is not the exercise of a mere ministerial power. 
 It is the exercise of judicial power, and has been so held in nu- 
 merous cases. It was so held by the Court of Appeals of New 
 York in the matter of the application of Cooper for admission.* 
 " Attorneys and counsellors," said that court, u are not only 
 officers of the court, but officers whose duties relate almost 
 exclusively to proceedings of a judicial nature. And hence 
 their appointment may, with propriety, be intrusted to the 
 courts, and the latter, in performing this duty, may very justly 
 be considered as engaged in tlxe exercise of their appropriate 
 judicial functions." 
 
 In Ex parte Secombe^ a mandamus to the Supreme Court of 
 the Territory of Minnesota to vacate an order removing an 
 attorney and counsellor was denied by this court, on the 
 ground that the removal was a judicial act. " We are not 
 aware of any case," said the court, " where a mandamus was 
 issued to an inferior tribunal, commanding it to reverse or 
 annul its decision, where the decision was in its nature a judi- 
 cial act, and within the scope of its jurisdiction and discre- 
 tion." And in the same case the court observed that " it has 
 been well settled by the rules and practice of common-law 
 courts, that it rests exclusively with the courts to determine 
 who is qualified to become one of its officers, as an attorney 
 and counsellor, and for what cause he ought to be removed. 
 
 The attorney and counsellor being, by the solemn judicial 
 act of the court, clothed with his office does not hold it as a 
 matter of grace and favor. The right which it confers upon 
 him to appear for suitors, and to argue causes, is something 
 more than a mere indulgence, revocable at the pleasure of the 
 court, or at the command of the legislature. It is a right of 
 which he can only be deprived by the judgment of the court 
 for moral or professional delinquency. 
 
 * 22 New York, 81. f 19 Howard, 9. 
 
 \ But when the court below exceeds its jurisdiction, and disbars an attor- 
 ney for an alleged contempt committed in its presence or before another 
 court, mandamus will lie from the Supreme Court to restore him to his 
 office. So held in Ex parte Bradley, 7 Wallace, and in Ex parte Robinson, 
 
 3 
 
26 TEST OATHS FOR PAST CONDUCT. 
 
 Opinion of the Court. 
 
 The legislature may undoubtedly prescribe qualifications 
 for the office, to which he must conform, as it may, where it 
 has exclusive jurisdiction, prescribe qualifications for the pur- 
 suit of any of the ordinary avocations of life. The question 
 in this case is not as to the power of Congress to prescribe 
 qualifications, but whether that power has been exercised as a 
 means for the infliction of punishment against the prohibition 
 of the Constitution. That this result cannot be effected in- 
 directly by a State under the form of creating qualifications 
 we have held in the case of Cummings v. The State of Missouri, 
 and the reasoning by which that conclusion was reached 
 applies equally to similar action on the part of Congress. 
 
 This view is strengthened by a consideration of the effect of 
 the pardon produced by the petitioner, and the nature of the 
 pardoning power of the President. 
 
 The Constitution provides that the President " shall have 
 power to grant reprieves and pardons for offences against the 
 United States, except in cases of impeachment." * 
 
 The power thus conferred is unlimited, with the exception 
 stated. It extends to every offence known to the law, and 
 may be exercised at any time after its commission, either be- 
 fore legal proceedings are taken or during their pendency, or 
 after conviction and judgment. This power of the President 
 is not subject to legislative control. Congress can neither 
 limit the effect of his pardon nor exclude from its exercise any 
 class of offenders. The benign prerogative of mercy reposed 
 in him cannot be fettered by any legislative restrictions. 
 
 Such being the case, the inquiry arises as to the effect and 
 operation of a pardon, and on this point all the authorities 
 concur. A pardon reaches both the punishment prescribed 
 for the offence and the guilt of the offender ; and when the 
 pardon is full, it releases the punishment and blots out of 
 existence the guilt, so that in the eye of the law the offender 
 is as innocent as if he had never committed the offence. If 
 granted before conviction, it prevents any of the penalties and 
 disabilities consequent upon conviction from attaching ; if 
 granted after conviction, it removes the penalties and disabili- 
 * Article II. 2. ~ 
 
THE CTJMMINGS AND GARLAND CASES. 27 
 
 Opinion of the Court. 
 
 ties, and restores him to all his civil rights ; it makes him, as 
 it were, a new man, and gives him a new credit and capacity. 
 
 There is only this limitation to its operation : it does not re- 
 store offices forfeited, or property or interests vested in others 
 in consequence of the conviction and judgment.* 
 
 The pardon produced by the petitioner is a full pardon 
 " for all offences by him committed, arising from participation, 
 direct or implied, in the rebellion," and is subject to certain 
 conditions which have been complied with. The effect of this 
 pardon is to relieve the petitioner from all penalties and disa- 
 bilities attached to the offence of treason, committed by his 
 participation in the rebellion. So far as that offence is con- 
 cerned, he is thus placed beyond the reach of punishment of 
 any kind. But to exclude him, by reason of that offence, 
 from continuing in the enjoyment of a previously acquired 
 right, is to enforce a punishment for that offence notwithstand- 
 ing the pardon. If such exclusion can be effected by the 
 exaction of an expurgatory oath covering the offence, the par- 
 don may be avoided, and that accomplished indirectly which 
 
 * 4 Blaekstoue's Commentaries, 402 ; 6 Bacon's Abridgment, tit. Pardon ; 
 Hawkins, book 2, c. 37, 34 and 54. 
 
 In Carlisle v. The United States, decided at the December Term, 1872, in 
 speaking of the effect of the proclamation of pardon and amnesty, made by 
 the President on the 25th of December, 1868, upon the rights of certain par- 
 ties, who had given aid and comfort to the rebellion, and who were claimants 
 before the Court of Claims of the proceeds of cotton seized by the officers of 
 the United States and turned over to the agents of the Treasury Department, 
 the court said : " Assuming that they [the claimants] are within the terms 
 of the proclamation, the pardon and amnesty granted relieve them from 
 the legal consequences of their participation in the rebellion, and from the 
 necessity of proving that they had not thus participated, which otherwise 
 would have been indispensable to a recovery. It is true the pardon and am- 
 nesty do not and cannot alter the fact that aid and comfort were given by the 
 claimants, but they forever close the eyes of the court to the perception of that 
 fact as an element in its judgment, no rights of third parties having intervened. 
 
 " There has been some difference of opinion among the members of the 
 court as to cases covered by the pardon of the President, but there has been 
 none as to the effect and operation of a pardon in cases where it ap- 
 plies. All have agreed that the pardon not merely releases the offender 
 from the punishment prescribed for the offence, but that it obliterates in 
 legal contemplation the offence itself." 16 Wallace, 151. 
 
28 TEST OATHS FOR PAST CONDUCT. 
 
 Opinion of the Court. 
 
 cannot be reached by direct legislation. It is not within the 
 constitutional power of Congress thus to inflict punishment 
 beyond the reach of executive clemency. From the petitioner, 
 therefore, the oath required by the act of January 24th, 1865, 
 could not be exacted, even if that act were not subject to any 
 other objection than the one thus stated. 
 
 It follows, from the views expressed, that the prayer of the 
 petitioner must be granted.* 
 
 The case of E. H. Marr is similar, in its main features, to 
 that of the petitioner, and his petition must also be granted. 
 
 And the amendment of the second rule of the court which 
 requires the oath prescribed by the act of January 24th, 1865, 
 to be taken by attorneys and counsellors, having been unad- 
 visedly adopted, must be rescinded. 
 
 And it is so ordered, f 
 
 * The President granted to Garland " a full pardon and amnesty for all 
 offences by him committed arising from participation, direct or implied, in 
 the rebellion." The term amnesty is not found in the Constitution, but is 
 generally used to denote the clemency which is extended to a class of persons 
 or to a whole community. Pardon is the generic term, and includes every 
 species of executive clemency, individual, general, conditional, and absolute. 
 See The Federalist, No. 74 ; H. 8. v. Wilson, 7 Peters, 150 ; Ex parte Wells, 
 18 How. 315. 
 
 f In the decision of these two cases, Cummings v. The State of Missouri, 
 and Ex parte Garland, Justices Wayne, Nelson, Grier, Clifford, and Field con- 
 curred. Chief Justice Chase, and Justices Swayne, Miller, and Davis dis- 
 sented. Subsequently the Chief Justice expressed his concurrence in the 
 opinion of the majority ; and the decision was followed by the entire court, 
 with the exception of Mr. Justice Bradley, in the case of Pierce v. Carskci- 
 don, decided at the December Term, 1872. 16 Wallace, 234. 
 
THE CONSTITUTIONALITY 
 
 OP THE 
 
 CONFISCATION ACT OF 1862 
 
 CONSIDERED 
 
 Jos. L. Pearson, Printer, 9th and D streets, Washington, D. C. 
 
THE CONSTITUTIONALITY 
 
 CONFISCATION ACT OF JULY I?TH, 1862, 
 
 THE DISSENTING OPINIONS 
 
 OF 
 
 MR. JUSTICE FIELD, 
 
 OF U. S. SUPREME COURT, 
 
 IN 
 
 MILLER'S EXECUTOR vs. THE UNITED STATES 
 
 AND 
 
 TYLER vs. DEFREES. 
 
 WASHINGTON : 
 JOSEPH L. PEARSON, ^RINTER, 
 
 Corner of Ninth and D Streets. 
 
Supreme Court of the United States, 
 
 Miller's Executor ^ From the Circuit Court of the United 
 vs. i States for the Eastern District of 
 
 The United States. J Michigan. 
 
 Mr. Justice FIELD dissenting.* 
 
 I am unable to agree with the majority of the court in 
 the judgment just rendered in this case, and will state, 
 with as much brevity as possible, the grounds of my dis- 
 agreement. 
 
 The case was brought for the forfeiture of personal 
 property belonging to the appellant, and is founded upon 
 what is termed the confiscation act of July 17th, 1862. 
 There is, it is true, a count tn the libel upon the act of 
 August 6th, 1861, but no reliance has been placed upon 
 it to support the forfeiture. The case has proceeded upon 
 the theory that the stock, alleged to have been seized by 
 the marshal, was in Michigan, and had been there since 
 it was issued, a period anterior to the rebellion and, of 
 course, to the passage of the act in question, a position 
 inconsistent with any claim that the property had been 
 subsequently purchased to be used, or had been used, in 
 aiding, abetting, or promoting the rebellion. No further 
 attention will therefore be given to that act. 
 
 I shall direct my attention, in the first place, to the va- 
 lidity of the legislation embodied in the act of July 17th, 
 1862, and then, assuming that legislation to be valid and 
 in accordance with the Constitution, shall consider 
 whether the proceedings in the case are in conformity 
 with, its requirements. 
 
 *Delivered at the December Term of 1870, and reported in llth Wallace's 
 Supreme Court Reports, 314, under the title of Miller vs. United States. 
 
The authority for the legislation in question must be 
 found in what are termed the war powers of the govern- 
 ment; which, so far as they touch upon the present sub- 
 ject of inquiry, are the power to declare war, to suppress 
 insurrection, and to make rules concerning captures on 
 land and water; or, in what is termed the municipal 
 power of the government to legislate for the punishment 
 of offences against the United States. 
 
 It has been held, that when the late rebellion assumed 
 the proportions of a territorial civil war, the inhabitants 
 of the Confederate States, and the inhabitants of the loyal 
 States, became reciprocally enemies to each other, and 
 that the inhabitants of the Confederate States engaged 
 
 o o 
 
 in the rebellion, or giving aid and comfort thereto, were 
 at the same time amenable to the municipal law as rebels. 
 The correctnessof this determination is not disputed. 
 The question is, not as to the right of the United States 
 to adopt either course against the inhabitants of the Con- 
 federate States engaged in the rebellion ; that is, the right 
 to treat them as public enemies, and to apply to them all 
 the harsh measures justified by the rules of war; or the 
 right to prosecute them in the ordinary modes of crimi- 
 nal procedure for the punishment of treason ; but what 
 course has Congress, by its legislation, authorized. For 
 it is evident that legislation founded upon the war powers 
 of the government, and directed against the public ene- 
 mies of the United States, is subject to different consid- 
 jprations and limitations from those applicable to'legisla- 
 tion founded upon the municipal power of the govern- 
 ment, and directed against criminals. Legislation in the 
 former case is subject to no limitations, except such as 
 are imposed by the law of nations in the conduct of war. 
 Legislation in the latter case is subject to all the limita- 
 tions prescribed by the Constitution for the protection of 
 the citizen against hasty and indiscriminate accusation, 
 and which insure to him, when accused, a speedy and 
 public trial by a jury of his peers. 
 
The war powers of the government have no express 
 limitation in the Constitution, and the only limitation to 
 which their exercise is subject is the law of nations. That 
 limitation necessarily exists. When the United States 
 became an independent nation, they became, to use the 
 language of Chancellor Kent, " subject to that system of 
 rules which reason, morality, and custom had established 
 among the civilized nations of Europe as their public 
 law."* And it is in the light of that law that the war 
 powers of the government must be considered. The 
 power to prosecute war granted by the Constitution, as is 
 well said by counsel, is a power to prosecute war accord- 
 ing to the law of nations, and not in violation of that 
 law. The power to make rules concerning captures on 
 land and water is a power to make such rules as Congress 
 may prescribe, subject to the condition that they are 
 within the law of nations. There is a limit to the means 
 of destruction which government, in the prosecution of 
 war, may use, and there is a limit to the subjects of cap- 
 ture and confiscation, which government may authorize, 
 imposed by the law of nations, and is no less binding 
 upon Congress than if the limitation were written in the 
 Constitution. f The plain reason of this is, that the rules 
 and limitations prescribed by that law were in the con- 
 templation of the parties who framed and the people who 
 adopted the Constitution. 
 
 Whatever any independent civilized nation may do in 
 
 #1 Kent's Comra., 1. 
 
 fThus it is forbidden by the law of nations to use poisoned weapons or to 
 poison wells, springs, waters, or any kind of food intended for the enemy. 
 " Any state or general," says Halleck, " who should resort to such means 
 would be regarded as an enemy to the human race, and excluded from civil- 
 ized society." So also it is forbidden to encourage the assassination of an 
 enemy "or his generals or leaders, or to put to death prisoners of war, except 
 in case of absolute necessity, or to make slaves of them or to sell them into 
 slavery ; or to take the lives of the aged, disabled, and infirm, or to maltreat 
 their persons. The United States are not freed from these prohibitions be- 
 cause they are not inserted in the Constitution. (Halleck's Inter. Law, chaps. 
 XVI. and XVIII.) 
 
 I 
 
6 
 
 the prosecution of war, according to the law of nations, 
 Congress, under the Constitution, may authorize to be 
 done, and nothing more. 
 
 'Now, in Brown vs. United States,* Mr. Chief Justice 
 Marshall, in delivering the opinion of the court, said 
 that it was conceded that " war gives to the sovereign 
 full right to take the persons and confiscate the property 
 of the enemy wherever found," and added that "the 
 mitigations of this rigid rule, which the humane and wise 
 policy of modern times has introduced into practice, will 
 more or less affect the exercise of this right, but cannot 
 impair the right itself. That remains undiminished, and 
 when the sovereign authority shall choose to bring it into 
 operation the judicial department must give effect to its 
 will." The question presented for consideration in that 
 case was whether enemy's property, found on land at the 
 commencement of hostilities with Great Britain in 1812,- 
 could be seized and condemned as a necessary conse- 
 quence of the declaration of war ; and the decision of the 
 court was that it could not be condemned without an act 
 of Congress authorizing its confiscation. The language 
 of the eminent chief justice is perhaps subject to some 
 qualification, if it was intended to state as a rule of pub- 
 lic law that all property of the enemy, whether on land 
 or water, was subject to confiscation. Mr. Wheaton, who 
 is authority on all questions of public law, says that by 
 the modern usage of nations, which has acquired the 
 force of law, " private property on land is exempt from 
 confiscation, with the exception of such as may become 
 booty in special cases, when taken from enemies* in the 
 field or in besieged "towns and of military contributions 
 levied upon the inhabitants of the hostile territory," and 
 that " this exemption extends even to the case of an ab- 
 solute and unqualified conquest of the enemy's country."f 
 And Mr. Chief Justice Marshall, in the subsequent 
 
 *8th Cranch, 122. 
 
 |Law of Nations, Lawrence's ed., p. 596. 
 
case of The United States vs. Percheman,* observed 
 that it was unusual, even in cases of conquest, for the 
 conqueror to do more than to displace the sovereign and 
 assume dominion over the country, and that " the modern 
 usage of nations, which has become law, would be vio- 
 lated ; that sense of justice and right, which is acknowl- 
 edged and felt by the whole civilized world, would be out- 
 raged if private property should be generally confiscated, 
 and private rights annulled." 
 
 But assuming the severe rule laid down by the chief 
 justice to. be the true rule, it applies only to the property 
 of enemies, and by enemies is meant permanent inhabi- 
 tants of the enemies' country. It is their property alone 
 which is the subject of seizure and confiscation by au- 
 thority of Congress, legislating under the war powers. 
 Their property is liable, not by reason of an} 7 hostile dis- 
 position manifested by them or hostile acts committed, 
 or any violation of the laws of the United States, but 
 solely from the fact that they are inhabitants of the hos- 
 tile country, and thus in law are enemies. 
 
 If we turn now to the act of July 17th, 1862, we find 
 that its provisions are not directed against enemies at 
 all, but against persons who have committed certain 
 overt acts of treason. It does not purport in any part of 
 it to deal with enemies. It declares in its title that its 
 object is "to suppress insurrection, to punish treason 
 and rebellion, to seize and confiscate the property of 
 rebels, and for other purposes." The other purposes re- 
 late principally to slaves, their employment or coloniza- 
 tion, and the power of the President to proclaim amnesty 
 and pardon. They have no bearing upon the questions 
 under consideration, and need not be further noticed. 
 The first section of the act prescribes the punishment for 
 treason thereafter committed. It punishes it with death, 
 or, in the discretion of the court, with imprisonment for 
 not less than five years and a fine of not less than ten 
 
 *7 Peters, 86. 
 
8 
 
 thousand dollars; and it provides that the slaves of the 
 party adjudged guilty, if any he have, shall be declared 
 free. The second section provides for the punishment of 
 the offence of inciting, setting on foot, or engaging in any 
 rebellion or insurrection against the authority of the 
 United States or the laws thereof, or engaging in or giv- 
 ing aid and comfort to the rebellion then existing. The 
 third section declares that parties guilty of either of the 
 offences thus described shall be forever incapable and 
 disqualified to hold any office under the United States. 
 The fourth section provides that the act shall not affect 
 the prosecution, conviction, or punishment of persons 
 guilty of treason before the passage of the act, unless 
 such persons are convicted under the act itself. 
 
 Then follow the clauses which provide for the seizure 
 and confiscation of the property of certain classes of per- 
 sons, who may thereafter be guilty of certain overt acts 
 of treason. They contain no directions whatever for the 
 seizure of the property of enemies, but only of persons 
 who may thereafter violate the provisions of the act. 
 Among the classes designated are included persons who 
 may thereafter hold any agency under the Confederate 
 States or under any state composing the Confederacy, 
 and persons owning property in any loyal state or terri- 
 tory of the United States or District of Columbia, who 
 shall thereafter assist and give aid and comfort to the re- 
 bellion; persons who may or may not be enemies in the 
 sense in which the term is used in the law of nations; 
 that is, permanent inhabitants of the enemy's country. 
 So through all the provisions of the act, there is not a 
 single clause which indicates, in the slightest degree, that 
 it was against public enemies its provisions were di- 
 rected. They are applicable to all persons who may 
 do certain acts, whether they be enemies or not within 
 the meaning of the law of nations. 
 
 The only place in the act where the word enemies is 
 used, is in the clause which provides that if it be found 
 
9 
 
 by the courts, before which proceedings are instituted, 
 that the property seized belonged to a person engaged in 
 the rebellion or who had given aid or comfort thereto, 
 it should be condemned as enemies' property; that is, 
 should be condemned in the same manner as if it were 
 enemies' property. This clause does not provide that 
 the property shall be condemned if found to be enemies' 
 property, but that when condemned it shall be with the 
 like effect as though it were such property. 
 
 It would seem clear, therefore, that the provisions of 
 the act were not passed in the exercise of the war pow- 
 ers of the government, but in the exercise of the muni- 
 cipal power of the government to legislate for the pun- 
 ishment of offences against the United States. It is the 
 property of persons guilty of certain acts, wherever they 
 may reside, in loyal or disloyal states, which the statute 
 directs to be seized and confiscated. It is also for acts 
 committed after the passage of the statute, except in one 
 particular, corrected by the joint resolution of the two 
 houses, that the forfeiture is to be declared. If it had 
 been the intention of the statute to confiscate the prop- 
 erty of enemies, its prospective character would have 
 been entirely unnecessary, for whenever public war ex- 
 ists the right to order the confiscation of enemies' prop- 
 erty, according to Mr. Chief Justice Marshall, exists with 
 Congress. 
 
 That the legislation in question was directed, not against 
 enemies, but against persons who might be guilty of cer- 
 tain designated public offences, and that the forfeiture 
 ordered was intended as a punishment for the offences, 
 is made further evident by what followed the passage of 
 the act of Congress. After the bill was sent to the Presi- 
 dent it was ascertained that he was of opinion that it was 
 unconstitutional in some of its features, and that he in- 
 tended to veto it. His objections were that the restric- 
 tion of the Constitution concerning forfeitures not ex- 
 tending beyond the life of the offender had been disre- 
 
10 
 
 garded. To meet this objection, which had been com- 
 municated to members of the House of Representatives, 
 where the bill originated, a joint resolution explanatory 
 of the act was passed by the House and sent to the Sen- 
 ate. That body, being informed of the objections of the 
 President, concurred in the joint resolution. It was then 
 sent to the President and was received by him before the 
 expiration of the ten days allowed him for the considera- 
 tion of the original bill. He returned the bill and reso- 
 lution together to the House, where they originated, with 
 a message, in which he stated that, considering the act 
 and the resolution explanatory of the act as being sub- 
 stantially one, he had approved and signed both. That 
 joint resolution declares that the provisions of the third 
 clause of the fifth section of the act shall be so construed 
 as not to apply to any act or acts done prior to its pas- 
 sage, "nor shall any punishment or proceedings under 
 said act be so construed as to work a forfeiture of the 
 real estate of the offender beyond his natural life." 
 
 The terms here used, " forfeiture " of the estate of the 
 " offender," have no application to the confiscation of 
 enemies' property under the law of nations. They are, 
 as justly observed by counsel, strictly and exclusively 
 applicable to punishment for crime. It was to meet 
 the constitutional requirement that the punishment by 
 forfeiture should not extend beyond the life of the of- 
 fender that the joint resolution was passed. The Presi- 
 dent said to Congress, the act is penal, and does not con- 
 form to the requirement of the Constitution in the extent 
 of punishment which it authorizes, and I cannot, there- 
 fore, sign it. Congress accepts his interpretation, and 
 by its joint resolution directs a construction of the act 
 in accordance with his views. And this construction, 
 thus directed, is decisive, as it appears to me, of the 
 character of the act. Indeed it is difficult to conceive of 
 any reason for the limitation of the forfeiture of an es- 
 
11 
 
 tate to the life of the owner, if such forfeiture was in- 
 tended to apply only to the property of public enemies.* 
 The inquiry, then, arises whether proceedings in rem 
 for the confiscation of the property of parties charged to 
 be guilty of certain overt acts of treason, can be main- 
 tained without their previous conviction for the alleged 
 offences. Such proceedings, according to Mr. Chief 
 Justice Marshall, may be had for the condemnation of 
 enemies' property when authorized by Congress. The 
 proceedings in such cases are merely to authenticate the 
 fact, upon which, under the law of nations, the confisca- 
 tion follows. But here the inquiry is, whether, upon the 
 assumption that a party is guilty of a particular public 
 offence, his property may be seized, and upon proof of 
 his guilt, or its assumption upon his failure to appear 
 upon publication of citation, condemnation may be de- 
 creed. The inquiry is prompted from the supposed an- 
 alogy of these cases to proceedings in rem for the con- 
 fiscation of property for offences against the revenue 
 laws, or the laws for the suppression of the slave-trade. 
 But in thee cases, and in all cases where proceedings in 
 rem are authorized for a disregard of some municipal or 
 public law, the offence constituting the ground of con- 
 demnation inheres, as it were, in the thing itself. The 
 thing is the instrument of wrong, and is forfeited by rea- 
 son of the unlawful use made of it, or the unlawful con- 
 dition in which it is placed. And generally the thing, 
 thus subject to seizure, itself furnishes the evidence for 
 its own condemnation. Thus, goods found smuggled, not 
 having been subjected to the inspection of the officers of 
 the customs, or paid the duties levied by law, prove of 
 themselves nearly all that is desired to establish the right 
 of the government to demand their confiscation. A ship 
 entering the mouth of a blockaded port furnishes by its 
 position evidence of its intention to break the blockade, 
 
 * See Bigelow vs. Forrest, 9 Wall., 350, and McVeigh vs. United States, 
 11 Wallace, 259. 
 
12 
 
 and the decree of condemnation follows. A ship cap- 
 tured whilst engaged in the slave-trade furnishes, in the 
 use to which it was subjected, the material fact to be es- 
 tablished for its forfeiture. In all these cases the proceed- 
 ing is against the offending thing. And it is true that in 
 these cases criminal proceedings will also lie against the 
 smuggler or slave-trader, if arrested, and that the pro- 
 ceedings in rem are wholly independent of, and unaf- 
 fected by, the criminal proceedings against the person. 
 But in the two cases the proof is entirely different. In 
 the one case there must be proof that the thing proceeded 
 against was subjected to some unlawful use or was 
 found in some unlawful condition. In the other case 
 the personal guilt of the party must be established, and 
 when condemnation is founded upon such guilt, it 
 must be preceded by due conviction of the offender, ac- 
 cording to the forms prescribed by the Constitution. 
 " Confiscations of property," says Mr. Justice Sprague 
 in the Amy Warwick,* " not for any use that has been 
 made of it, which go not against an offending thing, 
 but are inflicted for the personal delinquency of the 
 owner, are punitive, and punishment should be inflicted 
 only upon due conviction of personal guilt." 
 
 If we examine the cases found in the reports, where 
 proceedings in rem have been sustained, we shall find 
 the distinction here stated constantly observed. Indeed, 
 were this not so, and proceedings in rem for the confisca- 
 tion of property could be sustained, without any reference 
 to the uses to which the property is applied, or the condi- 
 tion in which it is found, but whilst, so to speak, it is inno- 
 cent and passive, and removed at a distance from the owner 
 and the sphere of his action, on the ground of the per- 
 sonal guilt of the owner, all the safeguards provided by 
 the Constitution for the protection of the citizen against 
 punishment, without previous trial and conviction, and 
 
 * Sprague's Decisions, 2d vol., 150. 
 
13 
 
 after being confronted by the witnesses against him, would 
 be broken down and swept away. 
 
 There is no difference iii the relation between the 
 owner and his property and the government, when the 
 owner is guilty of treason and when he is guilty of any 
 other public offence. The same reason which would sus- 
 tain the authority of the government to confiscate the 
 property of a traitor would justify the confiscation of his 
 property when guilty of any other offence. And it would 
 sound strange to modern ears to hear that proceedings 
 in rem to confiscate the property of the burglar, the 
 highwayman, or the murderer were authorized, riot as a 
 consequence of their conviction upon regular criminal 
 proceedings, but without such conviction, upon ex-parte 
 proof of their guilt, or upon the assumption of their guilt 
 from their failure to appear to a citation, published in 
 the vicinage of the property, or posted upon the doors 
 of the adjoining court-house, and which they may never 
 have seen. It seems to me that the reasoning which up- 
 holds the proceedings in this case, works a complete 
 revolution in our criminal jurisprudence, and establishes 
 the doctrine that proceedings for the punishment of crime 
 against the person of the offender may be disregarded, 
 and proceedings for such punishment be taken against his 
 property alone, or that proceedings may be taken at the 
 same time both against the person and the property, and 
 thus a double punishment for the same offence be in- 
 flicted. 
 
 For these reasons I am of opinion that the legislation, 
 upon which it is sought to uphold the judgment in this 
 case, is not warranted by the Constitution. 
 
 I proceed to consider whether, if that legislation be 
 valid and constitutional, the proceedings in the case are 
 in conformity with its requirements. 
 
 The act of Congress requires the seizure of the prop- 
 erty, the forfeiture of which is sought, to be made under 
 directions of the President. This seizure is preliminary 
 
14 
 
 to the commencement of proceedings for the condemna- 
 tion of the property. "After the same shall have been 
 seized," says the statute, such proceedings shall be insti- 
 tuted. This preliminary executive seizure is essential to 
 authorize the filing of a libel of information, and in that 
 sense it is essential to give the court jurisdiction to pro- 
 ceed ; but it does not of itself vest in the court jurisdic- 
 tion over the property. The President could discharge 
 the property from the seizure without the permission of 
 the court or invoking its action. The mere fact that the 
 marshal is employed as the agent in making the seizure 
 does not alter the case. He does not then act as an of- 
 ficer of the court under its process. Any other person 
 might be selected by the President as his agent. In cases 
 under the revenue laws the seizure is often made by the 
 collector or some officer other than the marshal, and the 
 same thing might be done here. The preliminary seizure, 
 if the property be movable, only determines the court in 
 which judicial proceedings shall be instituted. To give 
 the court control over the property something more is es- 
 sential. The property must be brought into the custody 
 of the court, and this can only be done under the process 
 of the court. The very theory upon which all proceed- 
 ings in rem are sustained is that jurisdiction of the court 
 is acquired by taking the res into its custody. It is the 
 seizure under judicial process, judicial seizure as distin- 
 guished from any preliminary seizure in any other way, 
 which gives the jurisdiction, and nothing else ever has 
 been held to confer jurisdiction in this class of cases. 
 
 Now in the case before us there was not, in my judg- 
 ment, any preliminary seizure of the property made by 
 order of the executive or through his officers or agents, 
 or any subsequent seizure under judicial process. The 
 proceeding was instituted for the forfeiture of 200 shares 
 of the common stock of the Michigan Southern and 
 Northern Indiana Railroad Company, and 343 shares of 
 the Detroit, Monroe, and Toledo Railroad Company, and 
 
15 
 
 the only pretence of seizure consisted in a notice given 
 by the marshal, previous to the suit, to the vice-president 
 of the first company and the president of the second com- 
 pany that he had seized the stock in question. The mar- 
 shal returned that he made the alleged seizure by giving 
 notice in this way. Neither the president of one com- 
 pany or the vice-president of the other company was fn 
 possession of the stock, nor were they the agents of the 
 owner, nor was any possession overtaken of the property 
 by the marshal, unless such notice had the power of 
 transmitting the possession to him. To constitute a valid 
 seizure of property as a basis for a proceeding in rem,the 
 party previously in possession must be dispossessed and 
 unable any longer to exercise dominion over the property, 
 and such dominion must be transferred to the officer 
 making the seizure. No other seizure than this will sus- 
 tain proceedings in rem, according to the established doc- 
 trine in admiralty and revenue cases, unless a different 
 mode of seizure is specially prescribed by statute. No 
 other mode would conserve the principle of notice to the 
 party whose property was to be affected, which is essen- 
 tial to the validity of all judicial proceedings. "It is a 
 principle of natural justice of universal obligation," says 
 Chief Justice Marshall, " that before the rights of an in- 
 dividual be bound by judicial sentence, he shall have no- 
 tice, either actual or implied, of the proceedings against 
 him. Where these proceedings are against the person 
 notice is served personally or by publication ; where they 
 are in rem, notice is served upon the thing itself. This 
 is necessary notice to all those who have any interest in 
 the thing, and is reasonable because it is necessary and 
 because it is the part of common prudence for all those 
 who have any interest in it to guard that interest by per- 
 sons who are in a situation to protect it."* 
 
 The doctrine that notice to the owner is given by seiz- 
 ure of the thing, rests upon the presumption that the 
 
 *The Mary, 9th Cranch, 144. 
 
16 
 
 owners of property retain possession of it themselves, or 
 place it in the care and management of persons who will 
 represent them and communicate to them any proceed- 
 ings taken against their interest in relation to it. In this 
 case this doctrine is entirely disregarded. The notice 
 given to the president of one company and the vice-presi- 
 dnt of the other might, with equal propriety, have been 
 given to any other strangers to the owner. How the mar- 
 shal could get possession of a thing which he did not 
 touch nor handle nor control, by giving notice to two in- 
 dividuals in Detroit, themselves having no control or pos- 
 session of the property, passes my comprehension. Shares 
 or stock in companies can only be seized in virtue of statu- 
 tory provisions, which prescribe a mode of seizure equiva- 
 lent to actual taking of possession. ~No such provisions 
 existed in the law of Michigan, in which state the pro- 
 ceedings were had. The Attorney-General, in his in- 
 structions to the district attorney for carrying out the act, 
 directed that stocks should be seized according to the 
 methods prescribed by the state law. As no such methods 
 were prescribed by the law of Michigan, or especially 
 prescribed by the court, the case was one for which no 
 provision was made. 
 
 After the libel was filed there was no new attempt to 
 make any other seizure of the property than the one pre- 
 viously made. The process of the court directed the 
 marshal to hold the stock which he had seized, referring, 
 evidently, to the preliminary seizure. The marshal re- 
 turned that he had seized and held the property, refer- 
 ring, as I understand it, to such preliminary seizure. 
 
 But further, the Act of Congress declares that the pro- 
 ceedings for the condemnation of the property seized 
 shall conform, as nearly as may be, to proceedings in 
 admiralty or revenue cases. Here the proceedings are 
 against property on land, and they must, therefore, con- 
 form, as nearly as possible, to proceedings in revenue 
 cases. Now, the act of 1799 prescribes the proceedings 
 
17 
 
 in revenue cases, and provides th$t after default "the 
 court shall proceed to hear and determine the cause ac- 
 cording to law."* And, in the case of The United States 
 vs. The Schooner Lion,f Mr. Justice Sprague, whose 
 great learning justly adds weight to his opinions, gave a 
 construction to this clause. A default had been prop- 
 erly entered, and it was contended by the district attor- 
 ney that condemnation followed of necessity, upon de- 
 fault, without a hearing, but the learned judge, citing 
 the clause mentioned, said: "This makes it imperative 
 that there shall be some hearing before a decree of for- 
 feiture, but to what extent must depend upon the cir- 
 cumstances of the case. The court will at least examine 
 the allegations of the libel to see if they are sufficient in 
 law, and the return of the marshal and such affidavit or 
 affidavits as the district attorney shall submit. Where 
 it appears that the owners have had full notice of the 
 proceedings, and ample opportunity to intervene, and 
 have voluntarily declined to do so, slight additional evi- 
 dence will be sufficient. Indeed, a willful omission by 
 the owners to answer and thereby make disclosure as to 
 material facts within their knowledge, might, of itself, 
 satisfy the court that a forfeiture should be decreed. But 
 the court will require the prosecutor to introduce full proof of 
 the allegations in the libel whenever the circumstances shall 
 make it reasonable." It will hardly be pretended that the 
 circumstances in this case did not render it reasonable 
 that such full proof should be had, and yet no such proof 
 was had. The only proof offered was of a doubtful ad- 
 mission of the claimant, and consisted of the ex-parte 
 deposition of .a single witness to a conversation which he 
 alleged he had had with the claimant in 1863 in Virginia. { 
 
 *lst Stat. at Large, p. 695, sec. 89. 
 
 fist Sprague's Decisions, p. 400. 
 
 JOn the 31st of July, 1789, Congress passed an act entitled "An act to 
 regulate the collection of the duties imposed by law on the tonnage of ships 
 or vessels, and on goods, wares, and merchandise imported into the United 
 States." (Stats, at Large, vol. 1, ch. 5, p. 29.) 
 
 The 36th section of this act, (p. 47,) after directing that all ships or vessels, 
 
 0* 
 
18 
 
 But this is not all.^ The act of Congress of 1862 fur- 
 ther provides, in prescribing the proceedings to be taken, 
 that "if" the property seized "shall be found to have be- 
 longed to a person engaged in rebellion, or who has 
 given aid or comfort thereto, the same shall be con- 
 demned." Evidently some finding of the court is here 
 contemplated upon presentation of proofs, and, it appears 
 to me, was intended as authority for the subsequent de- 
 cree, as much so as the verdict of a jury is authority for 
 the subsequent judgment, and that without such finding 
 the decree cannot stand. The record discloses that no 
 such finding was made, and that no decree even was 
 entered, as required by the 29th Admiralty Rule, that 
 
 goods, wares, and merchandise, which might become forfeited by virtue of the 
 act, should be seized and libelled and prosecuted in the proper court, and no- 
 tice of the seizure given by publication and posting and proclamation, declares 
 that, "if no person shall Appear to claim such ship or vessel, goods, wares, 
 or merchandise, the same shall be adjudged to be forfeited; but if any person shall 
 appear before such judgment of forfeiture, and claim any such ship or vessel, 
 goods, wares, or merchandise, and shall give bond to defend the prosecution 
 thereof, and to respond the cost in case he shall not support his claim, the 
 court shall proceed to hear and determine the case according to law,' 1 &c. 
 
 On the 4th of August, 1790, the above act was repealed, and another act was 
 substituted in its stead, but the 36th section of the first act was inserted in the 
 new act as section 67. (Stats, at Large, vol. 1, ch. 35, p. 145, sec. 74.) 
 
 But on the 2d March, 1799, the present collection act, entitled "An act to 
 regulate the collection of duties on imports and tonnage" was passed. (Stats. 
 at Large, vol. 1, ch. 22, p. 627, 696.) The 89th section of this act corres- 
 ponds with the 36th section of the act of 1789, and the 67th section of the act 
 of 1790, with this remarkable exception. Admonished, perhaps, by some case 
 of striking hardship or injustice, of the danger of condemning without proof, 
 and on bare presumptions, the property of parties who may never have heard 
 of its seizure, Congress struck out the clause above quoted, which declared 
 that if no claimant appeared the property seized ' 'should be adjudged to be 
 forfeited," and in lieu thereof inserted the following: "And if no person 
 shall appear and claim any such ship or vessel, goods, wares, or merchandise, 
 and give bond to defend the prosecution thereof, and to respond the cost in 
 case he shall not support his claim, the court shall proceed to hear and deter- 
 mine the case according to law;" 1 " 1 thus doing away with the distinction pre- 
 viously made between revenue seizures in which claimants appeared and those 
 in which they did not appear, and directing that in both cases the court 
 should proceed "to hear and determine the cause according to law." 
 
19 
 
 the libel be taken pro confesso so as to justify the as- 
 sumption that its allegations were true. 
 
 As the act is highly penal in its nature, it would seem 
 that, according to well-received rules, it should be strictly 
 construed, and a rigid compliance with its provisions ex- 
 acted. But the very opposite course in the construction 
 of the act appears to have been adopted by the majority 
 of the court. 
 
 I am of opinion that the judgment of the court below 
 should be reversed. I am authorized to say that Mr. 
 Justice CLIFFORD concurs with rne in this opinion. 
 
Supreme Court of the United States, 
 
 Henry B. Tyler, Plaintiff in Error, ^ From the Supreme 
 
 vs. V Court of the Dis- 
 
 John D. Defrees. ) trict of Columbia. 
 
 Mr. Justice FIELD dissenting.* 
 
 I am compelled to dissent from the judgment of the 
 court in this case. 
 
 I agree with the majority that as the decree of confis- 
 cation, under which the defendant asserts title to the de- 
 manded premises, comes before us collaterally, it cannot 
 be attacked for mere errors or irregularities committed in 
 the progress of the cause in which it was rendered. It 
 can be only attacked for defects which go to the jurisdic- 
 tion of the court, either over the subject-matter or the 
 parties, or to render the particular decree. It is not 
 strictly correct to say that, if the jurisdiction over the 
 subject-matter and the parties exists in a particular case, 
 any defect in the decree rendered can only be taken ad- 
 vantage of on appeal or by direct proceedings. That ju- 
 risdiction may exist and yet the decree may be so variant 
 from that which the court was authorized to pronounce 
 as to be void on its face. If the law, for example, au- 
 thorize a pecuniary fine, the court cannot award imprison- 
 ment. If the law directs only damages to be assessed, 
 the court cannot decree a specific performance. If the 
 law declares that only a life estate shall be confiscated, 
 the court cannot disregard its limitation and condemn the 
 fee. The judgments in such cases would be void in 
 whole or part, notwithstanding complete jurisdiction was 
 
 *Delivered at the December Term, 1870, and reported in llth Wallace's 
 Supreme Court Reports, 350. 
 
 20 
 
21 
 
 had over the subject and the parties in controversy. 
 There are certain limitations to the action of courts even 
 after they have acquired jurisdiction which they cannot 
 transcend without opening their judgments to collateral 
 attack. In other words, jurisdiction over the subject- 
 matter and parties does not authorize a judgment in the 
 case of any and every kind. 
 
 All reasonable presumptions are indulged in support 
 of judgments when collaterally attacked. So large are 
 these presumptions that they generally answer as an ex- 
 planation for the absence of all matters in the record, 
 which are required to be taken before the judgment can 
 be lawfully entered. As the presumptions are indulged 
 to supply the absence of averments of the particular facts 
 presumed, they cease to be received when the contrary 
 of the particular supposed facts appears. Thus when a 
 record of a judgment, rendered in an action at law upon 
 an issue joined between the parties, is produced, in which 
 no verdict of a jury or finding of the court appears, upon 
 the existence of which alone the judgment could be en- 
 tered, it will be presumed that such verdict or finding 
 was had. But, on the other hand, if it affirmatively ap- 
 pear in the record that no such proceeding was had, the 
 judgment may be attacked as having been rendered with- 
 out authority. It is of no avail, then, to invoke the doc- 
 trine that a judgment cannot be collaterally assailed. 
 The doctrine does not apply to a case of this kind, for 
 the record itself establishes the invalidity of the judg- 
 ment produced. 
 
 The objections which I make to the decree, upon which 
 the defendant asserts title, go to the jurisdiction of the 
 court over the property condemned, to its jurisdiction to 
 enter the decree rendered, and to the validity of the act 
 of July 17th, 1862. Similar objections were taken by me 
 in a dissenting opinion to the decree in the case of Miller 
 vs. The United States, recently decided, but the import- 
 ance I attach to them justifies their further elucidation. 
 
22 
 
 First ; as to the jurisdiction of the court over, the prop- 
 erty. The executive seizure of the property required by 
 the act of Congress is preliminary to the commencement 
 of judicial proceedings for its forfeiture. "After the 
 same shall have been seized," says the statute, proceed- 
 ings shall be instituted. Now, when the executive seizure 
 in this case was made, what was the condition of the 
 property before judicial proceedings were taken ? "Was 
 it in the custody of the court? Clearly not. As yet the 
 court had nothing to do with it no more than, before 
 suit, it has to do with a vessel seized by the collector for 
 a violation of the revenue laws, or brought into port by a 
 prize crew for an attempted breach of blockade. The fact 
 that the marshal was employed as the agent of the Presi- 
 dent in making the seizure, did not change the position 
 of the property. The President might have selected any 
 other person as his agent with the same result. He might, 
 at this stage, have released the property from seizure 
 upon his own volition, without interfering with the au- 
 thority of, or coming in collision with the court. As 
 yet no relations were established between the court and 
 the property seized. Whatever the marshal, in making 
 the preliminary seizure, may have said to the occupants 
 of the premises seized, or whatever notice he may have 
 given to them, whether it was that he held the property 
 subject to the directions of the President, or to the order 
 of the district court or district attorney, in no wise affected 
 the condition of the property, or created any relation be- 
 tween it and the court. The existence of any such re- 
 lation did not depend upon the declaration of that of- 
 ficer, who, as yet, was- not acting under any judicial pro- 
 cess. 
 
 The next proceeding was the filing of the libel of in- 
 formation ; but that did not change the relation between 
 the court and the property. The libel was the foundation 
 for the issue of the process of the court to bring the 
 property within its custody ; but, of itself, without such 
 
23 
 
 process, it worked no change in the condition of things. 
 When was it ever pretended that the mere tiling of a 
 libel, without the issue of process, brought person or 
 thing into the custody of the court? When the libel 
 was filed process was ordered, and process was issued 
 commanding the marshal to attach the property and de- 
 tain the same in his custody. By attachment under this 
 judicial process, had it been made, the court would have 
 acquired jurisdiction over the property, for it is by seiz- 
 ure under judicial process, and that alone, that the court 
 takes the res into its custody. But the process thus 
 issued was never served, and the jurisdiction of the court 
 over the property rested upon the preliminary seizure 
 alone. And yet we are told by the majority of the court 
 that the objection that this preliminary seizure was in- 
 sufficient to give the requisite jurisdiction, and that a 
 new seizure, under judicial process, was necessary, is a 
 very narrow and unsubstantial objection. I answer that 
 no objection is narrow or unsubstantial which goes to 
 the jurisdiction of thp court to forfeit the property of a 
 citizen upon ex-parte proceedings, without a hearing, for 
 alleged public offences of which he is assumed to be 
 guilty, because he did not appear to a citation, which the 
 law prohibited from being communicated to him. This 
 court has repeatedly dismissed writs of error because 
 tested by a wrong officer, or made returnable on a day 
 other than the first day of the term, or because they did 
 not embrace all the parties to the record ; and when it 
 ' has been urged that the objections taken to them were 
 extremely narrow and unsubstantial, the answer has been 
 that nothing could be treated as narrow or unsubstantial, 
 and for that reason disregarded, which was prescribed by 
 law as tli mode of exercising the appellate jurisdiction 
 of the court. So, here nothing can justly be considered 
 as either narrow or unsubstantial which is required by 
 law to give jurisdiction to a court to enforce penal stat- 
 utes, in the absence of the alleged offenders against their 
 provisions. 
 
24 
 
 Second ; as to the jurisdiction of the court to render 
 the decree in the confiscation case. The act of Congress, 
 as already stated, is highly penal in its consequences, and 
 by all established canons of interpretation should be 
 strictly construed.* Its every requirement should be 
 rigidly exacted. What then are its requirements? It 
 declares that the proceedings instituted for the condemna- 
 tion of the property seized shall conform as nearly as 
 may be to proceedings in admiralty or revenue cases, 
 and if the property shall be found to have belonged to a 
 person engaged in the rebellion, or who has given aid and 
 comfort thereto, the same shall be condemned. 
 
 As the proceedings in the case upon which the defen- 
 dant relies related to land, they should have conformed, 
 according to those provisions, as nearly as practicable to 
 proceedings in revenue cases. Now the statute of 1799 
 prescribes the proceedings in these cases, and declares 
 that after default is made in one of them, "the court 
 shall proceed to hear and determine the cause according 
 to law," a clause which has been judicially held, and in 
 my opinion correctly held, to make it imperative upon 
 the court that there shall be some hearing before a decree 
 of forfeiture is rendered, and " the court will require," 
 says Mr. Justice Sprague, in such cases " the prosecutor 
 to introduce full proof of the allegations in the libel 
 whenever the circumstances shall make it reasonable/'f 
 
 If we consider the provision of the law of 1799 and 
 the provision of the act of 1862 for a finding, it seems im- 
 possible to escape the conclusion that a finding upon 
 hearing is an essential prerequisite to any decree of for- 
 feiture in these confiscation cases. The authority to 
 render the decree is in express terms made conditional 
 upon a particular fact being found. If the fact, designa- 
 ted be found, says the statute, the property shall be con- 
 demned, which is equivalent to declaring that if such 
 
 * 1st Kent's Corara., 376. 
 
 fll. S. vs. Schooner Lion, 1 Sprague's Decisions, 400. 
 
25 
 
 fact be not found no condemnation shall be decreed. As 
 tbe record produced in the case, upon which the defen- 
 dant relies, shows that no hearing was had and no find- 
 ing was made, the decree of forfeiture rendered therein 
 appears to me to be an act of judicial usurpation. 
 
 Third; as to the validity of the clauses of the act of 
 1862, providing for the seizure and confiscation of the 
 property of rebels. This point I have already consid- 
 ered at length in the dissenting opinion in Miller vs. 
 United States, and I shall only add a few words. In 
 that dissenting opinion I expressly stated that it had 
 been held that, when the late rebellion assumed the pro- 
 portions of a territorial civil war, the inhabitants of the 
 Confederate States and the inhabitants of the loyal states 
 became reciprocally enemies to each other, and that the 
 inhabitants of the Confederate States engaged in the re- 
 bellion, or giving aid and comfort thereto, were at the 
 same time amenable to the municipal law as rebels, and 
 that the correctness of this determination was not dis- 
 puted ; that the question was, not as to the right of Con- 
 gress to adopt either of these courses, but what course 
 had Congress, by its legislation, authorized. It is indis- 
 putable that whatever Congress may authorize to be 
 done, by the law of nations, in the prosecution of war 
 against an independent nation, it may authorize to be 
 done when engaged in the prosecution of a territorial civil 
 war against the domestic enemies of the United States. I 
 contend only that the limitations, which the law of na- 
 tions has imposed in the conduct of war between inde- 
 pendent nations, should apply and govern the United 
 States in whatever war they may prosecute. I do not 
 doubt, and never have doubted for a moment, that the 
 United States possess all the power necessary to suppress 
 all insurrections, however formidable, and to make their 
 authority respected and obeyed throughout the limits 
 of the republic. But this recognition of the power 
 of the government cannot be permitted to preclude 
 
26 
 
 a comparison of all legislation, adopted to uphold 
 its authority, with the Constitution. And in so compar- 
 ing the act of July 17th, 1862, I am unable to find in 
 that great instrument any sanction for the clauses in the 
 act providing for the seizure and confiscation of the 
 property of persons charged with particular criminal 
 acts. I do not find it in the war powers of the govern- 
 ment, for they sanction only the confiscation of the prop- 
 erty of public enemies. I do not find it in the munici- 
 pal power of the government to legislate for the punish- 
 ment of crimes, for that is subject to limitations, which 
 secure to the accused a trial by a jury of his peers, and 
 the right to be confronted with the witnesses against 
 him. 
 
 It is true, as already stated, that enemies participating 
 in the rebellion, or giving aid and comfort thereto, might 
 have been treated as rebels and held amenable to the 
 municipal law. Yet the terms, enemies and rebels, are 
 not synonymous, even though the rebellion attained the 
 proportions of a territorial civil war. A permanent res- 
 ident of the Confederacy was an enemy, although he 
 may always have opposed the rebellion and remained 
 loyal in his feeling and action to the national govern- 
 ment. His position as an enemy was determined by his 
 residence, and had nothing to do with his personal dis- 
 position or conduct. But he was not a rebel, and could 
 not have been prosecuted as such unless he was person- 
 ally guilty of treasonable acts. 
 
 Congress well understood the distinction between ene- 
 mies and rebels, and we are not justified in supposing 
 that it intended to disregard this distinction in its legis- 
 lation, even were that practicable, as it was not. 
 
 My conclusion is that the judgment of the court below 
 was erroneous and should be reversed. I am authorized 
 to say that Mr. Justice CLIFFORD concurs with me in this 
 opinion. 
 
ILLEGALITY 
 
 OF THB 
 
 ARREST AND IMPRISONMENT 
 
 BY 
 
 PROVOST MARSHALS 
 
 DURING THE LATE REBELLION, OF 
 
 CITIZENS NOT IN THE MILITAEY SERVICE, 
 
 IN STATES WHERE THE COURTS WERE OPEN 
 
 AND IN THE 
 
 UNDISTURBED EXERCISE OF THEIR JURISDICTION. 
 
ILLEGALITY OP THE ARREST AND IMPRISONMENT BY PROVOST 
 MARSHALS, DURING THE LATE REBELLION, OF CITIZENS 
 NOT IN THE MILITARY SERVICE, IN STATES WHERE 
 THE COURTS WERE OPEN AND IN THE UNDIS- 
 TURBED EXERCISE OF THEIR JURISDICTION. 
 
 THE DISSENTING OPINION 
 
 MR. JUSTICE FIELD, 
 
 OF U. S. SUPREME COURT, 
 
 IN 
 
 THE VERMONT PROVOST MARSHAL CASE, 
 
 DECIDED JANUARY, 1879. 
 
STJPKEME COUKT OF THE UNITED STATES. 
 
 THE VERMONT PROVOST MARSHAL CASE." 
 
 Daniel A. Beckwith and Gilman Henry, 
 Plaintiffs in Error, 
 
 vs. 
 
 Error to the Circuit 
 Court of the United 
 States for the Dis- 
 
 Andrew J. Bear trict of Vermont. 
 
 DISSENTING OPINION OF MR. JUSTICE FIELD. 
 
 I am unable to concur in the judgment of the Court in this 
 case, and I will state the reasons for my dissent. The action 
 is for an assault and battery upon the plaintiff, and his im- 
 prisonment in the State prison of Yermont for more than six 
 months, without process of law, and under circumstances of 
 great cruelty and oppression. The plaintiff is a citizen of 
 the United States, though in 1864, when the grievances com- 
 plained of were committed, he was temporarily a resident of 
 Canada. 
 
 It appears from the uncontradicted evidence in the record, 
 that on the llth of November, 1864, whilst returning from a 
 trip to Boston to his home in the province of Quebec, he 
 was arrested in a passenger car near Wells River, in the 
 State of Vermont, by the defendant Beckwith, without any 
 warrant or process of law, and taken to Beckwith's residence 
 in Sutton in that State; that he was there detained during 
 the night under the charge of keepers; that his father, who 
 lived at the distance of about fifteen miles, and for whom he 
 had sent, arrived during the night, but that Beckwith refused 
 to allow them to have an interview, except in his presence; 
 
that on the following day he was forcibly taken, by order of 
 the defendant Henry, and placed in the State prison at 
 Windsor, where he remained until the 26th of April, 1865, a 
 period of nearly six months, when he was admitted to bail 
 and released from imprisonment; that during this period he 
 was locked up at night, and for the first few days in the day- 
 time also, in a narrow and scantily furnished cell, being one 
 in which convicts were confined at night; that after the first 
 few days he was allowed, upon his complaint of the coldness 
 of the cell, to spend the day in the shops where the convicts 
 worked, but he was required to go out and to return when 
 they did, and at no time to be out of sight of a keeper, and 
 not to go on the corridors or in the yard for exercise ; that the 
 food offered to him was the fare served to the convicts, which 
 he could not eat, and that afterward he obtained his meals 
 from the keeper's table by paying a small sum each week; 
 and that during this period no complaint against him was 
 filed with any magistrate; he was hold simply upon the order 
 of the defendants. 
 
 And what is the excuse offered for this imprisonment and 
 treatment; for justification there could be none in a coun- 
 try where there were constitutional guaranties against the 
 invasion of personal liberty such as are found in the con- 
 stitution of Vermont, and in the Constitution of the United 
 States ? What is the excuse ? Simply this : that the defend- 
 ants, one of whom was Provost Marshal, and the other As- 
 sistant Provost Marshal, of a military district embracing 
 Vermont, suspected that the plaintiff had aided or been privy 
 to the desertion from the army of two substitutes, who had 
 been furnished upon a contract with one Stevens, and for 
 whom Stevens had paid $1,200, of which sum $800 had been 
 received by the plaintiff and two others. Suspecting the 
 plaintiff, as stated, the defendants determined to hold him in 
 the State prison until they should coerce him to the payment 
 not merely of what he had received, but of what his sup- 
 posed confederates had received also. The defendants 
 claimed that they were acting all this time in the service of 
 the United States but surely this was a mere pretence, for 
 
their duties as enlisting officers did not require them to com- 
 pel the return of money, of which a substitute broker had 
 been defrauded, and in which the United States had no inter- 
 est, and could not have retained had these officers succeeded 
 in coercing its payment. 
 
 After the plaintiff had been in the State prison for a few 
 days, the defendant Henry called upon him, and verbally in- 
 formed him, that he was charged with aiding or being privy 
 to the desertion of the substitutes, but that he would be dis- 
 charged on payment of the $800, and $25 additional for ex- 
 penses. The plaintiff protested that he was innocent of the 
 charge and demanded a trial. He was told in reply by Hen- 
 ry, (whose words 1 quote,) that "he could not have a trial, 
 and could not get one," but that his case would be reported 
 to the Assistant General Provost Marshal. He then requested 
 Henry to make an immediate report, which he promised to 
 do. Later in the day, being in great distress of mind and 
 anxious to return to his family, and thinking that perhaps 
 the money might be paid under protest, he telegraphed to 
 his father to bring him the $800, and requested Henry to 
 withhold the report until his father arrived. On the next 
 day but one his father arrived, and in an interview with 
 Henry, told him that neither he nor the plainiiff would pay 
 a dollar, and requested him to report the case at once. The 
 record then reads thus, (I copy the words): " From that 
 time plaintiff constantly urged that his case should be re- 
 ported, or that a trial should be given him, or that he be ad- 
 mitted to bail, and protested his innocence; and Henry re- 
 peatedly promised to report the case, but frequently told 
 him and his father he could not get a trial, nor be admitted 
 to bail, and that he would be discharged at any time on pay- 
 ment of the $825." 
 
 On the 20th of November following Henry reported to his 
 superior officers the arrest of the plaintiff, and the reasons 
 for it, stating that he was held for the return of the $800; 
 and in December Henry informed the plaintiff, in writing, of 
 the charges against him, claiming that he should pay the $800 
 for the use of the government, with the expenses of his ar- 
 
6 
 
 rest. All the communications between the different officers 
 of the military district, with reference to the plaintiff, show 
 that he was held upon the charge of aiding, or of being privy 
 to, the desertion of the substitutes, without any intention to 
 bring him to trial for the offence; but to coerce, by his im- 
 prisonment, the repayment of the money which he, with two 
 others, had received from the substitute broker. In one of 
 his letters to the assistant Provost Marshal, Henry stated, 
 with reference to turning the case over to the District Attor- 
 ney, that he did not think that the plaintiff could be convicted 
 under any section of the enrollment act, from any testimony 
 which he then possessed, but that he had heard of addi- 
 tional facts which might perhaps be sufficient for that pur- 
 pose. No such additional facts, however, were obtained. 
 
 The record also shows that the plaintiff, throughout his 
 imprisonment, made constant efforts, in various ways, to ob- 
 tain a trial or release on bail, which he was able and willing 
 to furnish ; and that eleven journeys were made by his father 
 from the northern part of Vermont to Windsor and Brattle- 
 borough for that purpose. Among other efforts, the plaintiff 
 appealed by letter to General Dix, the commander of the de- 
 partment, to order him to be brought to trial, and to give 
 him an opportunity to prove his innocence. But no trial 
 was allowed him that right which belongs, or ought to be- 
 long, to every one, even the humblest in the land, was 
 denied to him, a born citizen of the United States ; and not 
 until after the intercession, at Washington, of a member of 
 Congress from Vermont in his behalf, were any steps taken 
 for his release. His father and he had pleaded in vain to 
 the defendant Henry, urging, among other things, that his 
 wife, who needed his support, was about to be confined. At 
 last, on the 26th of April, 1865, he was taken before a Jus- 
 tice of the Peace and discharged on bail. 
 
 To add to the enormity- of this case, the District Attorney 
 of the United States for Vermont states in his testimony 
 that there were many other cases in his district, during the 
 war, of persons charged with inciting or assisting soldiers to 
 desert, and that they were all turned over to him to be prose- 
 
cuted, and that they were prosecuted by him, in the civil 
 courts ; but that he knew nothing of this case until April, 
 1865, and that soon afterward the plaintiff was released on 
 bail. The Grand Jury of the United States Court found no 
 cause for prosecution, though the defendant Henry told his 
 story to them. 
 
 Whilst these things were being done in Yermont, and the 
 plaintiff was, by the action of the defendants, lying in the 
 State prison as absolutely helpless as though he had been 
 immured in the dungeon of an Asiatic despot, there was no 
 rebellion in that State against the laws and government of 
 the United States ; there were no military operations carried 
 on within its limits ; there was no army there. The courts 
 of justice, both Federal and State, were open, and in the 
 full exercise of their jurisdiction ; and the plaintiff was not 
 in the military service or in any way connected with such 
 service, and for the offence of which he was suspected, or for 
 any other offence, could have been brought before them on 
 any day of the year. By his imprisonment, and the report 
 that he was in the State prison, his business was ruined, his 
 personal property and furniture were seized by creditors and 
 sacrificed at Sheriff's sale, and his wife was compelled to 
 leave his home and return to her friends in Vermont.* 
 
 On the trial of the action, the defendants relied for their 
 defence upon the fourth section of the act of Congress of 
 March 3, 1863, "relating to habeas corpus, and regulating 
 judicial proceedings in certain casesf; and upon the act of 
 March 2, 1867, to declare valid and conclusive certain procla- 
 mations of the President, and acts done in pursuance thereof, 
 or of his orders in the suppression of the late rebellion ; 
 contending that under them the defendants were to be pre- 
 sumed to have acted by the orders of the President, and 
 
 *As the statement contained in the opinion of the majority dees not give 
 any detailed account of the " circumstances of humiliation and severity" 
 mentioned, to which the plaintiff was subjected, an extract from the record 
 showing them is annexed to this opinion. No adequate statement of the 
 case can be made which does not substantially embody the entire bill of ex- 
 ceptions. 
 
 t!2 Stats., 756. 
 
8 
 
 were thereby released from responsibility to the plaintiff.* 
 And if they were not thus released from responsibility, then 
 they sought to give in evidence in mitigation of damages the 
 testimony of certain parties, which was discovered long after 
 the arrest and imprisonment of the plaintiff, tending to es- 
 tablish facts, which, if known at that time, would have 
 justified, to some extent, their suspicions as to his complicity 
 in the escape of the substitutes. The court below held that 
 the defendants were not released from responsibility under 
 those acts ; and that evidence of the possible guilt of the 
 plaintiff, discovered after the commission of the grievances 
 complained of, was inadmissible in mitigation of damages. 
 Its ruling upon both of these positions is assigned as error 
 by the Attorney General ; but it is upon its ruling on the 
 first that he chiefly relies for a reversal of the judgment. It 
 is against that ruling that his argument is mainly directed. 
 This Court holds that the testimony offered should have been 
 received ; and it overrules the exception to the refusal of the 
 court below to instruct the jury that the defendants were 
 to be presumed to have acted under the orders of the Presi- 
 dent, and that the statutes in question constituted a full and 
 complete justification for the acts complained of not on 
 the ground that the statutes were invalid or that the orders, 
 if issued, would have afforded no justification to the de- 
 fendants, but on the ground that there was evidence for the 
 consideration of the jury whether the defendants had not by 
 fraudulent representations induced their superior officers to 
 continue the imprisonment of the plaintiff ' ' longer than nec- 
 essary," and prevented him from having a speedy trial in the 
 proper court for the offence charged, f 
 
 In considering this case. I shall endeavor to show that the 
 
 *14 Stats., 432. 
 
 tThe charge to the jury which the Court was requested by the defendants 
 to give was that the facts which their evidence tended to establish, if believed, 
 " constituted under the flforesaid acts of Congress a full and complete justi- 
 fication for each and both the defendanis for the acts complained of. And in 
 the absence of all evidence to prove whether the President issued any order, 
 general or special, for the arrest and detention of the plaintiff, the jury were 
 not only at liberty, but were bound to presume, that he did ; that such was 
 the presumption of law, under the act of March 2d, 1857, and that such pre- 
 sumption must prevail in this case, as there is no evidence to rebut it." 
 
9 
 
 court below ruled correctly, as well where its ruling is pro- 
 nounced erroneous as in refusing to give to the jury the 
 instructions requested ; and that its refusal in that respect 
 should be sustained on the ground that neither the statutes 
 mentioned nor any orders of the President under them could 
 constitute any justification for the arrest and imprisonment 
 of the plaintiff. And I shall examine the propositions of 
 law presented by the rulings in the order in which they were 
 discussed by the Attorney General. 
 
 The act of 1863 provided that " any order of the President, 
 or under his authority, " made during the rebellion, should 
 ' * be a defence in all courts to any action or prosecution " for 
 any search, seizure, arrest, or imprisonment under and by 
 virtue of such order, or under color of any law of Congress. 
 
 By the act of 1867, all acts, proclamations, and orders of the 
 President, or acts done by his authority or approval, after 
 March 4th, 1861, and before July 1st, 1866, respecting martial 
 law, military trials by courts-martial, or military commissions, 
 or the arrest, imprisonment and trial of persons charged 
 with participation in the rebellion, or as aiders or abettors 
 thereof, or as guilty of any disloyal practices in its aid, or of 
 any violation of the laws or usages of war, or of affording aid 
 and comfort to rebels; and all proceedings and acts of courts- 
 martial or military commissions, or arrests and imprison- 
 ments in the premises by the authority of the orders or proc- 
 lamations, or in aid thereof, are approved, legalized, and de- 
 clared valid, to the same extent and with the same effect as 
 if the orders and proclamations had been issued, and the 
 arrests, imprisonments, proceedings, and acts had taken 
 place under the previous express authority and direction of 
 Congress. The act also declares that no person shall be 
 held to answer in any civil court "for any act done or 
 omitted to be done in pursuance or in aid of any of said 
 proclamations or orders, or by authority, or with the ap- 
 proval of the President, " within the period and respecting 
 any of the matters mentioned; and that "all officers and 
 other persons in the service of the United States, or who 
 acted in aid thereof, acting in the premises, shall be held 
 prima facie to have been authorized by the President. 
 
10 
 
 These statutes, as is apparent on their face, extend only to 
 acts done in compliance with express orders or proclama- 
 tions of the President. They do not cover acts done by 
 personsupon their own will and discretion, who may have 
 been afcxthe time in the service of the government, simply 
 because they were under the general direction of the Presi- 
 dent as commander-in-chief. They were not intended to 
 protect against judicial inquiry and redress every act of a 
 subordinate in the military service in suppressing or punish- 
 ing what he may have regarded as a disloyal practice, no 
 matter how flagrant the outrage he may have thus committed 
 against life, liberty, or property. Such was the purport of 
 the decision of this Court when this case was here before.* 
 
 It is not pretended that any proof was produced that the 
 arrest and imprisonment of the plaintiff were made under any 
 express order or proclamation of the President; but it is con- 
 tended by the Attorney General, that under the last clause 
 of the act of 1867 it is to be presumed that their action was 
 authorized by the President, and that they are thus relieved 
 from accountability for it. 
 
 The Court below held, that assuming the construction 
 placed by the Attorney General upon the statute to be cor- 
 rect, aid that from the commission of the* act the presump- 
 tion arose that it was authorized by the President the act 
 thus presumptively establishing its own validity the pre- 
 sumption in this case was repelled, inasmuch as it appeared 
 in evidence by whose direction the orders were issued under 
 which the plaintiff was arrested and imprisoned. It appeared 
 that they never originated with or had the sanction of the 
 President. 
 
 If, however, the Court below erred in this respect, there is 
 another and a conclusive answer to the defence one which 
 renders futile and abortive all attempts to justify the action 
 of the defendants under any presumed orders of the Presi- 
 dent and that is, that it was not within the competency of the 
 President or of Congress to authorize or approve the acts 
 here complained of, so as to shield the perpetrators from 
 
11 
 
 responsibility. It is to be borne in mind, as already stated, 
 that the plaintiff was not in the military service of the 
 United States; that his arrest and imprisonment were in 
 Vermont, far distant from the sphere of military operations; 
 that there the courts of the United States and of the State 
 were open and in the full exercise of their jurisdiction, and 
 that the plaintiff could have been brought before them for 
 any offence known to the laws; and that there, if anywhere in 
 the United States, the provisions of the Constitution for the 
 security of one's person from unlawful arrest and imprison- 
 ment were not superseded. 
 
 Persons engaged in the military service of the United 
 States are, of course, subject to what is termed military law; 
 that is, to those rules and regulations which Congress has 
 provided for the government of the army and the punishment 
 of offences in it. Congress posesses authority under *the 
 Constitution to prescribe the tribunals, as well as the manner 
 in which offenders against the discipline of the army 
 and the laws for the protection of its men and officers 
 shall be summarily tried and punished; and to the jurisdic- 
 tion thus created, all persons in the military service are amen- 
 able. But that jurisdiction does not extend to per- 
 sons not in the military service, who are citizens of 
 States where the civil courts are open. 
 
 It may be true, also, that on the actual theatre of military 
 operations, what is termed martial law, but which would be 
 better called martial rule, for it is little else than the will of 
 the commanding general, applies to all persons, whether in 
 the military service or civilians. It may be true that no one, 
 whatever his station or occupation, can there interfere with 
 or obstruct any of the measures deemed essential for the 
 success of the army, without subjecting himself to immediate 
 arrest and summary punishment. The ordinary laws of the 
 land are there superseded by the laws of war. The jurisdic- 
 tion of the civil magistrate is there suspended, and military 
 authority and force are substituted. The success of 
 the army is the controlling consideration, and to that every- 
 thing else is required to bend. To secure that success, per- 
 
12 
 
 sons may be arrested and confined, and property taken and 
 used or destroyed at the command of the general, he being 
 responsible only to his superiors for an abuse of his author- 
 ity. His orders, from the very necessity of the case, there 
 constitute legal justification for any action of his officers and 
 men. This martial rule in other words, this will of the 
 commanding general, except in the country of the enemy oc- 
 cupied and dominated by the army is limited to the field of 
 military operations. In a country not hostile, at a distance 
 from the movements of the army, where they cannot be im- 
 mediately and directly interferred with, and the courts are 
 open, it has no existence. 
 
 The doctrine sometimes advanced by men, with more zeal 
 than wisdom, that whenever war exists in one part of the 
 country, the constitutional guaranties of personal liberty, and 
 of the rights of property, are suspended everywhere, has no 
 foundation in the principles of the common law, the teach- 
 ings of our ancestors, or the language of the Constitution, 
 and is at variance with every just notion of a free govern- 
 ment. Our system of civil polity is not such a rickety and 
 ill-jointed structure, that when one part is disturbed the whole 
 is thrown into confusion and jostled to its foundation. The fact 
 that rebellion existed in one portion of the country could not 
 have the effect of superseding or suspending the laws and Con- 
 stitution in a loyal portion widely separated from it. The war in 
 the Southern States did not disturb Yermont from her constitu- 
 tional propriety. She did not assent to the theory that war 
 and disturbance elsewhere could destroy the security given 
 by her laws and government. The same juridical institutions, 
 and the same constitutional guaranties for the protection of 
 the personal liberty of the citizen, with all the means for 
 their enforcement, remained there as completely as before; and 
 the Constitution and laws of the United States were as capa- 
 ble of enforcement in all their vigor in that State during the 
 war as at any time before or since. The arrest and impris- 
 onment of the plaintiff, even if made by direct order of the 
 President, were, therefore, in plain violation of the fifth 
 constitutional amendment, which declares that no person 
 
13 
 
 shall be deprived of his liberty without due process of law. 
 No mere order or proclamation of the President for the ar- 
 rest and imprisonment of a person not in the military service, in 
 a State removed from the scene of actual hostilities, where the 
 courts are open and in the unobstructed exercise of their juris- 
 diction, can constitute due process of law; nor can it be made 
 such by any act of Congress. Those terms, as is known to 
 every one, were originally used to express what was meant by 
 the terms ' ' the law of the land " in Magna Charta, and had 
 become synonymous with them. They were intended, as 
 said by this court, "to secure the individual from the arbi- 
 trary exercise of the powers of government, unrestrained by the 
 established principles of private right and distributive just- 
 tice."* They were designed to prevent the government 
 from depriving any individual of his rights except by due 
 course of legal proceedings, according to those rules and 
 principles established in our systems of jurisprudence for the 
 protection and enforcement of the rights of all persons. 
 
 " By the law of the land, said Mr. Webster, in his argu- 
 ment in the Dartmouth College case, " is most clearly in- 
 tended the general law; a law which hears before it con- 
 demns; which proceeds upon enquiry, and renders judgment 
 only after trial. The meaning is, that every citizen shall 
 hold his life, liberty, property, and immunities, under the 
 protection of the general rules which govern society." Those 
 words have been held in English law to have this potency 
 since the date of Magna Charta. 
 
 The clauses of that instrument which declare that no free- 
 man shall be taken or imprisoned, or be disseized of his free- 
 hold or liberties, or free customs, or be outlawed or exiled, 
 or any otherwise destroyed, or be passed upon, except by the 
 lawful judgment of his peers, or by the law of the land, and 
 that justice shall not be sold, nor denied, nor delayed, to any 
 man, are considered by English jurists and statesmen to be 
 sufficient to protect the personal liberty and property of 
 every freeman from arbitrary imprisonment and arbitrary 
 spoliation. 
 
 *Bank of Columbia vs. Okely, 4 Wheat., 235. 
 
14 
 
 " It is obvious," says Hallam, " that these words, interpre- 
 ted by any honest court of law, convey an ample security 
 for the two main rights of civil society. From the era, 
 therefore, of King John's charter, it must have been a clear 
 principle of our Constitution, that no man can be detained 
 in prison without trial."* And the same writer, in his Con- 
 stitutional History of England, mentions among the essen- 
 tial checks upon royal authority, established under Magna 
 Charta as part of her Constitution, that " no man could be 
 committed to prison, but by a legal warrant specifying his 
 offence " and that, ''the officers and servants of the Crown 
 violating the personal liberty or other right of the subject, 
 might be sued in an action for damages to be assessed by a 
 jury, or in some cases were liable to criminal process; nor 
 could they plead any warrant or command in their justifica- 
 tion, not even the direct order of the King"^ 
 
 " The glory of the English law," says Blackstone, " con- 
 sists in clearly defining the times, the causes, and the extent, 
 when, wherefore, and to what degree the imprisonment of 
 the subject may be lawful. This it is which induces the ab- 
 solute necessity of expressing upon every commitment the 
 reason for which it is made, that the courts upon a habeas 
 corpus, may examine into its validity, and, according to the 
 circumstances of the case, may discharge, admit to bail, or 
 remand the prisoner. "J 
 
 As stated by counsel, the last vestige of any claim on the 
 part of the government of England to the right of arrest, 
 except upon such process as was authorized by the general 
 law of the land, was overthrown in 1765, in the celebrated 
 contest concerning the legality of general warrants. The 
 arrests of parties by such warrants from the Secretary of 
 State was condemned by repeated judgments of the highest 
 courts of England as illegal and unconstitutional, and from 
 that day to this such warrants have never been issued. No 
 barrister or judge in England would now have the hardihood 
 to assert that such warrants are due process of law. 
 
 * 2 Hallam Middle Ages, chap. 8, part 2, p. 310. 
 t 1 Hallam's Cons. His., chap. 1, p. 3. 
 }3 Blackstone, 133. 
 
15 
 
 To me, therefore, it is a marvel, that in this country, under 
 a Constitution ordained by men who were conversant with 
 the principles of Magna Charta, and claimed them as their 
 birthright a Constitution which declares in its preamble 
 that it is established ' ' to secure the blessings of liberty to 
 ourselves . and posterity " it could ever be contended that 
 an order of the Executive, issued at his will, for the arrest 
 and imprisonment of a citizen, where the courts are open and 
 in the full exercise of their jurisdiction, is due process of 
 law, or could ever be made such by an act of Congress. I 
 certainly never supposed that such a proposition could be se- 
 riously asserted before the highest tribunal of the Bepublic 
 by its chief legal officer. I had supposed that we could 
 justly claim that in America, under our republican govern- 
 ment, the personal liberty of the citizen was greater and bet- 
 ter guarded than that of the subject in England. It is only 
 the extraordinary claim made by the counsel of the govern- 
 ment in this case which justifies any argument in support of 
 principles so fundamental and heretofore so universally rec- 
 ognized. It may be necessary at times with respect to them, 
 as it is necessary at times with respect to admitted principles 
 of morality, to re-state them in order to rescue them from 
 the forgetfulness caused by their universal admission. 
 
 The assertion that the power of the government to carry 
 on the war and suppress the rebellion, would have been crip- 
 pled and its efficiency impaired, if it could not have author- 
 ized the arrest of persons and their detention without exam- 
 ination or trial, on suspicion of their complicity with the 
 enemy, or of disloyal practices, rests upon no foundation 
 whatever, so far as Vermont was concerned. There was no 
 invasion or insurrection there, nor any disturbance which ob- 
 structed the regular administration of justice. A claim to 
 exemption from the restraints of the law is always made in 
 support of arbitrary power, whenever unforeseen exigencies 
 arise in the affairs of government. It is inconvenient ; it 
 causes delay ; it takes time to furnish to committing magis- 
 trates evidence which, in a country where personal liberty is 
 valued and guarded by constitutional guaranties, would 
 
16 
 
 justify the detention of the suspected ; and, therefore, in 
 such exigencies, say the advocates of the exercise of arbi- 
 trary power, the evidence should not be required. A doctrine 
 more dangerous than this to free institutions could not be 
 suggested by the wit of man. The proceedings required by 
 the general law for the arrest and detention of a party for a 
 public offence the charge under oath, the examination of 
 witnesses in the presence of the accused, with the privilege 
 of cross-examination, and of producing testimony in his 
 favor, creating the objectionable delays constitute the 
 shield and safeguard of the honest and loyal citizen. They 
 were designed not merely to insure punishment to the guilty, 
 but to insure protection to the innocent, and without them every 
 one would hold his liberty at the mercy of the government. 
 ' ' All the ancient, honest, juridicial principles and institu- 
 tions of England," says Burke and it is our glory that we 
 inherit them " are so many clogs to check and retard the 
 headlong course of violence and oppression. They were in- 
 vented for this one good purpose, that what was not just should 
 not be convenient."* Whoever, therefore, favors their sub- 
 version or suspension, except when in the presence of actual 
 invasion or insurrection the laws are silent, is consciously or 
 unconsciously an enemy to the Republic. 
 
 If neither the order of the President nor the act of Con- 
 gress could suspend in a State where war was not actually 
 waged, any of the guaranties of the Constitution intended for 
 the protection of the plaintiff from unlawful arrest and im- 
 prisonment, neither could they shield the defendants from 
 responsibility in disregarding them. Protection against the 
 deprivation of liberty and property would be defeated if 
 remedies for redress, where such deprivation was made, 
 could be denied. 
 
 I pass from this subject to the second position of the de- 
 fendants, thdt if they were not justified by the acts of Con- 
 gress so far at least as to be exempted from responsibility 
 for their treatment of the plaintiff, they were entitled to give 
 in evidence testimony, subsequently discovered, tending to 
 
 "Letter to the Sheriffs of Bristol. 
 
17 
 
 establish the correctness of their suspicions of the complicity 
 of the plaintiff in the desertion of the substitutes. The 
 court below refused to admit the testimony, and this court 
 holds that it thus erred ; and, for that reason, reverses its 
 judgment. The testimony consisted of three depositions 
 filled with hearsay, conjectures, understandings, beliefs, and 
 other irrelevant matter which rendered them inadmissible as 
 a whole in any court on any subject ; and on that ground 
 they were objected to, and in my judgment ought to have 
 been excluded. They were offered to show the guilt of the 
 plaintiff' in aiding the desertion of the substitutes, and, 
 though the evidence they furnished was of the vaguest and 
 most unsatisfactory character, the Court excluded them, on 
 the ground that the guilt or innocence of the plaintiff was not 
 a question for the determination of the jury ; and that for 
 the purpose of rebutting malice and showing good faith, 
 they could not give in evidence circumstances of which they 
 had never heard until after the commencement of the action. 
 As facts not known at that time could not have influenced the 
 conduct of the defendants, it is difficult to comprehend how 
 proof of those facts could be received to show the motives 
 of malice or good faith with which they then acted.* 
 
 Independently of this consideration, it seems to me, that 
 the evidence of the guilt or innocence of the plaintiff was 
 entirely immaterial. Assuming that he was guilty of the 
 complicity alleged that he had admitted his guilt to the de- 
 fendants that circumstance would not have justified their 
 conduct in the slightest degree. They would have been 
 equally bound upon that assumption, as they were in fact 
 bound no more and no less to take the plaintiff before the 
 
 *The record reads as follows : 
 
 " The said three depositions were offered for the purpose of satisfying the 
 jury of the guilt of Bean by evidence which was not known to or did not 
 corns to the knowledge of the defendants prior to said release. 
 
 ' The Court excluded said depositions upon the ground that the guilt or in- 
 nocence of said Bean was not a question for the determination of the jury, 
 but that all the facts and circum stances which were known to the defendants, 
 or with which they in any way became acquainted prior to the imprisonment, 
 could be admitted for the purpose of rebutting malice and showing that fhej 
 acted in gool faith, but thit they could not give in evidence circumstances of 
 which they hil mvzr heird until after the commencement of this suit." 
 
18 
 
 proper magistrate to be proceeded against according to law. 
 To keep him for nearly six months in the State prison among 
 convicts, without taking him before the proper officer to be 
 held to bail or brought to trial, was a gross outrage upon 
 his rights, whether he were guiliy or innocent. There were 
 magistrates in every county of the State competent to act 
 upon the charge, and the District Attorney was ready to take 
 control of all cases against the laws of the United States and 
 prosecute them. The defendants not only omitted this plain, 
 imperative duty, but detained the plaintiff in prison, not 
 with a view to punish him for the offence of which they sus- 
 pected him to be guilty, but to coerce from him payment of 
 money alleged to be due by him and others to a substitute 
 broker. Where is the law or reason for allowing one, who 
 by force holds another in confinement in order to extort the 
 payment of money, to show in extenuation of his conduct 
 that the man had been guilty of some offence against the 
 law ? The answer in all such cases should be, that the law 
 attaches the proper penalties to its violation, and appoints 
 the ministers by whom those penalties are to be enforced ; 
 and whenever they can act, whoever usuips their authority and 
 attempts to punish supposed offenders, in any other mode 
 than that provided by the law, is himself a criminal. For, 
 as it was said by a distinguished statesman and jurist of 
 England, when the laws can act, "every other mode of pun- 
 ishing supposed crimes is itself an enormous crime." 
 
 The doctrine announced by the decision of the Court in 
 this case is nothing less than this: that a gross outrage upon 
 the rights of a person may be extenuated or excused by 
 proof that the outraged party had himself been guilty of 
 some crime, or, at least, that the perpetrators of the outrage 
 had reason to suspect that he had. This doctrine is pregnant 
 with evil. I know not why, under it, the violence of mobs, 
 excited' against guilty or suspected parties, may not find ex- 
 tenuation. Let such a doctrine be once admitted, and a 
 greater blow will be dealt to personal security than any given 
 to it for a century. 
 
 If we turn to the adjudged cases, we shall find nothing to 
 
19 
 
 support, but everything to condemn, the doctrine. Thus, in 
 Delegal vs. Highley,* which was an action brought for a ma- 
 licious charge before a magistrate, the defendant pleaded 
 that he had caused the charge to be made upon reasonable 
 and probable cause, stating what the cause was. Upon 
 special demurrer the plea was held insufficient, in not alleg- 
 ing that the defendant, at the time of the charge, had been 
 informed of, or knew the facts on which the charge was 
 made. "If the defendant," said Chief Justice TINDAL, "in- 
 stead of relying on the plea of not guilty, elects to bring the 
 facts before the Court in a plea of justification, it is obvious 
 that he must allege, as a ground of defence, that which is so 
 important in proof under the plea of not guilty, viz, that 
 the knowledge of certain facts and circumstances which were 
 sufficient to make him, or any reasonable person, believe the 
 truth of the charge which he instituted before the magis- 
 trate, existed in his mind at the time the charge was laid, 
 and was the reason and inducement for his putting the law in 
 motion. Whereas, it is quite consistent with the allegatiors 
 in this plea, that the charge was made upon some ground al- 
 together independent of the existence of the facts stated in 
 the plea; and that the defendant now endeavors to support 
 the propriety of the charge, originally without cause, by 
 facts and circumstances which have come to his knowledge 
 for the first time since the charge was made." 
 
 So, also, the converse of this doctrine is true : if a defend- 
 ant prove that, at the time of the arrest, he had reasonable 
 cause to believe the plaintiff guilty, this cannot be rebutted 
 by proof that, afterward he turned out to be entirely inno- 
 cent.f 
 
 It will appear from an examination of the adjudged cases, 
 as it must on principle, that when illegal measures have been 
 taken to redress private wrongs, or to punish for offences 
 against the public, it is inadmissible to prove, in mitigation 
 of actual or exemplary damages, that the party injured was 
 guilty of the offence or misconduct constituting the provoca- 
 
 *32 Eng. Com. Law, 398. 
 
 tFoshay vs. Ferguson, 2 Denio, 617. 
 
 o-jr 
 
20 
 
 tion to the illegal measures, except where the provocation is of 
 a personal character calculated to excite passion, and so recent 
 as to create the presumption that the acts complained of were 
 committed under the influence of the passion thus excited. 
 Thus, in an action of trespass for destroying or injuring cer- 
 tain dwelling-houses, it was held by the Supreme Court of 
 Maine incompetent for the defendant to prove in mitigation 
 of damages that they were occupied as houses of ill-fame.* 
 So, in a similar action, for shooting into a house in the night- 
 time, it was held by the Supreme Court of Illinois, that the 
 defendant could not prove, in mitigation of exemplary dam- 
 ages, the kidnapping and seduction of his daughter by the 
 plaintiff and her husband, done nearly a year previous. f And 
 in trespass for tearing down the plaintiff's house, evidence 
 that it was occupied by disreputable females as a disorderly 
 house, whereby the defendant had suffered serious injury 
 and disturbance, was held by the Supreme Court of New 
 Hampshire inadmissible either to rebut the presumption of 
 malice, or in answer to a claim for exemplary damages. J 
 
 Many other illustrations might be adduced from the adjudi- 
 cations of the State courts. They are founded upon the plain 
 principle, that no one can be allowed to undertake the pun- 
 ishment of wrongdoers according to his own notions; that 
 the administration of punitive justice for all offences is con- 
 fided by the law to certain public officers, and whoever as- 
 sumes their functions without being authorized, usurps the 
 prerogative of sovereign power and becomes himself amena- 
 ble to punishment. He shall not be permitted to set up the 
 real or supposed offences of others to justify his own wrong. 
 
 Here, the defendants having, by a gross abuse of their 
 official authority, confined the plaintiff in a State prison 
 among convicts, for many months, not that he might be pros- 
 ecuted for a public offence, but for the avowed purpose of 
 coercing the payment of -money, they ought not to be per- 
 mitted to set up either in mitigation of actual or exemplary 
 
 * Johnson vs. Farwell, Greenleaf, 390. 
 t Huftalin vs. Misner, 70 111 , 55. 
 
 t Perkins vs. Yowle, 43 N. H., 220. See, also, Weston vs. Gravlin, 49 Vt., 
 607. 
 
21 
 
 damages, that the plaintiff was guilty of an offence for which 
 the law had prescribed another and different punishment. 
 In the whole range of adjudications in the English and Amer- 
 ican courts, I can find no ruling which sanctions the admis- 
 sion of such testimony for any purpose. 
 
 There is nothing in the cases cited in the opinion of the 
 majority from the English Common Pleas, or from the de- 
 cisions of the courts of Ohio, Kentucky, and Illinois, which 
 has any relevancy to the question here presented, as any one 
 may satisfy himself by their examination. The circumstances 
 of which evidence was there allowed existed, and were 
 known when the grievances complained of were committed, 
 and- tended to establish probable cause for them. There is 
 no intimation in any of the cases of the novel doctrine, now 
 for the first time announced, that subsequently discovered 
 evidence could be received in extenuation of conduct not 
 founded upon it. 
 
 The charge of the court to the jury was, except perhaps in 
 one particular, as favorable to the defendants as the case per- 
 mitted. It gave a succinct and clear statement of the facts, 
 and declared the law applicable to them with precision and 
 accuracy. It told them that the arrest of the plaintiff was 
 of little consequence as compared with his imprisonment; 
 that had he been taken at once before an United States Com- 
 missioner, the arrest without a warrant, though an illegal 
 act, would have called for small damages, and that the im- 
 portance of the case consisted in his imprisonment and the 
 purpose of it. In adding, that after the plaintiff was impris- 
 oned it was not the purpose of the defendants to try him 
 in the civil courts, but to hold him with a strong hand until 
 the money was paid, the court merely stated what the uncon- 
 tradicted evidence on the trial established, and what was not 
 disputed. For this, said the court, "he is entitled to just 
 damages, to be recompensed for his expenses, to be paid for 
 the suffering to body and mind from confinement in a com- 
 mon cell in the State prison, for the disgrace, for the separa- 
 tion from his family at a time when it was very important 
 that he should not be separated from them ; in brief, for the 
 
22 
 
 loss of his personal liberty, and for the immediate and neces- 
 sary losses in his business resulting from his confinement, 
 and to the pecuniary loss which he immediately and directly 
 sustained." To this the Court added, that if the defendant 
 Henry was influenced in all his conduct by a determination 
 to prevent the release of the plaintiff, and to hold him after 
 he was ordered to be turned over to the civil authorities, and 
 was thus guilty of malice or ill-will, the jury might give, in 
 addition to remunerative, punitive damages; that is, such 
 sum as would punish him for the malice exhibited and teach 
 him and others to refrain from similar conduct. 
 
 The case here is much stronger than that of Mitchell vs. 
 Harmony, reported in the 13th of Howard. There the prop- 
 erty of the plaintiff had been seized by an officer of the army 
 of the United States, upon the belief that he was unlawfully en- 
 gaged in trading with the enemy. It turned out that he had 
 been permitted by the Executive Department of the govern- 
 ment to trade with the inhabitants of neighboring provinces 
 of Mexico, which were in the possession of the military au- 
 thorities of the United States. In an action for trespass for 
 seizing the property, the defendant, among other reasons, 
 justified the seizure on the ground that he acted in obedi- 
 ence to the order of his commanding officer, and, therefore, 
 was not liable. But the court answered, Mr. Chief Justice 
 TANEY speaking for it, by referring to the case of Captain 
 Gambier, mentioned by Lord MANSFIELD in his opinion in 
 Mostyn vs. Fabrigas,* and observing that " upon principle 
 independent of the weight of judicial decision, it can never 
 be maintained that a military officer can justify himself for 
 doing an unlawful act by producing the order of his superior. 
 The order may palliate, but it can never justify." And in 
 that case the Court added, that the defendant did not stand 
 in the situation of an officer who merely obeys the command 
 of his superior, for it appeared that he advised the order and 
 volunteered to execute it, when that duty more properly be- 
 longed to an officer of an inferior grade. 
 
 Here the defendant Henry was especially officious in se- 
 
 * l Cowp., 180. 
 
23 
 
 curing the arrest and in continuing the imprisonment of the 
 plaintiff. He advised the arrest ; he insisted upon the im- 
 prisonment until the payment of the $800 was coerced, and 
 he urged against turning the case over to the civil tribunals. 
 The spirit which actuated him, as well as Beckwith, is shown 
 in their telling the plaintiff at Button, on the day of his ar- 
 rest, and afterward when in confinement in the State prison, 
 " that if they could not hold him as privy to the desertion, 
 they should take him to Canada to be prosecuted there un- 
 der the foreign-enlistment acts for enlisting the men, unless 
 he, paid over the money." 
 
 The case of Captain Gam bier, mentioned by Lord MANS- 
 FIELD, and ref ered to by Chief Justice TANEY, was this : By 
 order of an admiral of the English navy he had pulled down 
 the houses of some sutlers in Nova Scotia who were supply- 
 ing sailors with spiritous liquors, by which their health was 
 injured. " The motive," says the Chief Justice, " was evi- 
 dently a laudable one, and the act was done for the 
 public service. Yet it was an invasion of the rights of pri- 
 vate property, and without authority of law, and the officer 
 who executed this order was held liable to an action, and the 
 sutlers recovered against him to the value of the property 
 destroyed." "This case," he adds, "shows how carefully 
 the rights of private property are guarded by the laws of 
 England ; and they are certainly not less valued nor less se- 
 curely guarded under the Constitution and laws of the Uni- 
 ted States." 
 
 The only criticism, perhaps, to which the charge is open 
 is, that it does not distinguish between the conduct of the de- 
 fendant Beckwith and that of the defendant Henry. The 
 former does not appear from the evidence to have been as 
 officious and persistent as the latter in efforts to hold the 
 plaintiff until the money was coerced from him. But no ob- 
 jection to the charge was made on this ground; nor does it ap- 
 pear that on the trial any distinction was drawn as to the ex- 
 tent of liability between the two defendants, or that any 
 other than compensatory damages were allowed by the jury. 
 They may well have supposed that the amount awarded was 
 
24 
 
 at best but poor compensation. Few indeed would consider 
 the verdict given as sufficient for the disgrace, humiliation, 
 and suffering wantonly inflicted upon the plaintiff. As puni- 
 tive damages, the verdict was not at all excessive. On this 
 last point, I will quote from only one case, decided in 1763. 
 It is the case of Huckle vs. Money,* tried before the Chief 
 Justice of the Common Pleas of England. The plaintiff was 
 a journeyman printer, and was taken into custody by the de- 
 fendant, the King's messenger, upon suspicion of having 
 printed a newspaper called the North Briton, and was kept 
 in custody six hours ; but he was used civilly, so that he suf- 
 fered little or no damages. The defendant attempted to jus- 
 tify under a general warrant of the Secretary of State to ap- 
 prehend the printers and publishers of that paper; but the 
 justification was overruled by the Chief Justice, and the 
 plaintiff recovered .300 as damages. A new trial was moved 
 for on the ground that this amount was excessive, it being in 
 evidence that the printer received only weekly wages of a 
 guinea. But the motion was denied, and in giving the deci- 
 sion of the court the Lord Chief Justice said: " That if the 
 jury had been confined by their oath to consider the mere 
 personal injury only, perhaps 20 damages would have been 
 thought damages sufficient; but the small injury done to the 
 plaintiff, or the inconsiderableness of his station and rank in 
 life, did not appear to the jury in that striking light, in which 
 the great point of law touching the liberty of the subject ap- 
 peared to them at the trial; they saw a magistrate over all 
 the King's subjects, exercising arbitrary power, violating 
 Magna Charta, and attempting to destroy the liberty of the 
 kingdom, by insisting upon the legality of this general war- 
 rant before them ; they heard the King's counsel, and saw the 
 solicitor of the treasury, endeavoring to support and main- 
 tain the legality of the warrant in a tyrannical and severe 
 manner; these are the ideas which struck the jury on the 
 trial, and I think they have done right in giving exemplary 
 damages. To enter a man's house by virtue of a nameless 
 warrant, in order to procure evidence, is worse than the 
 
 * 2 Wilson's Kep., 205. 
 
25 
 
 Spanish inquisition ; a law under which no Englishman would 
 wish to live an hour; it was a most daring public attack 
 made upon the liberty of the subject. I thought that the 
 29th chapter of Magna Charta Nullus liber homo capiatur et 
 imprisonetur, &c., nee super eum ibimus, &c., nisi per legaleju- 
 diciumparium suorum vel per lec/em terrce, &c., which is pointed 
 against arbitrary power, was violated." 
 
 I am clearly of opinion that the judgment of the court be- 
 low should be affirmed, and I am authorized to say that Mr. 
 Justice CLIFFORD concurs with me in this respect, and in the 
 views I have expressed. 
 
 The following statement of the character of the evidence given on the trial 
 touching the treatment of the plaintiff is printed from the record in the case : 
 
 " The plaintiff's evidence tended to show that on the llth day of Novem- 
 ber, A. D. 1864, while on his return from a trip to Boston, to his home in 
 Coaticook, in the Province of Quebec, he was arrested in a passenger-car, 
 near Wells river, in the State of Vermont, by defendant Beckwith, without 
 any warrant or process of law, and taken from thence to Sutton, Vermont. 
 
 " That Beckwith at first proposed to take plaintiff to St. Johnsbury jail, 
 but afterward decided to take him to his (Beckwith's) residence at Sutton, 
 to which place he was then on his way, for the purpose of allowing plaintiff 
 to see his father, who lived about fifteen miles from Sutton. 
 
 ' ' That said Beckwith kept the plaintiff there through the ensuing night, 
 under charge of keepers; that the plaintiff's father, for whom the plaintiff 
 sent after his arrival at Sutton, came there during the night, but Beckwith re- 
 fused to allow the plaintiff to have an interview with his father except in his 
 (Beckwith's) presence. 
 
 " That on the following day defendant forcibly and against the will of the 
 plaintiff took him, and by order of Oilman Henry, the other defendant, 
 placed him in the State's Prison at Windsor, Vermont, where he remained 
 until on or about the 26th day of April, 1865, when he was admitted to bail, 
 and released from said imprisonment. 
 
 " That during all that time he was locked up in the night time, and for the 
 first few days in the day-time also, in a narrow and scantily furnished cell, 
 being one of those in which convicts in the State's Prison were confined at 
 night; that after the first few days he was allowed, upon his complaint of the 
 coldness of the cell in the day-time, to spend the day in the shops where the 
 convicts worked, but was required to go out and return to his cell when they 
 did, and not at any time to be out of sight of a keeper, nor to go upon the 
 corridors or in the yard for exercise; that the food offered him was the fare 
 served to the convicts, and which he could not eat; and thenceforth he ob- 
 tained his meals to be sent to him from the keepers' table, by paying $3 per 
 week, which he paid during the whole time. 
 
 " The plaintiff's evidence further tended to show that he was informed, at 
 or soon after the time of his arrest, by defendants that he was charged with 
 being one of three persons who had received $800 of money paid for two 
 men who had enlisted in the army in June previous as substitutes, and had 
 immediately deserted, as more particularly stated hereafter, and with being 
 privy to their desertion. 
 
 " That he was imprisoned on Saturday, and saw no one but the keepers 
 
till the Monday following, when defendant Henry came to see him; that 
 Henry told him he could be discharged on payment of the $800 and $25 
 more for expenses; that the plaintiff protested his innocence and demanded 
 a trial; that he was told by Henry he could not have a trial and could not get 
 one, but that his case would be reported to Major Austine, at Brattleboro, 
 Assist. Pro. Marshal Gen. 
 
 " That plaintiff thereupon requested him to make immediate report, which 
 he promised to do. That later in the same day, the plaintiff being in much 
 distress of mind and anxious to return to his family, and thinkirg perhaps 
 the money might be paid under protest, telegraphed his father to come and 
 bring $800, and sent word to Henry, by the messenger who took the dispatch, 
 requesting him not to report the case till his father arrived, which he ex- 
 pected would be on the following day. 
 
 "That his father arrived on the next day but one. That his father had an 
 interview with Henry, and said to him that neither he nor the plaintiff would 
 pay a dollar, and requested him to report the case at once. 
 
 " He was further told by both defendants, both at Sutton and after his con- 
 finement at Windsor, that if they could not hold him as privy to the deser- 
 tion they should take him to Canada to be prosecuted there under the foreign- 
 enlistment acts for enlisting the men, unless he paid over the money. 
 
 ' That from that time plaintiff constantly urged that his case should be re- 
 ported, or that a trial should be given him, or that he be admitted to bail, 
 and protested his innocence. And Henry repeatedly promised to report the 
 case, but frequently told him and bis father he could not get a trial, nor be 
 admitted to bail, and that he would be discharged at any time on payment 
 of $825. 
 
 * fc * * ******* 
 
 " The plaintiff's evidence further tended to show that throughout his im- 
 prisonment he made constant efforts in various ways to obtain a trial or a 
 release on bail, which he was able and willing to furnish; that his father made 
 eleven journeys from the northern part of Vermont to Windsor, Brattle- 
 borough, &c., for that purpose: that among other efforts he addressed to 
 Major General Dix, then in command of that department, the following 
 letter: 
 
 WINDSOB STATE'S PRISON, \ 
 Jan'y 21st, 1865. f 
 " Major General J. A. Dix : 
 
 " SIB : I am told by one Daniel Beckwith, a Deputy Provost Marshal here, 
 by whom I have been committed here on a charge (of which I am entirely 
 innocent) of aiding or being privy to the escape of two substitutes, who had 
 received $800 paid them by one Stevens, and that you have ordered my im- 
 prisonment here till I pay the $800 and expenses. 
 
 " If I am guilty of aiding a soldier to desert, I ought to be punished, and 
 I cannot see, sir, how (I say it respectfully) you have any right to order my 
 imprisonment for any indefinite time, without giving me an opportunity to 
 prove my innocence. 
 
 " I ask nothing but what is right, and the right of every citizen of the 
 United States, that is, a trial. 
 
 " I do not believe, sir, that you have made any such orders, but the fact is, 
 I am kept in prison ever since November 11, 1864. my family suffering and 
 my character defamed, and a trial denied me. 
 
 " I am told, sir, there is a United States Attorney in Vermont, whose duty 
 it is to investigate such matters, and I respectfully ask, sir, if the matter is 
 within your jurisdiction, that he be directed to bring me to trial; and if the 
 Government is not ready for trial. I can find any number of respectable people 
 who will become my bail until such time as the Government is ready to 
 try me. 
 
27 
 
 1 ' Again, sir, I ask you candidly and respectfully to order a complaint to be 
 made against me, and if proved guilty, I must suffer the consequences. 
 " Yours respectfully, 
 
 "ANDKEW J. BEAN. 
 
 " That said Bean obtained the intercession at Washington of Mr. Baxter, a 
 member of Congress from Vermont. 
 
 " His evidence further tended to show that he learned early in April of an 
 order for his release having been sent from Washington, and made, as did his 
 father, urgent efforts to obtain his release, as his wife was then about to be 
 confined; that he did not succeed, though repeated applications were made to 
 Henry, until tbe 26th of April, and after the confinement of his wife, when 
 Henry brought him before a Justics of the Peace of Windsor, who took bail 
 for his appearance before a U. S. Commissioner when called on." 
 

THE CONSTITUTIONALITY OF THE LEGAL TENDER ACTS 
 CONSIDERED AND DENIED. 
 
 DISSENTING OPINION 
 
 OF 
 
 MR. JUSTICE KIELD, 
 
 OF UNITED STATES SUPREME COURT, 
 
 IN 
 
 KNOX vs. LEE 
 
 AND 
 
 PARKER vs. DAVIS, 
 
 Delivered at the December Term, 1870.* 
 
 These two cases came before the Supreme Court of the 
 United States the first, Knox v. Lee, on writ of error to 
 the Circuit Court for the Western District of Texas; the 
 second, Parker v. Davis, on appeal from a decree in equity 
 of the Supreme Judicial Court of Massachusetts; and 
 they were argued together. Their determination in- 
 volved a consideration of two questions: 1st, whether the 
 act of Congress known as the Legal-tender Act is constitu- 
 tional when applied to contracts made before its passage ; 
 and, 2d, is it valid as applied to debts subsequently con- 
 tracted. The act was declared unconstitutional, as applied 
 to past contracts, in Hepburn v. Griswold, reported in 8 
 Wall. 603. In these cases, the personality of the court 
 having since been changed, the majority overruled that 
 decision, and held the act to be constitutional both as ap- 
 plied to past and future contracts. From that judgment 
 Chief Justice Chase and Justices Clifford and Field dis- 
 
 * Reported in 12 Wall. 634. 
 
sented, each of them writing a separate opinion. The 
 following is the dissenting opinion of Mr. Justice FIELD : 
 
 OPINION. 
 
 FIELD, J. Whilst I agree with the Chief Justice in the 
 views expressed in his opinion in these cases, the great 
 importance which I attach to the question of legal tender 
 induces me to present some further considerations on the 
 subject. 
 
 Nothing has been heard from counsel in these cases, 
 and nothing from the present majority of the court, which 
 has created a doubt in my mind of the correctness of the 
 judgment rendered in the case of Hepburn v. Griswold, (8 
 Wall. 603,) or of the conclusions expressed in the opinion 
 of the majority of the court as then constituted. That 
 judgment was reached only after repeated arguments were 
 heard from able and eminent counsel, and after every 
 point raised on either side had been the subject of ex- 
 tended deliberation. 
 
 The questions presented in that case were also involved 
 in several other cases, and had been elaborately argued 
 in them. It is not extravagant to say that no case has 
 ever been decided by this court since its organization, in 
 which the questions presented were more fully argued or 
 more maturely considered. It was hoped that a judgment 
 thus reached would not be lightly disturbed. It was 
 hoped that it had settled forever that, under a Constitution 
 ordained, among other things, "to establish justice," leg- 
 islation giving to orte person the right to discharge his 
 obligations to another by nominal instead of actual ful- 
 filment, could never be justified. 
 
 I shall not comment upon the causes which have led 
 to a reversal of that judgment. They are patent to every 
 one. I will simply observe that the Chief Justice and the 
 Associate Justices, who constituted the majority of the 
 court when that judgment was rendered, still adhere to 
 their former convictions. To them the reasons for the 
 original decision are as cogent and convincing now as 
 
they were when that decision was pronounced; and to 
 them its justice, as applied to past contracts, is as clear 
 to-day as it was then. 
 
 In the cases now before us the questions stated, by 
 order of the court, for the argument of counsel, do not 
 present with entire accuracy the questions actually argued 
 and decided. As stated, the questions are : 1st. Is the act 
 of Congress, known as the Legal-tender Act, constitutional 
 as to contracts made before its passage? 2d. Is it valid 
 as applicable to transactions since its passage? 
 
 The act thus designated as the Legal-tender Act is the 
 act of Congress of February 25, 1862, authorizing the 
 issue of United States notes, and providing for their re- 
 demption or funding, and for funding the floating debt 
 of the United States, (12 Stat. at Large, 345;) and the 
 questions, as stated, would seem to draw into discussion 
 the validity of the entire act ; whereas the only questions 
 intended for argument, and actually argued and decided, 
 relate 1st, to the validity of that provision of the act 
 which declares that these notes shall be a legal tender in 
 payment of debts, as applied to private debts and debts 
 of the government contracted previous to the passage of 
 the act; and, 2d, to the validity of the provision as ap- 
 plied to similar contracts subsequently made. The case 
 of Parker v. Davis involves the consideration of the first 
 question ; and the case of Knox v. Lee is supposed by a 
 majority of the court to present the second question. 
 
 No question was raised as to the validity of the pro- 
 visions of the act authorizing the issue of the notes, and 
 making them receivable for dues to tfte United States; 
 nor do I perceive that any objection could justly be made 
 at this day to these provisions. The issue of the notes 
 was a proper exercise of the power to borrow money, 
 which is granted to Congress without limitation. The 
 extent to which the power may be exercised depends, in 
 all cases, upon the judgment of that body as to the ne- 
 cessities of the government. The power to borrow in- 
 
eludes the power to give evidences of indebtedness and 
 obligations of repayment. Instruments of this character 
 are among the securities of the United States mentioned 
 in the Constitution. These securities are sometimes in 
 the form of certificates of indebtedness, but they may be 
 issued in any other form, and in such form and in such 
 amounts as will fit them for general circulation, and to 
 that end may be made payable to bearer and transferable 
 by delivery. The form of notes, varying in amounts to 
 suit the convenience or ability of the lender, has been 
 found by experience a convenient form, and the one best 
 calculated to secure the readiest acceptance and the larg- 
 est loan. It has been the practice of the government to 
 use notes of this character in raising loans and obtaining 
 supplies from an early period in its history, their receipt 
 by third parties being in all cases optional. 
 
 In June, 1812, Congress passed an act which provided 
 for the issue of Treasury notes, and authorized the Secre- 
 tary of the Treasury, with the approbation of the Presi- 
 dent, " to borrow from time to time, not under par, such 
 sums " as the President might think expedient, " on the 
 credit of such notes." (2 Stat. at Large, 766.) 
 
 In February, 1813, Congress passed another act for the 
 issue of Treasury notes, declaring " that the amount of 
 money borrowed or obtained by virtue of the notes " issued 
 under its second section should be a part of the money 
 authorized to be borrowed under a previous act of the 
 same session. (2 Stat. at Large, 801.) There are numerous 
 other acts of a similar character on our statute books. 
 More than twenty, I believe, were passed previous to the 
 Legal -tender Act.* 
 
 *Acts of Congress authorizing the issue of Treasury notes : 2 Stat. at 
 Large, 766, approved June 30, 1812; Id. 801, approved February 25, 1813; 
 3 Stat. at Large, 100, approved March 4, 1814 ; Id. 161, approved Decem- 
 ber 26, 1814 ; Id. 213, approved February 24, 1815; 5 Stat. at Large, 201, 
 approved October 12,1837; Id. 228, approved May 21, 1838; Id. 323, 
 approved March 2, 1839; Id. 370, approved March 31, 1840; Id. 411, ap- 
 
In all of them the issue of the notes was authorized as 
 a means of borrowing money, or obtaining supplies, 
 or paying the debts of the United States, and in all of 
 them the receipt of the notes by third parties was 
 purely voluntary. Thus, in the first act of June, 1812, the 
 Secretary of the Treasury was authorized, not only to 
 borrow on the notes, but to issue such notes as the Presi- 
 dent might think expedient " in payment of supplies or 
 debts due by the United States to such public creditors or 
 other persons " as might " choose to receive such notes in pay- 
 ment at par" Similar provisions are found in all the acts 
 except where the notes are authorized simply to take up 
 previous loans. 
 
 The issue of the notes for supplies purchased or services 
 rendered at the request of the United States is only giving 
 their obligations for an indebtedness thus incurred ; and 
 the same power which authorizes the issue of notes for 
 money must also authorize their issue for whatever is re- 
 ceived as an equivalent for money. The result to the 
 United States is the same as if the money were actually 
 received for the notes and then paid out for the supplies 
 or services. 
 
 The notes issued under the act of Congress of February 
 25, 1862, differ from the Treasury notes authorized by the 
 previous acts to which I have referred, in the fact that 
 they do not bear interest, and do not designate on their 
 face a period at which they shall be paid, features which 
 may affect their value in the market, but do not change 
 their essential character. There cannot be, therefore, as 
 already stated, any just objection at this day to the issue 
 of the notes, nor to their adaptation in form for general 
 circulation. 
 
 proved February 15, 1841 ; Id. 469, approved January 31, 1842; Id. 473, 
 approved April 15,1842; Id. 581, approved August 31,1842; Id. 614, 
 approved March 3, 1843*; 9 Stat. at Large, 39, approved July 22, 1846 ; Id. 
 64, approved August 6,1846; Id. 118, approved January 28, 1847; 11 
 Stat. at Large, 257, approved December 23, 1857; Id. 430, approved 
 March 3, 1859. 
 
6 
 
 Nor can there be any objection to their being made re- 
 ceivable for dues to the United States. Their receiva- 
 bility in this respect is only the application to the demands 
 of the government, and demands against it, of the just 
 principle which is applied to the demands of individuals 
 against each other, that cross-demands shall offset and sat- 
 isfy each other to the extent of their respective amounts. 
 No rights of third parties are in any respect affected by 
 the application of the rule here, and the purchasing and 
 borrowing power of the notes are greatly increased by 
 making them thus receivable for the public dues. The 
 objection to the act does 'not lie in these features; it lies 
 in the provision which declares that the notes shall be 
 "a legal tender in payment of all debts, public and pri- 
 vate," so far as that provision applies to private debts, and 
 debts owing by the United States. 
 
 In considering the validity and constitutionality of 
 this provision, I shall in the first place confine myself to 
 the provision in its application to private debts. After- 
 wards I shall have something to say of the provision in 
 its application to debts owing by the government. 
 
 In the discussions upon the subject of legal tender the 
 advocates of the measure do not agree as to the power in 
 the Constitution to which it shall be referred ; some plac- 
 ing it upon the power to borrow money, some on the coin- 
 ing power, and some on what is termed a resulting power 
 from the general purposes of the government; and these 
 discussions have been accompanied by statements as to 
 the effect of the measure, and the consequences which 
 must have followed had it been rejected, and which will 
 now occur if its validity be not sustained, which rest upon 
 no solid foundation, and are not calculated to aid the 
 judgment in coming to a just conclusion. 
 
 In what I have to say I shall endeavor to avoid any 
 such general and loose statements, and "shall direct myself 
 to an inquiry into the nature of these powers to which 
 the measure is referred, and the relation of the measure 
 to them. 
 
Now if Congress can, by its legislative declaration, make 
 the notes of the United States a legal tender in payment 
 of private debts that is, can make them receivable 
 against the will of the creditor in satisfaction of debts 
 due to him by third parties its power in this respect is 
 not derived from its power to borrow money, under which 
 the notes were issued. That power is not different in its 
 nature or essential incidents from the power to borrow 
 possessed by individuals, and is not to receive a larger 
 definition. Nor is it different from the power often 
 granted to public and private corporations. The grant, 
 it is true, is usually accompanied in these latter cases 
 with limitations as to the amount to be borrrowed, and a 
 designation of the objects to which the money shall be 
 applied limitations which in no respect affect the nature 
 of the power. The terms " power to borrow money " have 
 the same meaning in all these cases, and not one meaning 
 when used by individuals, another when granted to cor- 
 porations, and still a different one when possessed by Con- 
 gress. They mean only a power to contract for a loan of 
 money upon considerations to be agreed between the 
 parties. The amount of the loan, the time of repayment, 
 the interest it shall bear, and the form in which the obli- 
 gation shall be expressed are simply matters of arrange- 
 ment between the parties. They concern no one else. It 
 is no part or incident of a contract of this character that 
 the rights or interests of third parties, strangers to the 
 matter, shall be in any respect affected. The transaction 
 is completed when the lender has parted with his money, 
 and the borrower has given his promise of repayment at 
 the time, and in the manner, and with the securities stipu- 
 lated between them. 
 
 As an inducement to the loan, and security for its re- 
 payment, the borrower may of course pledge such prop- 
 erty or revenues, and annex to his promises such rights 
 and privileges as he may possess. His stipulations in 
 this respect are necessarily limited to his own property, 
 
8 
 
 rights, and privileges, and cannot extend to those of other 
 persons. 
 
 Now, whether a borrower be the borrower an individ- 
 ual, a corporation, or the government can annex to the 
 bonds, notes, or other evidences of debt given for the 
 money borrowed any quality by which they will serve 
 as a means of satisfying the contracts of other parties, 
 must necessarily depend upon the question whether the 
 borrower possesses any right to interfere with such con- 
 tracts, and determine how they shall be satisfied. The 
 right of the borrower in this respect rests upon no differ- 
 ent foundation than the right to interfere with any other 
 property of third parties. And if it will not be contended, 
 as I think I may assume it will not be, that the borrower 
 possesses any right, in order to make a loan, to interfere 
 with the tangible and visible property of third parties, I 
 do not perceive how it can be contended that he has any 
 right to interfere with their property when it exists in the 
 form of contracts. A large part of the property of every 
 commercial people exists in that form, and the principle 
 which excludes a stranger from meddling with another's 
 property which is visible and tangible, equally excludes 
 him from meddling with it when existing in the form of 
 contracts. 
 
 That an individual or a corporation borrowing possesses 
 no power to annex to his evidences of indebtedness any 
 quality by which the holder will be enabled to change 
 his contracts with third parties, strangers to the loan, is 
 admitted ; but it is contended that Congress possesses such 
 power, because, in addition to the express power to borrow 
 money, there is a clause in the Constitution which au- 
 thorizes Congress to make all laws " necessary and proper" 
 for the execution of the powers enumerated. This clause 
 neither augments nor diminishes the expressly designated 
 powers. It only states in terms what Congress would 
 equally have had the right to do without its insertion in 
 the Constitution. It is a general principle that a power 
 
9 
 
 to do a particular act includes the power to adopt all the 
 ordinary and appropriate means for its execution. " Had 
 the Constitution," says Hamilton, in the Federalist, speak- 
 ing of this clause, "been silent on this head, there can be 
 no doubt that all the particular powers requisite, as a 
 means of executing the general powers would have resulted 
 to the government by unavoidable implication. No 
 axiom is more clearly established in law or in reason, that 
 whenever the end is required, the means are authorized; 
 whenever a general power to do a thing is given, every 
 particular power necessary for doing it is included." (The 
 Federalist, No. 44.) 
 
 The subsidiary power existing without the clause in 
 question, its insertion in the Constitution was no doubt 
 intended, as observed by Mr. Hamilton, to prevent "all 
 cavilling refinements" in those who might thereafter feel 
 a disposition to curtail and evade the legitimate author- 
 ities of the Union; and also, I may add, to indicate the 
 true sphere and limits of the implied powers. 
 
 But though the subsidiary power would have existed 
 without this clause, there would have been the same per- 
 petually recurring question as now, as to what laws are 
 necessary and proper for the execution of the expressly 
 enumerated powers. 
 
 The particular clause in question has at different times 
 undergone elaborate discussion in Congress, in cabinets, 
 and in the courts. Its meaning was much debated in the 
 first Congress upon the proposition to incorporate a na- 
 tional bank, and afterwards in the cabinet of Washington, 
 when that measure was presented for his approval. Mr. 
 Jefferson, then Secretary of State, and Mr. Hamilton, then 
 Secretary of the Treasury, differed widely in their con- 
 struction of the clause, and each gave his views in an 
 elaborate opinion. Mr. Jefferson held that the word " ne- 
 cessary" restricted the power of Congress to the use of 
 those means, without which the grant would be nugatory, 
 thus making necessary equivalent to indispensabl< 
 
 THE 
 
 fair iv EH 
 
10 
 
 Mr. Hamilton favored a more liberal, and, in my judg- 
 ment, a more just, interpretation, and contended that the 
 terms "necessary and proper" meant no more than that 
 the measures adopted must have an obvious relation as 
 a means to the end intended. "If the end," he said, "be 
 clearly comprehended within any of the specified powers, 
 and if the measure have an obvious relation to that end, 
 and is not forbidden by any particular provision of the 
 Constitution, it may safely be deemed to come within the 
 compass of the national authority." "There is also," he 
 added, "this further criterion which may materially assist 
 the decision. Does the proposed measure abridge a pre- 
 existing right of any State, or of any individual? If it 
 does not, there is a strong presumption in favor of its con- 
 stitutionality ; and slighter relations to any declared ob- 
 ject may be permitted to turn the scale." From the cri- 
 terion thus indicated, it would seem that the distinguished 
 statesman was of opinion that a measure which did inter- 
 fere with a pre-existing right of a State or an individual 
 would not be constitutional. 
 
 The interpretation given by Mr. Hamilton was sub- 
 stantially followed by Chief Justice Marshall in McCulloch 
 v. The State of Maryland, when, speaking for the court, he 
 said that if the end to be accomplished by the legislation 
 of Congress be legitimate, and within the scope of the 
 Constitution, " all the means which are appropriate, which 
 are plainly adapted to that end, and which are not pro- 
 hibited, but are consistent with the letter and spirit of 
 the Constitution, are constitutional." The Chief Justice 
 did not, it is true, in terms declare that legislation which 
 is not thus appropriate, and plainly adapted to a lawful 
 end, is unconstitutional, but such is the plain import of 
 the argument advanced by him; and that conclusion 
 must also follow from the principle that, when legislation 
 of a particular character is specially authorized, the op- 
 posite of such legislation is inhibited. 
 
 Tested by the rule given by Mr. Hamilton, or by the 
 
11 
 
 rule thus laid down by this court through Mr. Chief Jus- 
 tice Marshall, the annexing of a quality to the promises 
 of the government for money borrowed, which will en- 
 able the holder to use them as a means of satisfying the 
 demands of third parties, cannot be sustained as the 
 exercise of an appropriate means of borrowing. That is 
 only appropriate which has some relation of fitness to an 
 end. Borrowing, as already stated, is a transaction by 
 which, on one side, the lender parts with his money, and 
 on the other the borrower agrees to repay it in such form 
 and at such time as may be stipulated. Though not a 
 necessary part of the contract of borrowing, it is usual 
 for the borrower to offer securities for the repayment of 
 the loan. The fitness which would render a means ap- 
 propriate to this transaction thus considered must have 
 respect to the terms which are essential to the contract, 
 or to the securities which the borrower may furnish as an 
 inducement to the loan. The quality of legal tender 
 does not touch the terms of the contract of borrowing, 
 nor does it stand as a security for the loan. A security 
 supposes some right or interest in the thing pledged, 
 which is subject to the disposition of the borrower. 
 
 There has been much confusion on this subject from a 
 failure to distinguish between the adaptation of particular 
 means to an end and the effect, or supposed effect, of those 
 means in producing results desired by the government. 
 The argument is stated thus: the object of borrowing is 
 to raise funds; the annexing of the quality of legal tender 
 to the notes of the government induces parties the more 
 readily to loan upon them ; the result desired by the gov- 
 ernment the acquisition of funds is thus accomplished ; 
 therefore, the annexing of the quality of legal tender is 
 an appropriate means to the execution of the power to 
 borrow. But it is evident that the same reasoning would 
 justify, as appropriate means to the execution of this 
 power, any measures which would result in obtaining the 
 required funds. The annexing of a provision by which 
 
12 
 
 the notes of the government should serve as a free ticket 
 in the public conveyances of the country, or for ingress 
 into places of public amusement, or which would entitle 
 the holder to a percentage out of the revenues of private 
 corporations, or exempt his entire property, as well as 
 the notes themselves, from State and municipal taxation, 
 would produce a ready acceptance of the notes. But the 
 advocate of the most liberal construction would hardly 
 pretend that these measures, or similar measures touch- 
 ing the property of third parties, would be appropriate as 
 a means to the execution of the power to borrow. Indeed, 
 there is no invasion by government of the rights of third 
 parties which might not thus be sanctioned upon the pre- 
 tence that its allowance to the holder of the notes would 
 lead to their ready acceptance and produce the desired loan. 
 
 The actual effect of the quality of legal tender in induc- 
 ing parties to receive them was necessarily limited to the 
 amount required by existing debtors, who did not scruple 
 to discharge with them their pre-existing liabilities. For 
 moneys desired from other parties, or supplies required 
 for the use of the army or navy, the provision added 
 nothing to the value of the notes. Their borrowing 
 power or purchasing power depended, by a general and 
 a universal law of currency, not upon the legal-tender 
 clause, but upon the confidence which the parties receiv- 
 ing the notes had in their ultimate payment. Their ex- 
 changeable value was determined by this confidence, and 
 every person dealing in them advanced his money and 
 regulated his charges accordingly. 
 
 The inability of mere legislation to control this uni- 
 versal law of currency is strikingly illustrated by the 
 history of the bills o credit issued by the Continental 
 Congress during our Revolutionary War. From June, 
 1775, to March, 1780, these bills amounted to over 
 $300,000,000. Depreciation followed as a natural con- 
 sequence, commencing in 1777, when the issues only 
 equalled $14,000,000. Previous to this time, in January, 
 
13 
 
 1776, when the issues were only $5,000,000, Congress had, 
 by resolution, declared that if any person should be "so 
 lost to all virtue and regard to his country " as to refuse 
 to receive the bills in payment, he should, on conviction 
 thereof by the committee of the city, county, or district, 
 or, in case of appeal from their decision, by the assembly, 
 convention, council, or committee of safety of the colony 
 where he resided, be " deemed, published, and treated as 
 an enemy of his country, and precluded from all trade or 
 intercourse with the inhabitants" of the colonies. (2 
 Journals of Congress, 21.) 
 
 And in January, 1777, when as yet the issues were only 
 $14,000,000, Congress passed this remarkable resolution : 
 
 "Resolved, That all bills of credit emitted by authority 
 of Congress ought to pass current in all payments, trade, 
 and dealings in these States, and be deemed in value 
 equal to the same nominal sums in Spanish milled 
 dollars, and that whosoever shall offer, ask, or receive 
 more in the said bills for any gold or silver coins, bul- 
 lion, or any other species of money whatsoever, than the 
 nominal sum or amount thereof in Spanish milled dollars, 
 or more in the said bills for any lands, houses, goods, or 
 commodities whatever than the same could be purchased 
 at of the same person or persons in gold, silver, or any 
 other species of money whatsoever, or shall offer to sell 
 any goods or commodities for gold or silver coins or any 
 other species of money whatsoever and refuse to sell the 
 same for the said continental bills, every such person 
 ought to be deemed an enemy to the liberty of these 
 United States and to forfeit the value of the money so 
 exchanged, or house, land, or commodity so sold or offered 
 for sale. And it is recommended to the legislatures of the 
 respective States to enact laws inflicting such forfeitures 
 and other penalties on offenders as aforesaid as will pre- 
 vent such pernicious practices. That it be recommended 
 to the legislatures of the United States to pass laws to 
 make the bills of credit issued by the Congress a lawful 
 
14 
 
 tender in payments of public and private debts, and a re- 
 fusal thereof an extinguishment of such debts; that debts 
 payable in sterling money be discharged with continen- 
 tal dollars at the rate of 4s. 6d sterling per dollar, and 
 that in discharge of all other debts and contracts conti- 
 nental dollars pass at the rate fixed by the respective 
 States for the value of Spanish milled dollars." 
 
 The several States promptly responded to the recom- 
 mendations of Congress, and made the bills a legal tender 
 for debts and the refusal to receive them an extinguish- 
 ment of the debt. 
 
 Congress also issued, in September, 1779, a circular ad- 
 dressed to the people on the subject, in which they showed 
 that the United States would be able to redeem the bills, 
 and they repelled with indignation the suggestion that 
 there could be any violation of the public faith. " The 
 pride of America," said the address, "revolts from the 
 idea ; her citizens know for what purposes these emissions 
 were made and have repeatedly plighted their faith for 
 the redemption of them ; they are to be found in every 
 man's possession, and every man is interested in their 
 being redeemed ; they must, therefore, entertain a high 
 opinion of American credulity who suppose the people 
 capable of believing, on due reflection, that all America 
 will, against the faith, the honor, and the interest of all 
 America, be ever prevailed upon to countenance, support, 
 or permit so ruinous, so disgraceful, a measure. We are 
 convinced that the efforts and arts of our enemies will 
 not be wanting to draw us into this humiliating and con- 
 temptible situation. Impelled by malice and the sug- 
 gestions of chagrin and disappointment at not being able 
 to bend our necks to the yoke, they will endeavor to force 
 or seduce us to commit this unpardonable sin in order to 
 subject us to the punishment due to it, and that we may 
 thenceforth be a reproach and a byword among the na- 
 tions. Apprised of these consequences, knowing the 
 value of national character, and impressed with a due 
 
15 
 
 sense of the immutable laws of justice and honor, it is 
 impossible that America should think without horror of 
 such an execrable deed." * (5 Journals of Congress, p. 351 .) 
 
 Yet in spite of the noble sentiments contained in this 
 address, which bears the honored name of John Jay, then 
 President of Congress and afterwards the first Chief Jus- 
 tice of this court, and in spite of legal tender provisions 
 and harsh penal statutes, the universal law of currency 
 prevailed. Depreciation followed until it became so great 
 that the very idea of redemption at par was abandoned. 
 
 Congress then proposed to take up the bills by issuing 
 new bills on the credit of the several States, guaranteed 
 by the United States, not exceeding one-twentieth of the 
 amount of the old issue, the new bills to draw interest 
 and be redeemable in six years. But the scheme failed, 
 and the bills became, during 1780, of so little value that 
 they ceased to circulate, and "quietly died," says the his- 
 torian of the period, " in the hands of their possessors." 
 (Pitkin's History, vol. 2, p. 157.) 
 
 And it is within the memory of all of us that during 
 the late rebellion the notes of the United States issued 
 under the Legal-tender Act rose in value in the market 
 as the successes of our arms gave evidence of an early 
 termination of the war, and that they fell in value with 
 every triumph of the Confederate forces. No legislation 
 of Congress declaring these notes to be money instead of 
 representatives of money or credit could alter this result 
 one jot or tittle. Men measured their value not by Con- 
 gressional declaration, which could not alter the nature 
 of things, but by the confidence reposed in their ultimate 
 payment. 
 
 Without the legal tender provision the notes would 
 have circulated equally well and answered all the pur- 
 poses of government the only direct benefit resulting 
 from that provision arising, as already stated, from the 
 
 *This address was written by Mr. Jay. (See Flanders' Lives and 
 Times of the Chief Justices, vol. 1, p. 256.) 
 
10 
 
 ability it conferred upon unscrupulous debtors to discharge 
 with them previous obligations. The notes of State banks 
 circulated without possessing that quality and supplied 
 a currency for the people just so long as confidence in the 
 ability of the banks to redeem the notes continued. The 
 notes issued by the national bank associations during the 
 war, under the authority of Congress, amounting to 
 $300,000,000, which were never made a legal tender, cir- 
 culated equally well with the notes of the United States, 
 Neither their utility nor their circulation was diminished 
 in any degree by the absence of a legal tender quality. 
 They rose and fell in the market under the same influences 
 and precisely to the same extent as the notes of the United 
 States, which possessed this quality. 
 
 It is foreign, however, to my argument to discuss the 
 utility of the legal-tender clause. The utility of a meas- 
 ure is not the subject of judicial cognizance, nor, as al- 
 ready intimated, the test of its constitutionality. But the 
 relation of the measure as a means to an end, authorized 
 by the Constitution, is a subject of such cognizance, and 
 the test of its constitutionality, when it is not prohibited 
 by any specific provision of that instrument, and is con- 
 sistent with its letter and spirit. "The degree," said 
 Hamilton, "in which a measure is necessary can never 
 be a test of the legal right to adopt it. That must be a 
 matter of opinion, and can only be a test of expediency. 
 The relation between the means and the end, between the 
 nature of a means employed toward the execution of the 
 power and the object of that power, must be the criterion 
 of unconstitutionality; not the more or less of necessity 
 or utility." 
 
 If this were not so,- if Congress could not only exercise, 
 as it undoubtedly may, unrestricted liberty of choice 
 among the means which are appropriate and plainly 
 adapted to the execution of an express power, but could 
 also judge, without its conclusions being subject to ques- 
 tion in cases involving private rights, what means are 
 
17 
 
 thus appropriated and adapted, our government would be, 
 not what it was intended to be, one of limited, but one of 
 unlimited powers. 
 
 Of course, Congress must inquire in the first instance 
 and determine for itself not only the expediency, but the 
 fitness to the end intended, of every measure adopted by 
 its legislation. But the power of this tribunal to revise 
 these determinations in cases involving private rights 
 has been uniformly asserted, since the formation of the 
 Constitution to this day, by the ablest statesmen and 
 jurists of the country. 
 
 I have thus dwelt at length upon the clause of the Con- 
 stitution investing Congress with the power to borrow 
 money on the credit of the United States, because it is 
 under that power that the notes of the United States were 
 issued, and it is upon the supposed enhanced value 
 which the quality of legal tender gives to such notes, as 
 the means of borowing, that the validity and constitu- 
 tionality of the provision annexing this quality are 
 founded. It is true that, in the arguments of counsel, and 
 in the several opinions of different State courts, to which 
 our attention has been called, and in the dissenting opin- 
 ion in Hepburn v. Griswold, reference is also made to other 
 powers possessed by Congress, particularly to declare war, 
 to suppress insurrection, to raise and support armies, and 
 to provide and maintain a navy; all of which were called 
 into exercise and severely taxed at the time the Legal- 
 tender Act was passed. But it is evident that the notes 
 have no relation to these powers, or to any other powers 
 of Congress, except as they furnish a convenient means for 
 raising money for their execution. The existence of the 
 war only increased the urgency of the government for 
 funds. It did not add to its powers to raise such funds, 
 or change, in any respect, the nature of those powers 
 or the transactions which they authorized. If the 
 power to engraft the quality of legal tender upon the 
 notes existed at all with Congress, the occasion, the ex- 
 2 
 
18 
 
 tent, and the purpose of its exercise were mere matters of 
 legislative discretion; and the power may be equally ex- 
 erted when a loan is made to meet the ordinary expenses 
 of government in time of peace, as when vast sums are 
 needed to raise armies and provide navies in time of war. 
 The wants of the government can never be the measure 
 of its powers. 
 
 The Constitution has specifically designated the means 
 by which funds can be raised for the uses of the govern- 
 ment, either in war or peace. These are taxation, borrow- 
 ing, coining, and the sale of its public property. Congress 
 is empowered to levy and collect taxes, duties, imposts, 
 and excises to any extent which the public necessities may 
 require. Its power to borrow is equally unlimited. It 
 can convert any bullion it may possess into coin, and it 
 can dispose of the public lands and other property of the 
 United States or any part of such property. The desig- 
 nation of these means exhausts the powers of Congress 
 on the subject of raising money. The designation of the 
 means is a negation of all others, for the designation would 
 be unnecessary and absurd if the use of any and all means 
 were permissible without it. These means exclude a 
 resort to forced loans, and to any compulsory interference 
 with the property of third persons, except by regular taxa- 
 tion in one of the forms mentioned. 
 
 But this is not all. The power "to coin money" is, in 
 my judgment, inconsistent with and repugnant to the ex- 
 istence of a power to make anything but coin a legal tender. 
 To coin money is to mould metallic substances having in- 
 trinsic value into certain forms convenient for commerce, 
 and to impress them with the stamp of the government 
 indicating their value.- Coins are pieces of metal, of defi- 
 nite weight and value, thus stamped by national authority. 
 Such is the natural import of the terms "to coin money" 
 and " coin ; " and if there were any doubt that this is their 
 meaning in the Constitution, it would be removed by the 
 language which immediately follows the grant of the 
 
19 
 
 " power to coin," authorizing Congress to regulate the value 
 of the money thus coined, arid also "of foreign coin," and 
 by the distinction made in other clauses between coin and 
 the obligations of the general government and of the sev- 
 eral States. 
 
 The power of regulation conferred is the power to de- 
 termine the weight and purity of the several coins struck, 
 and their consequent relation to the monetary unit which 
 might be established by the authority of the govern- 
 ment a power which can be exercised with reference to 
 the metallic coins of foreign countries, but which is in- 
 capable of execution with reference to their obligations or 
 securities. 
 
 Then, in the clause of the Constitution immediately 
 following, authorizing Congress "to provide for the pun- 
 ishment of counterfeiting the securities and current coin 
 of the United States," a distinction between the obliga- 
 tions and coins of the general government is clearly made. 
 And in the tenth section, which forbids the States to " coin 
 money, emit bills of credit, and make anything but gold 
 and silver coin a tender in payment of debts," a like dis- 
 tinction is made between coin and the obligations of the 
 several States. The terms gold and silver as applied to 
 the coin exclude the possibility of any other conclusion. 
 
 Now, money in the true sense of the term is not only a 
 medium of exchange, but it is a standard of value by 
 which all other values are measured. Blackstone says, 
 and Story repeats his language, " Money is a universal 
 medium or common standard, by a comparison with 
 which the value of all merchandise may be ascertained, 
 or it is a sign which represents the respective values of 
 all commodities." (1 Blackstone's Commentaries, 276; 1 
 Story on the Constitution, 1118.) Money being such 
 standard, its coins or pieces are necessarily a legal tender 
 to the amount of their respective values for all contracts 
 or judgments payable in money, without any legislative 
 enactment to make them so. The provisions in the dif- 
 
20 
 
 ferent coinage acts that the coins to be struck shall be 
 such legal tender, are merely declaratory of their effect 
 when offered in payment, and are not essential to give 
 them that character. 
 
 The power to coin money is, therefore, a power to fabri- 
 cate coins out of metal as money, and thus make them a 
 legal tender for their declared values as indicated by their 
 stamp. If this be the true import and meaning of the 
 language used, it is difficult to see how Congress can make 
 the paper of the government a legal tender. When the 
 Constitution says that Congress shall have the power to 
 make metallic coins a legal tender, it declares in effect 
 that it shall make nothing else such tender. The affirma- 
 tive grant is here a negative of all other power over the 
 subject. 
 
 Besides this, there cannot well be two different stand- 
 ards of value, and consequently two kinds of legal- tender 
 for the discharge of obligations arising from the same 
 transactions. The standard or tender of the lower actual 
 value would in such case inevitably exclude and super- 
 sede the other, for no one would use the standard or tender 
 of high value when his purpose could be equally well 
 accomplished by the use of the other. A practical illus- 
 tration of the truth of this principle we have all seen in 
 the effect upon coin of the act of Congress making the 
 notes of the United States a legal tender. It drove coin 
 from general circulation, and made it, like bullion, the 
 subject of sale and barter in the market. 
 
 The inhibition upon the States to coin money and yet 
 to make anything but gold and silver coin a tender in 
 payment of debts, must be read in connection with the 
 grant of the coinage "power to Congress. The two pro- 
 visions taken together indicate beyond question that the 
 coins which the National government was to fabricate, 
 and the foreign coins, the valuation of which it was to 
 regulate, were to consist principally, if not entirely, of gold 
 and silver. 
 
21 
 
 The framers of the Constitution were considering the 
 subject of money to be used throughout the entire Union 
 when these provisions were inserted, and it is plain that 
 they intended by them that metallic coins fabricated by 
 the National government, or adopted from abroad by its 
 authority, composed of the precious metals, should every- 
 where be the standard and the only standard of value by 
 which exchanges could be regulated and payments made. 
 
 At that time gold and silver moulded into forms con- 
 venient for use, and stamped with their value by public 
 authority, constituted, with the exception of pieces of 
 copper for small values, the money of the entire civilized 
 world. Indeed, these metals, divided up and thus 
 stamped, always have constituted nioney with all people 
 having any civilization, from the earliest periods in the 
 history of the world down to the present time. It was 
 with " four hundred shekels of silver, current money with 
 the merchant," that Abraham bought the field of Mach- 
 pelah, nearly four thousand years ago. (Genesis, 23: 16.) 
 This adoption of the precious metals as the subject of 
 coinage the material of money by all peoples in all 
 ages of the world has not been the result of any vaga- 
 ries of fancy, but is attributable to the fact that they of 
 all metals alone possess the properties which are essential 
 to a circulating medium of uniform value. 
 
 "The circulating medium of a commercial community," 
 says Mr. Webster, " must be that which is also the circu- 
 lating medium of other commercial communities, or must 
 be capable of being converted into that medium without 
 loss. It must also be able not only to pass in payments 
 and receipts among individuals of the same society and 
 nation, but to adjust and discharge the balance of ex- 
 changes between different nations. It must be something 
 which has a value abroad as well as at home, by which 
 foreign as well as domestic debts can be satisfied. The 
 precious metals alone answer these purposes. They alone, 
 therefore, are money, and whatever else is to perform the 
 
22 
 
 functions of money must be their representative and 
 capable of being turned into them at will. So long as 
 bank paper retains this quality it is a substitute for 
 money. Divested of this nothing can give it that char- 
 acter." (Webster's Works, vol. 3, page 41.) 
 
 The statesmen who framed the Constitution understood 
 this principle as well as it is understood in our day. 
 They had seen in the experience of the Revolutionary 
 period the demoralizing tendency, the cruel injustice, and 
 the intolerable oppression of a paper currency not con- 
 vertible on demand into money, and forced into circula- 
 tion by legal tender provisions and penal enactments. 
 When they, therefore, were constructing a government for 
 a country, which they could not fail to see was destined 
 to be a mighty empire, and have commercial relations 
 with all nations, a government which they believed was 
 to endure for ages, they determined to recognize in the 
 fundamental law, as the standard of value, that which 
 ever has been and always must be recognized by the 
 world as the true standard, and thus facilitate commerce, 
 protect industry, establish justice, and prevent the possi- 
 bility of a recurrence of the evils which they had experi- 
 enced and the perpetration of the injustice which they 
 had witnessed. "We all know," says Mr. Webster, "that 
 the establishment of a sound and uniform currency was 
 one of the greatest ends contemplated in the adoption of 
 the present Constitution. If we could now fully explore 
 all the motives of those who framed and those who sup- 
 ported that Constitution, perhaps we should hardly find 
 a more powerful one than this." (Webster's Works, vol. 3, 
 p. 395.) 
 
 And how the frames of the Constitution endeavored 
 to establish this " sound and uniform currency " we have 
 already seen in the clauses which they adopted providing 
 for a currency of gold and silver coins. Their determina- 
 tion to sanction only a metallic currency is further evi- 
 dent from the debates in the Convention upon the propo- 
 
23 
 
 sition to authorize Congress to emit bills on the credit of 
 the United States. By bills of credit, as the terms were 
 then understood, were meant paper issues, intended to 
 circulate through the community for its ordinary pur- 
 poses as money, bearing upon their face the promise of 
 the government to pay the sums specified thereon at a 
 future day. The original draft contained a clause giving 
 to Congress power " to borrow money and emit bills on 
 the credit of the United States," and when the clause 
 came up for consideration, Mr. Morris moved to strike 
 out the words " and emit bills on the credit of the United 
 States," observing that " if the United States had credit, 
 such bills would be unnecessary; ift hey had not, unjust 
 and useless." Mr. Madison inquired whether it would 
 not be "sufficient to prohibit the making them a legal 
 tender." " This will remove," he said, " the temptation to 
 emit them with unjust views, and promissory notes in 
 that shape may in some emergencies be best." Mr. Morris 
 replied that striking out the words would still leave room 
 for "notes of a responsible minister," which would do "all 
 the good without the mischief." Mr. Gorham was for 
 striking out the words without inserting any prohibition. 
 If the words stood, he said, they might " suggest and lead 
 to the measure ; " and that the power, so far as it was ne- 
 cessary or safe, w r as "involved in that of borrowing." Mr. 
 Mason said he was unwilling "to tie the hands of Con- 
 gress," and thought Congress " would not have the power 
 unless it were expressed." Mr. Ellsworth thought it "a 
 favorable moment to shut and bar the door against paper 
 money." "The mischiefs," he said, "of the various ex- 
 periments which had been made were now fresh in the 
 public mind and had excited the disgust of all the re- 
 spectable part of America, By withholding the power 
 from the new government, more friends of influence 
 would be gained to it than by almost anything else. 
 Paper money can in no case be necessary. Give the gov- 
 ernment credit, and other resources will offer. The power 
 
24 
 
 may do harm, never good." Mr. Wilson thought that 
 " it would have a most salutary influence on the credit of 
 the United States to remove the possibility of paper 
 money." "This expedient," he said, "can never succeed 
 whilst its mischiefs are remembered, and as long as it 
 can be resorted to it will be a bar to other resources." 
 Mr. Butler was urgent for disarming the government of 
 such a power, and remarked "that paper was a legal 
 tender in no country in Europe." Mr. Mason replied 
 that if there was no example in Europe there was none 
 in which the government was restrained on this head, 
 and he was averse " to tying up the hands of the legisla- 
 ture altogether." Mr. Langdon preferred to reject the 
 whole plan than retain the words. 
 
 Of those who participated in the debates, only one, Mr. 
 Mercer, expressed an opinion favorable to paper money, 
 and none suggested that if Congress were allowed to issue 
 the bills their acceptance should be compulsory that is, 
 that they should be made a legal tender. But the words 
 were stricken out by a vote of nine States to two. Vir- 
 ginia voted for the motion, and Mr. Madison has appended 
 a note to the debates, stating that her vote was occasioned 
 by his acquiescence, and that he " became satisfied that 
 striking out the words would not disable the government 
 from the use of public notes, as far as they could be safe 
 and proper; and would only cut off the pretext for a 
 paper currency and particularly for making the bills a 
 tender either for public or private debts." (Madison Papers, 
 vol. 3, page 1346.) 
 
 If anything is manifest from these debates it is that the 
 members of the Convention intended to withhold from 
 Congress the power to-issue bills to circulate as money 
 that is, to be receivable in compulsory payment, or, in 
 other words, having the quality of legal tender and that 
 the express power to issue the bills was denied, under an 
 apprehension that if granted it would give a pretext to 
 Congress, under the idea of declaring their effect, to annex 
 
25 
 
 to them that quality. The issue of notes simply as a 
 means of borrowing money, which of course would leave 
 them to be received at the option of parties, does not ap- 
 pear to have been seriously questioned. The circulation 
 of notes thus issued as a voluntary currency, and their 
 receipt in that character in payment of taxes, duties, and 
 other public expenses, was not subject to the objections 
 urged. 
 
 I am aware of the rule that the opinions and intentions 
 of individual members of the Convention, as expressed 
 in its debates and proceedings, are not to control the con- 
 struction of the plain language of the Constitution or 
 narrow down the powers which that instrument confers. 
 Members, it is said, who did not participate in the debate 
 may have entertained different views from those expressed. 
 The several State conventions to which the Constitution 
 was submitted may have differed widely from each other 
 and from its framers in their interpretation of its clauses. 
 We all know that opposite opinions on many points were 
 expressed in the conventions, and conflicting reasons were 
 urged both for the adoption and the rejection of that in- 
 strument. All this is very true, but it does not apply in 
 the present case, for on the subject now under considera- 
 tion there was everywhere, in the several State conven- 
 tions and in the discussions before the people, an entire 
 uniformity of opinion, so far as we have any record of its 
 expression, and that concurred with the intention of the 
 Convention, as disclosed by its debates, that the Constitu- 
 tion withheld from Congress all power to issue bills to 
 circulate as money, meaning by that bills made receivable 
 in compulsory payment, or, in other words, having the 
 quality of legal tender. Every one appears to have un- 
 derstood that the power of making paper issues a legal 
 tender, by Congress or by the States, was absolutely and 
 forever prohibited. 
 
 Mr. Luther Martin, a member of the Convention, in 
 his speech before the Maryland legislature. 
 
26 
 
 his letter to that body, states the arguments urged against 
 depriving Congress of the power to emit bills of credit, 
 and then says that a "majority of the Convention, being 
 wise beyond every event and being willing to risk any 
 political evil rather than admit the idea of a paper emis- 
 sion in any possible case, refused to trust this authority 
 to a government to which they were lavishing the most 
 unlimited powers of taxation and to the mercy of which 
 they were willing blindly to trust the liberty and prop- 
 erty of the citizens of every State in the Union, and they 
 erased that clause from the system" 
 
 Not only was this construction given to the Constitu- 
 tion by its framers and the people in their discussions at 
 the time it was pending before them, but until the pas- 
 sage of the act of 1862, a period of nearly three-quarters 
 of a century, the soundness of this construction was 
 never called in question by any legislation of Congress or 
 the opinion of any judicial tribunal. Numerous acts, as 
 already stated, were passed during this period, authoriz- 
 ing the issue of notes for the purpose of raising funds or 
 obtaining supplies, but in none of them was the acceptance 
 of the notes made compulsory. Only one instance have 
 I been able to find in the history of Congressional pro- 
 ceedings where it was even suggested that it was within 
 the competency of Congress to annex to the notes the 
 quality of legal tender, and this occurred in 1814. The 
 government was then greatly embarrassed from the want 
 of funds to continue the war existing with Great Britain, 
 and a member from Georgia introduced into the House 
 of Representatives several resolutions directing an inquiry 
 into the expediency of authorizing the Secretary of the 
 Treasury to issue notes convenient for circulation and 
 making provision for the purchase of supplies in each 
 State. Among the resolutions was one declaring that the 
 notes to be issued should be a legal tender for debts due 
 or subsequently becoming due between citizens of the 
 United States and between citizens and foreigners. The 
 
27 
 
 House agreed to consider all the resolutions but the one 
 containing the legal tender provision. That it refused to 
 consider by a vote of more than two to one. (Benton's 
 Abridg. vol. 5, p. 361.) 
 
 As until the act of 1862 there was no legislation mak- 
 ing the acceptance of notes issued on the credit of the 
 United States compulsory, the construction of the clause 
 of the Constitution containing the grant of the coinage 
 power never came directly before this court for consider- 
 ation, and the attention of the court was only incidentally 
 drawn to it. But whenever the court spoke on the sub- 
 ject, even incidentally, its voice was in entire harmony 
 with that of the Convention. 
 
 Thus, in Gwin v. Breedlove, (2 How. 38,) where a 
 marshal of Mississippi, commanded to collect a certain 
 amount of dollars on execution, received the amount in 
 bank notes, it was held that he was liable to the plaintiff 
 in gold and silver. " By the Constitution of the United 
 States," said the court, "gold or silver coin made current 
 by law can only be tendered in payment of debts." 
 
 And in the case of United States v. Marigold, (9 How. 
 567,) where the question arose whether Congress had 
 power to enact certain provisions of law for the punish- 
 ment of persons bringing into the United States counter- 
 feit coin with intent to pass it, the court said : These pro- 
 visions "appertain to the execution of an important trust 
 invested by the Constitution, and to the obligation to fulfil 
 that trust on the part of the government, namely, the 
 trust and the duty of creating and maintaining a uniform 
 and pure metallic standard of value throughout the Union. 
 The power of coining money and of regulating its value 
 was delegated to Congress by the Constitution for the very 
 purpose, as assigned by the framers of that instrument, of 
 creating and preserving the uniformity and purity of such 
 a standard of value, and on account of the impossibility 
 which was foreseen of otherwise preventing the inequali- 
 ties and the confusion necessarily incident to different 
 
28 
 
 views of policy, which in different communities would be 
 brought to bear on this subject. The power to coin money 
 being thus given to Congress, founded on public necessity, 
 it must carry with it the correlative power of protecting 
 the creature and object of that power." 
 
 It is difficult to perceive how the trust and duty here 
 designated, of " creating and maintaining a uniform and 
 metallic standard of value throughout the Union," is dis- 
 charged, when another standard of lower value and fluc- 
 tuating character is authorized by law, which necessarily 
 operates to drive the first from circulation. 
 
 In addition to all the weight of opinion I have men- 
 tioned we have, to the same purport, from the adoption 
 of the Constitution up to the passage of the act of 1862, 
 the united testimony of the leading statesmen and jurists 
 of the country. Of all the men who, during that period, 
 participated with any distinction in the councils of the 
 nation, not one can be named who ever asserted any dif- 
 ferent power in Congress than what I have mentioned. 
 As observed by the Chief Justice, statesmen who disagreed 
 widely on other points agreed on this. 
 
 Mr. Webster, who has always been regarded by a large 
 portion of his countrymen as one of the ablest and most 
 enlightened expounders of the Constitution, did not seem 
 to think there was any doubt on the subject, although he 
 belonged to the class who advocated the largest exercise 
 of powers by the general government. From his first 
 entrance into public life, in 1812, he gave great considera- 
 tion, to the subject of the currency, and in an elaborate 
 speech in the Senate, in 1836, he said : " Currency, in a large 
 and perhaps just sense, includes not only gold and silver 
 and bank bills, but bills of exchange also. It may in- 
 clude all that adjusts exchanges and settles balances in 
 the operations of trade and business ; but, if we under- 
 stand by currency the legal money of the country, and 
 that which constitutes a lawful tender for debts, and is 
 the statute measure of value, then undoubtedly nothing 
 
29 
 
 is included but gold and silver. Most unquestionably 
 there is no legal tender, and there can be no legal tender 
 in this country, under the authority of this government 
 or any other, but gold and silver either the coinage of 
 our own mints or foreign coins, at rates regulated by Con- 
 gress. This is a constitutional principle perfectly plain, 
 and of the very highest importance. The States are ex- 
 pressly prohibited from making anything but gold and 
 silver a tender in payment of debts, and, although no 
 such express prohibition is applied to Congress, yet, as 
 Congress has no power granted to it in this respect but 
 to coin money, and to regulate the value of foreign coins, 
 it clearly has no power to substitute paper, or anything 
 else, for coin as a tender in payment of debts and in dis- 
 charge of contracts. Congress has exercised this power 
 fully in both its branches. It has coined money, and 
 still coins it; it has regulated the value of foreign coins, 
 and still regulates their value. The legal tender, there- 
 fore, the constitutional standard of value, is established 
 and cannot be overthrown. To overthrow it would shake 
 the whole system." 
 
 If, now, we consider the history of the times when the 
 Constitution was adopted ; the intentions of the framers of 
 that instrument, as shown in their debates; the contem- 
 poraneous exposition of the coinage power in the State 
 conventions assembled to consider the Constitution, and 
 in the public discussions before the people; the natural 
 meaning of the terms used ; the nature of the Constitution 
 itself as creating a government of enumerated powers ; the 
 legislative exposition of nearly three-quarters of a century ; 
 the opinions of judicial tribunals, and the recorded ut- 
 terances of statesmen, jurists, and commentators, it would 
 seem impossible to doubt that the only standard of value 
 authorized by the Constitution was to consist of metallic 
 coins struck or regulated by the direction of Congress, 
 and that the power to establish any other standard was 
 denied by that instrument. 
 
30 
 
 There are other considerations besides those I have 
 stated, which are equally convincing against the constitu- 
 tionality of the legal tender provision of the act of Febru- 
 ary 25, 1862, so far as it applies to private debts and debts 
 by the government contracted previous to its passage. 
 That provision operates directly to impair the obligation 
 of such contracts. In the dissenting opinion, in the case 
 of Hepburn v. Griswold, this is admitted to be its operation, 
 and the position is taken that, while the Constitution for- 
 bids the States to pass such laws, it does not forbid Congress 
 to do this, and the power to establish a uniform system of 
 bankruptcy, which is expressly conferred, is mentioned 
 in support of the position. In some of the opinions of the 
 State courts, to which our attention has been directed, it is 
 denied that the provision in question impairs the obliga- 
 tion of previous contracts, it being asserted that a contract 
 to pay money is satisfied, according to its meaning, by the 
 payment of that which is money when the payment is 
 made, and that if the law does not interfere with this mode of 
 satisfaction, it does not impair the obligation of the contract. 
 This position is true so long as the term money represents 
 the same thing in both cases or their actual equivalents, but 
 it is not true when the term has different meanings. Money 
 is a generic term, and contracts for money are not made 
 without a specification of the coins or denominations of 
 money, and the number of them intended, as eagles, dollars, 
 or cents ; and it will not be pretended that a contract for a 
 specified number of eagles can be satisfied by a delivery 
 of an equal number of dollars, although both eagles and 
 dollars are money; nor would it thus be contended, 
 though at the time the contract matured the legislature 
 had determined to call dollars eagles. Contracts are 
 made for things, not names or sounds, and the obligation 
 of a contract arises from its terms and the means which 
 the law affords for its enforcement. 
 
 A law which changes the terms of the contract, either 
 in the time or mode of performance, or imposes new con- 
 
31 
 
 ditions, or dispenses with those expressed, or authorizes 
 for its satisfaction something different from that provided, 
 is a law which impairs its obligation, for such a law re- 
 lieves the parties from the moral duty of performing the 
 original stipulations of the contract, and it prevents their 
 legal enforcement. 
 
 The notion that contracts for the payment of money 
 stand upon any different footing in this respect from 
 other contracts appears to have had its origin in certain 
 old English cases, particularly that of mixed money, 
 (Davies's Reports, 48,) which were decided upon the 
 force of the prerogative of the king with respect to coin, 
 and have no weight as applied to powers possessed by 
 Congress under our Constitution. The language of Mr. 
 Chief Justice Marshall in Faw v. Marsteller, (2 Cranch, 20,) 
 which is cited in support of this notion, can only be made 
 to express concurrence with it when detached from its 
 context and read separated from the facts in reference to 
 which it was used. 
 
 It is obvious that the act of 1862 changes the terms of 
 contracts for the payment of money made previous to its 
 passage, in every essential particular. All such contracts 
 had reference to metallic coins, struck or regulated by 
 Congress, and composed principally of gold and silver, 
 which constituted the legal money of the country. The 
 several coinage acts had fixed the weight, purity, forms, 
 impressions, and denominations of these coins, and had 
 provided that their value should be certified by the form 
 and impress which they received at the mint. 
 
 They had established the dollar as the money unit, and 
 prescribed the grains of silver it should contain, and the 
 grains of gold which should compose the different gold 
 coins. Every dollar was therefore a piece of gold or silver 
 certified to be of a specified weight and purity, by its form 
 and impress. A contract to pay a specified number of 
 dollars was then a contract to deliver the designated num- 
 ber of pieces of gold or silver of this character; and by 
 
32 
 
 the laws of Congress and of the several States the delivery 
 of such dollars could be enforced by the holder. 
 
 The act of 1862 changes all this; it declares that gold 
 or silver dollars need not be delivered to the creditor ac- 
 cording to the stipulations of the contract; that they need 
 not be delivered at all; that promises of the United States, 
 with which the creditor has had no relations, to pay these 
 dollars, at some uncertain future day, shall be received in 
 discharge of the contracts in other words, that the holder 
 of such contracts shall take in substitution for them dif- 
 ferent contracts with another party, less valuable to him, 
 and surrender the original. 
 
 Taking it, therefore, for granted that the law plainly 
 impairs the obligation of such contracts, I proceed to in- 
 quire whether it is for that reason subject to any constitu- 
 tional objection. In the dissenting opinion in Hepburn 
 v. Griswold, it is said, as already mentioned, that the Con- 
 stitution does not forbid legislation impairing the obliga- 
 tion of contracts. 
 
 It is true there is no provision in the Constitution 
 forbidding in express terms such legislation. And it 
 it is also true that there are express powers delegated 
 to Congress, the execution of which necessarily operates 
 to impair the obligation of contracts. It was the object 
 of the framers of that instrument to create a National 
 government competent to represent the entire country 
 in its relations with foreign nations and to accom- 
 plish by its legislation measures of common interest 
 to all the people, which the several States in their 
 independent capacities were incapable of effecting, or if 
 capable, the execution of which would be attended with 
 great difficulty and embarrassment. They, therefore, 
 clothed Congress with all the powers essential to the 
 successful accomplishment of these ends, and care- 
 fully withheld the grant of all other powers. Some of 
 the powers granted, from their very nature, interfere in 
 their execution of contracts of parties. Thus war sus- 
 
33 
 
 pends intercourse and commerce between citizens or 
 subjects of belligerent nations; it renders during its con- 
 tinuance the performance of contracts previously made, 
 unlawful. These incidental consequences were contem- 
 plated in the grant of the war power. So the regulation 
 of commerce and the imposition of duties may so affect 
 the prices of articles imported or manufactured as to 
 essentially alter the value of previous contracts respect- 
 ing them ; but this incidental consequence was seen in 
 the grant of the power over commerce and duties. There 
 can be no valid objection to laws passed in execution of 
 express powers that consequences like these follow inci- 
 dentally from their execution. But it is otherwise when 
 such consequences do not follow incidentally, but are 
 directly enacted. 
 
 The only express authority for any legislation affect- 
 ing the obligation of contracts is found in the power to 
 establish a uniform system of bankruptcy, the direct ob- 
 ject of which is to release insolvent debtors from their 
 contracts upon the surrender of their property. From 
 this express grant in the Constitution I draw a very dif- 
 ferent conclusion from that drawn in the dissenting opin- 
 ion in Hepburn v. Griswold, and in the opinion of the ma- 
 jority of the court just delivered. To my mind it is a 
 strong argument that there is no general power in Con- 
 gress to interfere with contracts, that a special grant was 
 regarded as essential to authorize a uniform system of 
 bankruptcy. If such general power existed the delega- 
 tion of an express power in the case of bankrupts was 
 unnecessary. As very justly observed by counsel, if this 
 sovereign power could be taken in any case without ex- 
 press grant, it could be taken in connection with bank- 
 ruptcies, which might be regarded in some respects as a 
 regulation of commerce made in the interest of traders. 
 
 The grant of a limited power over the subject of 
 contracts necessarily implies that the framers of the Con- 
 stitution did not intend that Congress should exercise 
 
 3 
 
34 
 
 unlimited power, or any power less restricted. The limi- 
 tation designated is the measure of Congressional power 
 over the subject. This follows from the nature of the in- 
 strument as one of enumerated power. 
 
 The doctrine that where a power is not expressly for- 
 bidden it may be exercised, would change the whole 
 character of our government. As I read the writings of 
 the great commentators and the decisions of this court, 
 the true doctrine is the exact reverse, that if a power is 
 not in terms granted, and is not necessary and proper for 
 the exercise of a power thus granted, it does not exist. 
 
 The position that Congress possesses some undefined 
 power to do anything which it may deeem expedient, as 
 a resulting power from the general purposes of the gov- 
 ernment, which is advanced in the opinion of the majority, 
 would of course settle the question under consideration 
 without difficulty, for it would end all controversy by 
 changing our government from one of enumerated powers 
 to one resting in the unrestrained will of Congress. 
 
 "The government of the United States," says Mr. Chief 
 Justice Marshall, speaking for the court in Martin v. 
 Hunter's Lessee, (1 Wheat. 326,) " can claim no powers which 
 are not granted to it by the Constitution, and the powers 
 actually granted must be such as are expressly given or 
 given by necessary implication." This implication, it is 
 true, may follow from the grant of several express powers 
 as well as from one alone, but the power implied must, in 
 all cases, be subsidiary to the execution of the powers 
 expressed. The language of the Constitution respecting 
 the writ of habeas corpus, declaring that it shall not be 
 suspended unless, when in cases of rebellion or invasion, 
 the public safety may require it, is cited as showing that 
 the power to suspend such writ exists somewhere in the 
 Constitution; and the adoption of the amendments is 
 mentioned as evidence that important powers were un- 
 derstood by the people who adopted the Constitution to 
 have been created by it, which are not enumerated, and 
 are not included incidentally in any of those enumerated. 
 
35 
 
 The answer to this position is found in the nature of 
 the Constitution, as one of granted powers, as stated by 
 Mr. Chief Justice Marshall. The inhibition upon the 
 exercise of a specified power does not warrant the impli- 
 cation that, but for such inhibition, the power might have 
 been exercised. In the convention which framed the Con- 
 stitution a proposition to appoint a committee to prepare 
 a bill of rights was unanimously rejected, and it has been 
 always understood that its rejection was upon the ground 
 that such a bill would contain various exceptions to 
 powers not granted, and on this very account would 
 afford a pretext for asserting more than was granted. 
 (Journal of the Convention, 369 ; Story on the Constitu- 
 tion, 1861, 1862, and note.) In the discussions before 
 the people, when the adoption of the Constitution was 
 pending, no objection was urged with greater effect than 
 this absence of a bill of rights, and in one of the numbers 
 of the Federalist, Mr. Hamilton endeavored to combat 
 the objection. After stating several reasons why such a 
 bill was not necessary, he said : " I go further and affirm 
 that bills of rights, in the sense and to the extent they 
 are contended for, are not only unnecessary in the pro- 
 posed Constitution, but would even be dangerous. They 
 would contain various exceptions to powers not granted, 
 and on this very account would afford a colorable pretext 
 to claim more than were granted. For why declare that 
 things shall not be done which there is no power to do? 
 Why, for instance, should it be said that the liberty of 
 the press shall not be restrained when no power is given 
 by which restrictions may be imposed? I will not con- 
 tend that such a provision would confer a regulating 
 power, but it is evident that it would furnish to men dis- 
 posed to usurp a plausible pretence for claiming that 
 power. They might urge, with a semblance of reason, 
 that the Constitution ought not to be charged with the 
 absurdity of providing against the abuse of an authority 
 which was not given, and that the provision against re- 
 
36 
 
 straining the liberty of the press afforded a clear implica- 
 tion that a right to prescribe proper regulations concerning 
 it was intended to be vested in the National government. 
 This may serve as a specimen of the numerous handles 
 which would be given to the doctrine of constructive 
 powers by the indulgence of an injudicious zeal for bills 
 of right." (The Federalist, No. 84.) 
 
 When the amendments were presented to the States for 
 adoption they were preceded by a preamble stating that 
 the conventions of a number of the States had, at the time 
 of their adopting the Constitution, expressed a desire, " in 
 order to prevent misconception or abuse of its powers, 
 that further declaratory and restrictive clauses should be 
 added." 
 
 Now, will any one pretend that Congress could have 
 made a law respecting an establishment of religion, or 
 prohibiting the free exercise thereof, or abridging the 
 freedom of speech, or the right of the people to assemble 
 and petition the government for a redress of grievances, 
 had not prohibitions upon the exercise of any such legis- 
 lative power been embodied in an amendment ? 
 
 How truly did Hamilton say that had a bill of rights 
 been inserted in the Constitution, it would have given a 
 handle to the doctrine of constructive powers. We have 
 this day an illustration in the opinion of the majority of 
 the very claim of constructive power which he appre- 
 hended, and it is the first instance, I believe, in the his- 
 tory of this court when the possession by Congress of 
 such constructive power has been asserted. 
 
 The interference with contracts by the legislation of the 
 several States previous to the adoption of the Constitution 
 was the cause of great oppression and injustice. "Not 
 only," says Story, (Commentaries on the Constitution, 
 1371,) " was paper money issued and declared to be a ten- 
 der in payment of debts, but laws of another character, well 
 known under the appellation of tender laws, appraisement 
 laws, instalment laws, and suspension laws, were from 
 
37 
 
 time to time enacted, which prostrated all private credit 
 and all private morals. By some of these laws the due 
 payment of debts was suspended; debts were, in violation 
 of the very terms of the contract, authorized to be paid 
 by instalments at different periods; property of any sort, 
 however worthless, either real or personal, might be ten- 
 dered by the debtor in payment of his debts, and the 
 creditor was compelled to take the property of the debtor, 
 which he might seize on execution, at an appraisement 
 wholly disproportionate to its known value. Such griev- 
 ances and oppressions and others of a like nature were 
 the ordinary results of legislation during the Revolution- 
 ary War and the intermediate period down to the forma- 
 tion of the Constitution. They entailed the most enor- 
 mous evils on the country and introduced a system of 
 fraud, chicanery, and profligacy, which destroyed all pri- 
 vate confidence and all industry and enterprise." 
 
 To prevent the recurrence of evils of this character not 
 only was the clause inserted in the Constitution prohibit- 
 ing the States from issuing bills of credit and making 
 anything but gold and silver a tender in payment of 
 debts, but also the more general prohibition, from pass- 
 ing any law impairing the obligation of contracts. " To 
 restore public confidence completely," says Chief Justice 
 Marshall, (Sturgis v. Crowninshield, 4 Wheat. 206,) " it was 
 necessary not only to prohibit the use of particular means 
 by which it might be effected, but to prohibit the use of 
 any means by which the same mischief might be pro- 
 duced. The Convention appears to have intended to 
 establish a great principle, that contracts should be in- 
 violable." 
 
 It would require very clear evidence, one would sup- 
 pose, to induce a belief that with the evils resulting from 
 what Marshall terms the system of lax legislation follow- 
 ing the Revolution, deeply impressed on their minds, the 
 framers of the Constitution intended to vest in the new 
 government created by them this dangerous and despotic 
 4 
 
3S 
 
 power, which they were unwilling should remain with 
 the States, and thus widen the possible sphere of its exer- 
 cise. 
 
 When the possession of this power has been asserted in 
 argument (for until now it has never been asserted in 
 any decision of this court), it has been in cases where a 
 supposed public benefit resulted from the legislation, or 
 where the interference with the obligation of the contract 
 was very slight. Whenever a clear case of injustice, in 
 the absence of such supposed public good, is stated, the 
 exercise of the power by the government is not only de- 
 nounced but the existence of the power is denied. No 
 one, indeed, is found bold enough to contend that if A. 
 has a contract for one hundred acres of land, or one hun- 
 dred pounds of fruit, or one hundred yards of cloth, Con- 
 gress can pass a law compelling him to accept one-half 
 of the quantity in satisfaction of the contract. But Con- 
 gress has the same power to establish a standard of 
 weights and measures as it has to establish a standard of 
 value, and can, from time to time, alter such standard. 
 It can declare that the acre shall consist of eighty square 
 rods instead of one hundred and sixty, the pound of eight 
 ounces instead of sixteen, and the foot of six inches in- 
 stead of twelve, and if it could compel the acceptance of 
 the same number of acres, pounds, or yards, after such 
 alteration, instead of the actual quantity stipulated, then 
 the acceptance of one-half of the quantity originally desig- 
 nated could be directly required without going through 
 the form of altering the standard. No just man could be 
 imposed upon by this use of words in a double sense, 
 where the same names were applied to denote different 
 quantities of the same thing, nor would his condemna- 
 tion of the wrong committed in such case be withheld, 
 because the attempt was made to conceal it by this jug- 
 glery of words. 
 
 The power of Congress to interfere with contracts for 
 the payment of money is not greater or in any particular 
 
39 
 
 different from its power with respect to contracts for 
 lands or goods. The contract is not fulfilled anymore 
 in one case than in the other by the delivery of a thing 
 which is not stipulated, because by legislative action it is 
 called by the same name. Words in contracts are to be 
 construed in both cases in the sense in which they were 
 understood by the parties at the time of the contract. 
 
 Let us for a moment see where the doctrine of the 
 power asserted will lead. Congress has the undoubted 
 right to give such denominations as it chooses to the 
 coins struck by its authority, and to change them. It 
 can declare that the dime shall hereafter be called a dol- 
 lar, or, what is the same thing, it may declare that the 
 dollar shall hereafter be composed of the grains of silver 
 which now compose the dime. But would anybody pre- 
 tend that a contract for dollars, composed as at present, 
 could be satisfied by the delivery of an equal number of 
 dollars of the new issue ? I have never met any one who 
 would go to that extent. The answer always has been, that 
 would be too flagrantly unjust to be tolerated. Yet enforc- 
 ing the acceptance of paper promises or paper dollars, if the 
 promises can be so called, in place of gold or silver dollars, 
 is equally enforcing a departure from the terms of the 
 contract, the injustice of the measure depending entirely 
 upon the actual value at the time of the promises in the 
 market. Now reverse the case. Suppose Congress should 
 declare that hereafter the eagle should be called a dollar, 
 or that the dollar should be composed of as many grains 
 of gold as the eagle, would anybody for a moment con- 
 tend that a contract for dollars, composed as now of silver, 
 should be satisfied by dollars composed of gold ? I am 
 confident that no judge sitting on this bench, and, indeed, 
 that no judge in Christendom, could be found who would 
 sanction the monstrous wrong by decreeing that the debtor 
 could only satisfy his contract in such case by paying ten 
 times the value originally stipulated. The natural sense 
 of right which is implanted in every mind would revolt 
 
40 
 
 from such supreme injustice. Yet there cannot be one 
 law for debtors and another law for creditors. If the 
 contract can at one time be changed by Congressional 
 legislation for the benefit of the debtor, it may at another 
 time be changed for the benefit of the creditor. 
 
 For acts of flagrant injustice such as those mentioned 
 there is no authority in any legislative body, even though 
 not restrained by any express constitutional prohibition. 
 For as there are unchangeable principles of right and 
 morality, without which society would be impossible, and 
 men would be but wild beasts preying upon each other, 
 so there are fundamental principles of eternal justice, 
 upon the existence of which all constitutional govern- 
 ment is founded, and without which government would 
 be an intolerable and hateful tyranny. There are acts, 
 says Mr. Justice Chase, in Odder v. Bull, (3 Dall. 388,) 
 which the Federal and State legislatures cannot do, with- 
 out exceeding their authority. Among these he mentions 
 a law which punishes a citizen for an innocent action ; a 
 law that destroys or impairs the lawful private contracts 
 of citizens ; a law that makes a man a judge in his own 
 cause; and a law that takes the property from A. and 
 gives it to B. " It is against all reason and right," says 
 the learned justice, " for a people to intrust a legislature 
 with such powers; and therefore it cannot be presumed 
 that they have done it. The genius, the nature, and the 
 spirit of our State governments amount to a prohibition 
 of such acts of legislation, and the general principles of 
 law .and reason forbid them. The legislature may enjoin, 
 permit, forbid, and punish ; they may declare new crimes, 
 and establish rules of conduct for all its citizens in future 
 cases; they may command, what is right and prohibit 
 what is wrong, but they cannot change innocence into 
 guilt, or punish innocence as a crime, or violate the rights 
 of an antecedent lawful private contract, or the right of 
 private property. To maintain that our Federal or State 
 legislatures possess such powers, if they had not been ex- 
 
41 
 
 pressly restrained, would, in my opinion, be a political 
 heresy, altogether inadmissible in our free republican gov- 
 ernments." 
 
 In Ogden v. Saunders, (12 Wheat. 303,) Mr. Justice 
 Thompson, referring to the provisions in the Constitution 
 forbidding the States to pass any bill of attainder, ex post 
 facto law, or law impairing the obligation of contracts, 
 says : " Neither provision can strictly be considered as in- 
 troducing any new principle, but only for greater secur- 
 ity and safety to incorporate into this charter provisions 
 admitted by all to be among the first principles of gov- 
 ernment. No State court would, I presume, sanction and 
 enforce an ex post facto law if no such prohibition was 
 contained in the Constitution of the United States; so, 
 neither would retrospective laws, taking away vested 
 rights, be enforced. Such laws are repugnant to those 
 fundamental principles upon which every just system of 
 laws is founded. It is an elementary principle, adopted 
 and sanctioned by the courts of justice in this country 
 and in Great Britain, whenever such laws have come 
 under consideration, and yet retrospective laws are clearly 
 within this prohibition." 
 
 In Wilkeson v. Leland, (2 Pet. 657,) Mr. Justice Story, 
 whilst commenting upon the power of the legislature of 
 Rhode Island under the charter of Charles II, said : " The 
 fundamental maxims of a free government seem to re- 
 quire that the rights of personal liberty and private 
 property should be held sacred. At least no court of jus- 
 tice in this country would be warranted in assuming that 
 the power to violate and disregard them, a power so re- 
 pugnant to the common principles of justice and civil 
 liberty, lurked under any general grant of legislative 
 authority, or ought to be implied from any general ex- 
 pressions of the will of the people. The people ought 
 not to be presumed to part with rights so vital to their 
 security and well being without very strong and direct 
 expressions of such an intention." 
 
42 
 
 Similar views to these, cited from the opinions of 
 Chase, Thompson, Story, and Marshall, are found scattered 
 through the opinions of the judges who have preceded us 
 on this bench. As against their collective force the re- 
 mark of Mr. Justice Washington, in the case of Evans v. 
 Eaton, (1 Pet. Circuit Court, 323,) is without significance. 
 That was made at nisi prius in answer to a motion for 
 a nonsuit in an action brought for an infringement of a 
 patent right. The State of Pennsylvania had, in March, 
 1787, which was previous to the adoption of the Constitu- 
 tion, given to the plaintiff the exclusive right to make, 
 use, and vend his invention for fourteen years. In Jan- 
 uary, 1808, the United States issued to him a patent for 
 the invention for fourteen years from that date. It was 
 contended, for the nonsuit, that after the expiration of the 
 plaintiff's privilege granted by the State the right to his 
 invention became invested in the people of the State, by 
 an implied contract with the government, and, therefore, 
 that Congress could not consistently with the Constitution 
 grant to the plaintiff an exclusive right to the invention. 
 The court replied that neither the premises upon which 
 the motion was founded, nor the conclusion, could be ad- 
 mitted ; that it was not true that the grant of an exclusive 
 privilege to an invention for a limited time implied a 
 binding and irrevocable contract with the people that at 
 the expiration of the period limited the invention should 
 become their property ; and that even if the premises were 
 true, there was nothing in the Constitution which forbade 
 Congress to pass laws violating the obligation of con- 
 tracts. 
 
 The motion did not merit any consideration, as the 
 Federal court had no power .to grant a nonsuit against the 
 will of the plaintiff in any case. The expression under 
 these circumstances of any reason why the court would 
 not grant the motion, if it possessed the power, was aside 
 the case, and is not, therefore, entitled to any weight 
 whatever as authority. It was true, however, as ob- 
 
43 
 
 served by the court, that no such contract with the public, 
 as stated, was implied, and inasmuch as Congress was ex- 
 pressly authorized by the Constitution to secure for a 
 limited time to inventors the exclusive right to their dis- 
 coveries, it had the power in that way to impair the ob- 
 ligation of such a contract, if any had existed. And this 
 is, perhaps, all that Mr. Justice Washington meant. It is 
 evident from his language in Ogden v. Saunders that he 
 repudiated the existence of any general power in Congress 
 to destroy or impair vested private rights. 
 
 What I have heretofore said respecting the power of 
 Congress to make the notes of the United States a legal 
 tender in payment of debts contracted previous to the 
 act of 1862, and to interfere with contracts, has had refer- 
 ence to debts and contracts between citizens. But the 
 same power which is asserted over these matters is also 
 asserted with reference to previous debts owing by the 
 government, and must equally apply to contracts between 
 the government and the citizen. The act of 1862 de- 
 clares that the notes issued shall be a legal tender in pay- 
 ment of all debts, public and private, with the exception 
 of duties on imports and interest on the public debt. If 
 they are a legal tender for antecedent private debts, they 
 are also a legal tender for such debts owing by the United 
 States, except in the cases mentioned. That any excep- 
 tion was made was a mere matter of legislative discretion. 
 Express contracts for the payment of gold or silver have 
 been maintained by this court, and specifically enforced 
 on the ground that, upon a proper construction of the 
 act of 1862, in connection with other acts, Congress in- 
 tended to except these contracts from the operation of the 
 legal tender provision. But the power covers all cases if 
 it exist at all. The power to make the notes of the 
 United States the legal equivalent to gold and silver nec- 
 essarily includes the power to cancel with them specific 
 contracts for gold as well as money contracts generally. 
 Before the passage of the act of 1862 there was no legal 
 
44 
 
 money except that which consisted of metallic coins, 
 struck or regulated by the authority of Congress. Dol- 
 lars then meant, as already said, certain pieces of gold or 
 silver, certified to be of a prescribed weight and purity 
 by their form and impress received at the mint. The 
 designation of dollars, in previous contracts, meant gold 
 or silver dollars as plainly as if those metals were specifi- 
 cally named. 
 
 It follows, then, logically, from the doctrine advanced 
 by the majority of the court as to the power of Congress 
 over the subject of legal tender, that Congress may bor- 
 row gold coin upon a pledge of the public faith to repay 
 gold at the maturity of its obligations, and yet, in direct 
 disregard of its pledge, in open violation of faith, may 
 compel the lender to take, in place of the gold stipulated, 
 its own promises ; and that legislation of this character 
 would not be in violation of the Constitution, but in har- 
 mony with its letter and spirit. 
 
 The government is, at the present time, seeking, in the 
 markets of the world, a loan of several hundred millions 
 of dollars in gold upon securities containing the promises 
 of the United States to repay the money, principal and 
 interest, in gold ; yet this court, the highest tribunal of 
 the country, this day declares, by its solemn decision, that 
 should such loan be obtained it is entirely competent for 
 Congress to pay it off, not in gold, but in notes of the 
 United States themselves, payable at such time and in 
 such manner as Congress may itself determine, and that 
 legislation sanctioning such gross breach of faith would 
 not be repugnant to the fundamental law of the land. 
 
 What is this but declaring that repudiation by the gov- 
 ernment of the United States of its solemn obligations 
 would be constitutional? Whenever the fulfilment of the 
 obligation in the manner stipulated is refused, and the 
 acceptance of something different from that stipulated is 
 enforced against the will of the creditor, a breach of faith 
 is committed ; and to the extent of the difference of value 
 
45 
 
 between the thing stipulated and the thing which the 
 creditor is compelled to receive, there is repudiation of the 
 original obligation. I am not willing to admit that the 
 Constitution, the boast and glory of our country, would 
 sanction or permit any such legislation. Repudiation in 
 any form, or to any extent, would be dishonor, and for 
 the commission of this public crime no warrant, in my 
 judgment, can ever be found in that instrument. 
 
 Some stress has been placed in argument in support of 
 the asserted power of Congress over the subject of legal 
 tender in the fact that Congress can regulate the alloy of 
 the coins issued under its authority, and has exercised its 
 power in this respect, without question, by diminishing in 
 some instances the actual quantity of gold or silver they 
 contain. Congress, it is assumed, can thus put upon the 
 coins issued other than their intrinsic value; therefore, it 
 is argued, Congress may, by its declaration, give a value 
 to the notes of the United States, issued to be used as 
 money, other than that which they actually possess. 
 
 The assumption and the inference are both erroneous, 
 and the argument thus advanced is without force, and is 
 only significant of the weakness of the position which 
 has to rest for its support on an assumed authority of the 
 government to debase the coin of the country. 
 
 Undoubtedly Congress can alter the value of the coins 
 issued by its authority by increasing or diminishing, from 
 time to time, the alloy they contain, just as it may alter, 
 at its pleasure, the denominations of the several coins 
 issued, but there its power stops. It cannot make these al- 
 tered coins the equivalent of the coins in their previous con- 
 dition ; and, if the new coins should retain the same names 
 as the original, they would only be current at their true 
 value. Any declaration that they should have any other 
 value would be inoperative in fact, and a monstrous disre- 
 gard by Congress of its constitutional duty. The power 
 to coin money, as already declared by this court, (United 
 States v. Marigold, 9 How. 567,) is a great trust devolved 
 
46 
 
 upon Congress, carrying with it the duty of creating and 
 maintaining a uniform standard of value throughout the 
 Union, and it would be a manifest abuse of this trust to 
 give to the coins issued by its authority any other than 
 their real value. By debasing the coins, when once the 
 standard is fixed, is meant giving to the coins, by their 
 form and impress, a certificate of their having a relation 
 to that standard different from that which, in truth, they 
 possess ; in other words, giving to the coins a false certifi- 
 cate of their value. Arbitrary and profligate govern- 
 ments have often resorted to this miserable scheme of 
 robbery, which Mill designates (Mill's Political Economy, 
 vol. 2, p. 20) as a shallow and impudent artifice, the 
 " least covert of all modes of knavery, which consists in 
 calling a shilling a pound, that a debt of one hundred 
 pounds may be cancelled by the payment of one hundred 
 shillings." 
 
 In this country no such debasement has ever been at- 
 tempted, and I feel confident that none will ever be tol- 
 erated. The changes in the quantity of alloy in the dif- 
 ferent coins has been made from time to time, not with 
 any idea of debasing them, but for the purpose of pre- 
 serving the proper relative value between gold and silver. 
 The first coinage act, passed in 1792, provided that the 
 coins should consist of gold, silver, and copper the coins 
 of cents and half-cents consisting of copper, and the other 
 coins consisting of gold and silver and that the relative 
 value of gold and silver should be as fifteen to one, that is, 
 that an ounce of gold should be taken as the equal in value 
 of fifteen ounces of silver. 
 
 In progress of time, owing to the increased production 
 of silver, particularly from the mines of Mexico and South 
 America, this relative value was changed. Silver declined 
 in relative value to gold until it bore the relation of one 
 to sixteen instead of one to fifteen. The result was that 
 the gold was bought up as soon as coined, being worth 
 intrinsically sixteen times the value of silver, and yet 
 
47 
 
 passing by law only fifteen times such value, and was sent 
 out of the country to be recoined. The attention of Con- 
 gress was called to this change in the relative value of 
 the two metals and the consequent disappearance of gold 
 coin. This led, in 1834, (4 Stat. at Large, 699,) to an act 
 adjusting the rate of gold coin to its true relation to silver 
 coin. 
 
 The discovery of gold in California, some years after- 
 wards, and the great production of that metal, again 
 changed in another direction the relative value of the 
 two metals. Gold declined, or, in other words, silver was 
 at a premium, and as gold coin before 1834 was bought 
 up, so now silver coin was bought up, and a scarcity of 
 small coin for change was felt in the community. Con- 
 gress again interfered, and in 1853 reduced the amount 
 of silver in coins representing fractional parts of a dollar, 
 but even then these coins were restricted from being a 
 legal tender for sums exceeding five dollars, although the 
 small silver coins of previous issue continued to be a 
 legal tender for any amount. Silver pieces of the de- 
 nomination of three cents had been previously author- 
 ized in 1851, but were only made a tender for sums of 
 thirty cents and under. These coins did not express 
 their actual value, and their issue was soon stopped, and 
 in 1853 their value was increased to the standard of 
 coins of other fractional parts of a dollar. 
 
 The whole of this subject has been fully and satisfac- 
 torily explained in the very able and learned argument 
 of the counsel who contended for the maintenance of the 
 original decision of this court in Hepburn v. Griswold. He 
 showed by the debates that Congress has been moved, in 
 all its actions under the coinage power, only by an 
 anxious desire to ascertain the true relative value of the 
 two precious metals, and to fix the coinage in accordance 
 with it; and that in no case has any deviation from in- 
 trinsic value been permitted except in coins for fractional 
 parts of a dollar, and even that has been only of so slight 
 
48 
 
 a character as to prevent them from being converted into 
 bullion, the actual depreciation being made up by their 
 portability and convenience. 
 
 It follows, from this statement of the action of Con- 
 gress in altering at different times the alloy of certain 
 coins, that the assumption of power to stamp metal with 
 an arbitrary value and give it currency does not rest 
 upon any solid foundation, and that the argument built 
 thereon goes with it to the ground. 
 
 I have thus far spoken of the legal tender provision 
 with particular reference to its application to debts con- 
 tracted previous to its passage. It only remains to say a 
 few words as to its validity when applied to subsequent 
 transactions. 
 
 So far as subsequent contracts are made payable in notes 
 of the United States, there can of course be no objection to 
 their specific enforcement by compelling a delivery of an 
 equal amount of the notes, or by a judgment in damages 
 for their value as estimated in gold or silver dollars, nor 
 would there be any objection to such enforcement if the 
 legal tender provision had never existed. From the gen- 
 eral use of the notes throughout the country, and the dis- 
 appearance of gold and silver coin from circulation, it 
 may perhaps be inferred, in most cases, that notes of the 
 United States are intended by the parties where gold or 
 silver dollars are not expressly designated, except in con- 
 tracts made in the Pacific States, where the constitutional 
 currency has always continued in use. As to subsequent 
 contracts, the legal tender provision is not as unjust in its 
 operation as when applied to past contracts, and does not 
 impair to the same extent private rights. But so far as 
 it makes the receipt of the notes, in absence of any agree- 
 ment of the parties, compulsory in payment of such con- 
 tracts, it is, in my judgment, equally unconstitutional. 
 This seems to me to follow necessarily from the duty al- 
 ready mentioned cast upon Congress by the coinage power 
 to create and maintain a uniform metallic standard of 
 
49 
 
 value throughout the Union. Without a standard of 
 value of some kind, commerce would be difficult, if not 
 impossible, and just in proportion to the uniformity and 
 stability of the standard is the security and consequent 
 extent of commercial transactions. How is it possible for 
 Congress to discharge its duty by making the acceptance 
 of paper promises compulsory in all future dealings 
 promises which necessarily depend for the value upon the 
 confidence entertained by the public in their ultimate 
 payment, and the consequent ability of the holder to con- 
 vert them into gold or silver promises which can never 
 be uniform throughout the Union, but must have differ- 
 ent values in different portions of the country ; one value 
 in New York, another at New Orleans, and still a different 
 one at San Francisco? 
 
 Speaking of paper money issued by the States and 
 the same language is equally true of paper money issued 
 by the United States Chief Justice Marshall says, in 
 Craig v. The State of Missouri, (4 Pet. 432,) "Such a me- 
 dium has been always liable to considerable fluctuation. 
 Its value is continually changing; and these changes, 
 often great and sudden, expose individuals to immense loss, 
 are the sources of ruinous speculations, and destroy all 
 confidence between man and man. To cut up this mis- 
 chief by the roots, a mischief which was felt through the 
 United States, and which deeply affected the interest and 
 prosperity of all, the people declared in their Constitution 
 that no State should emit bills of credit." 
 
 Mr. Justice Washington, after referring, in Ogden v. 
 Saunders, (12 Wheat. 265,) to the provision of the Constitu- 
 tion declaring that no State shall coin money, emit bills of 
 credit, make anything but gold and silver coin a tender 
 in payment of debts, says : " These prohibitions, associated 
 with the powers granted to Congress c to coin money and 
 to regulate the value thereof, and of foreign coin,' most 
 obviously constitute members of the same family, being 
 upon the same subject and governed by the same policy. 
 
50 
 
 ' This policy was to provide a fixed and uniform standard 
 of value throughout the United States, by which the 
 commercial and other dealings between the citizens 
 thereof, or between them and foreigners, as well as the 
 moneyed transactions of the government, should be regu- 
 lated. For it might well be asked, why vest in Congress 
 the power to establish a uniform standard of value by the 
 means pointed out, if the States might use the same 
 means, and thus defeat the uniformity of the standard, 
 and consequently the standard itself? And why estab- 
 lish a standard at all for the government of the various 
 contracts which might be entered into, if those contracts 
 might afterwards be discharged by a different standard, 
 or by that which is not money, under the authority of 
 State tender laws? It is obvious, therefore, that these 
 prohibitions in the tenth section are entirely homo- 
 geneous and are essential to the establishment of a uni- 
 form standard of value in the formation and discharge of 
 contracts." 
 
 It is plain that this policy cannot be carried out, and this 
 fixed and uniform metallic standard of value throughout 
 the United States be maintained, so long as any other 
 standard is adopted, which of itself has no intrinsic value 
 and is forever fluctuating and uncertain. 
 
 For the reasons which I have endeavored to unfold, I 
 am compelled to dissent from the judgment of the ma- 
 jority of the court. I know that the measure, the validity 
 of which I have called in question, was passed in the midst 
 of a gigantic rebellion, when even the bravest hearts 
 sometimes doubted the safety of the Republic, and that 
 the patriotic men who adopted it did so under the con- 
 viction that it would increase the ability of the govern- 
 ment to obtain funds and supplies, and thus advance the 
 National cause. Were I to be governed by my apprecia- 
 tion of the character of those men, instead of my views 
 of the requirements of the Constitution, I should readily 
 assent to the views of the majority of the court. But, 
 
51 
 
 sitting as a judicial officer, and bound to compare every 
 law enacted by Congress with the greater law enacted by 
 the people, and being unable to reconcile the measure in 
 question with that fundamental law, I cannot hesitate to 
 pronounce it as being, in my judgment, unconstitutional 
 and void. 
 
 In the discussions which have attended this subject of 
 legal tender there has been at times what seemed to me 
 to be a covert intimation that opposition to the measure 
 in question was the expression of a spirit not altogether 
 favorable to the cause, in the interest of which that meas- 
 ure was adopted. All such intimations I repel with all 
 the energy I can express. I do not yield to any one in 
 honoring and reverencing the noble and patriotic men 
 who were in the councils of the nation during the ter- 
 rible struggle with the rebellion. To them belong the 
 greatest of all glories in our history that of having 
 saved the Union, and that of having emancipated a race. 
 For these results they will be remembered and honored 
 so long as the English language is spoken or read among 
 men. But I do not admit that a blind approval of every 
 measure which they may have thought essential to put 
 down the rebellion is any evidence of loyalty to the 
 country. The only loyalty which I can admit consists in 
 obedience to the Constitution and laws made in pursu- 
 ance of it. It is only by obedience that affection and 
 reverence can be shown to a superior having a right to 
 command. So thought our great Master when He said to 
 His disciples: "If ye love Me, keep My commandments." 
 
THE 
 
 LEGAL TENDER CASE 
 
 THE DISSENTING OPINION 
 
 OF 
 
 MR. JUSTICE FIELD 
 
 <*K 
 
 7 9 
 
THE 
 
 LEGAL TENDER CASE 
 
 THE DISSENTING OPINION 
 
 OF 
 
 MR. JUSTICE FIELD 
 
 IN THE CASE OP 
 
 JUILLIARD v. GREENMAN 
 
 NEW YORK AND ALBANY 
 BANKS & BROTHERS, LAW PUBLISHERS 
 
 1884 
 
PRESS or J. J. LITTLE & Co., NEW YORK. 
 
LEGAL TENDER CASE. 
 
 MB. JUSTICE FIELD, dissenting.* 
 
 From the judgment of the court in this case, and from all 
 the positions advanced in its support, I dissent. The question 
 of the power of Congress to impart the quality of legal tender 
 to the notes of the United States, and thus make them money 
 and a standard of value, is not new here. Unfortunately, it 
 has been too frequently before the court, and its latest decision, 
 previous to this one, has never been entirely accepted and ap- 
 proved by the country. Nor should this excite surprise ; for 
 whenever it is declared that this government, ordained to 
 establish justice, has the power to alter the condition of con- 
 tracts between private parties, and authorize their payment 
 or discharge in something different from that which the parties 
 stipulated, thus disturbing the relations of commerce and the 
 business of the community generally, the doctrine will not and 
 ought not to be readily accepted. There will be many who 
 will adhere to the teachings and abide by the faith of their 
 fathers. So the question has come again, and will continue to 
 come until it is settled so as to uphold and not impair the con- 
 tracts of parties, to promote and not defeat justice. 
 
 If there be anything in the history of the Constitution which 
 can be established with moral certainty, it is that the framers 
 of that instrument intended to prohibit the issue of legal tender 
 notes both by the general government and by the States ; and 
 thus prevent interference with the contracts of private parties. 
 During the Revolution and the period of the old Confederation, 
 the Continental Congress issued bills of credit, and upon its 
 recommendation the States made them a legal tender, and the 
 refusal to receive them an extinguishment of the debts for 
 
 * Reported in 110 U. S. Reports, 451. 
 
4 LEGAL TENDER CASE. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 which they were offered. They also enacted severe penalties 
 against those who refused to accept them at their nominal 
 value, as equal to coin, in exchange for commodities. And 
 previously, as early as January, 1776, Congress had declared 
 that, if any person should be " so lost to aD virtue and regard 
 for his country " as to refuse to receive in payment the bills 
 then issued, he should, on conviction thereof, be " deemed, 
 published, and treated as an enemy of his country, and pre- 
 cluded from all trade and intercourse with the inhabitants of 
 the colonies." 
 
 Yet, this legislation proved ineffectual ; the universal law of 
 currency prevailed, which makes promises of money valuable 
 only as they are convertible into coin. The notes depreciated 
 until they became valueless in the hands of their possessors. 
 So it always will be ; legislative declaration cannot make the 
 promise of a thing the equivalent of the thing itself. 
 
 The legislation to which the States were thus induced to re- 
 sort was not confined to the attempt to make paper money a 
 legal tender for debts ; but the principle that private contracts 
 could be legally impaired, and their obligation disregarded, 
 being once established, other measures equally dishonest and 
 destructive of good faith between parties were adopted. What 
 followed is thus stated by Mr. Justice Story, in his Commen- 
 taries : 
 
 " The history, indeed." he says, " of the various laws which 
 were passed by the States, in their colonial and independent 
 character, upon this subject, is startling at once to our morals, 
 to our patriotism, and to our sense of justice. Not only was 
 paper money issued and declared to be a tender in payment of 
 debts, but laws of another character, well known under the 
 appellation of tender laws, appraisement laws, instalment laws, 
 and suspension laws, were from time to time enacted, which 
 prostrated all private credit and all private morals. By some 
 of these laws the due payment of debts was suspended ; debts 
 were, in violation of the very terms of the contract, authorized 
 to be paid by instalments at different periods ; property of any 
 sort, however worthless, either real or personal, might be ten- 
 dered by the debtor in payment of his debts ; and the creditor 
 
LEGAL TENDER CASE. 5 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 was compelled to take the property of the debtor, which he 
 might seize on execution, at an appraisement wholly dispro- 
 portionate to its known value. Such grievances and oppres- 
 sions, and others of a like nature, were the ordinary results of 
 legislation during the Revolutionary War and the intermediate 
 period down to the formation of the Constitution. They en- 
 tailed the most enormous evils on the country, and introduced 
 a system of fraud, chicanery, and profligacy which destroyed 
 all private confidence and all industry and enterprise." 2 
 Story on the Constitution, 1371. 
 
 To put an end to this vicious system of legislation which 
 only encouraged fraud, thus graphically described by Story, 
 the clauses. which forbid the States from emitting bills of credit 
 or making anything but gold and silver a tender in payment of 
 debts, or passing any law impairing the obligation of contracts, 
 were inserted in the Constitution. 
 
 "The attention of the Convention, therefore," says Chief 
 Justice Marshall, " was particularly directed to paper money 
 and to acts which enabled the debtor to discharge his debt 
 otherwise than was stipulated in the contract. Had nothing 
 more been intended, nothing more would have been expressed, 
 but in the opinion of the Convention much more remained to 
 be done. The same mischief might be effected by other means. 
 To restore public confidence completely, it was necessary, not 
 only to prohibit the use of particular means by which it might 
 .be effected, but to prohibit the use of any means by which the 
 same mischief might be produced. The Convention appears 
 to have intended to establish a great principle, that con- 
 tracts should be inviolable." St urges v. Crowninshield, 4 AVheat. 
 122, 206. 
 
 It would be difficult to believe, even in the absence of the 
 historical evidence we have on the subject, that the framers of 
 the Constitution, profoundly impressed by the evils resulting 
 from this kind of legislation, ever intended that the new gov- 
 ernment, ordained to establish justice, should possess the power 
 of making its bills a legal tender, which they were unwilling 
 should remain with the States, and which in the past had 
 proved so dangerous to the peace of the community, so dis- 
 
6 LEGAL TENDER CASE. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 turbing to the business of the people, and so destructive of 
 their morality. 
 
 The great historian of our country has recently given to the 
 world a history of the Convention, the result of years of labor 
 in the examination of all public documents relating to its for- 
 mation and the recorded opinions of its framers ; and thus he 
 writes : 
 
 " With the full recollection of the need or seeming need of 
 paper money in the Revolution, with the menace of danger in 
 future time of war from its prohibition, authority to issue bills 
 of credit that should be legal tender was refused to the gen- 
 eral government by the vote of nine States against New Jersey 
 and Maryland. It was Madison who decided the vote of Vir- 
 ginia, and he has left his testimony that ' the pretext for a 
 paper currency, and particularly for making the bills a tender, 
 either for public or private debts, was cut off.' This is the in- 
 terpretation of the clause made at the time of its adoption, alike 
 by its authors and by its opponents, accepted by all the 
 statesmen of that age, not open to dispute because too clear 
 for argument, and never disputed so long as any one man who 
 took part in framing the Constitution remained alive. History 
 cannot name a man who has gained enduring honor by caus- 
 ing the issue of paper money. Wherever such paper has been 
 employed it has in every case thrown upon its authors the 
 burden of exculpation under the plea of pressing necessity." 
 Bancroft's History of the Formation of the Constitution, 2 
 vol., 134. 
 
 And when the Convention came to the prohibition upon the 
 States, the historian says that the clause, " No State shall 
 make anything but gold and silver a tender in payment of 
 debts," was accepted without a dissentient State : 
 
 " So the adoption of the Constitution," he adds, " is to be 
 the end forever of paper money, whether issued by the several 
 States or by the United States, if the Constitution shall be 
 rightly interpreted and honestly obeyed." Id. 137. 
 
 For nearly three-quarters of a century after the adoption of 
 the Constitution, and until the legislation during the recent 
 civil war, no jurist and no statesman of any position in the 
 
LEGAL TENDEK CASE. 7 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 country ever pretended that a power to -impart the quality of 
 legal tender to its notes was vested in the general govern- 
 ment. There is no recorded word of even one in favor of its 
 possessing the power. All conceded, as an axiom of constitu- 
 tional law, that the power did not exist. 
 
 Mr. Webster, from his first entrance into public life in 1812, 
 gave great consideration to the subject of the currency, and in 
 an elaborate speech on thafc subject, made in the Senate, in 
 1836, then sitting in this room, he said : 
 
 " Currency, in a large and perhaps just sense, includes not 
 only gold and silver and bank bills, but bills of exchange also. 
 It may include all that adjusts exchanges and settles balances 
 in the operations of trade and business ; but if we understand 
 by currency the legal money of the country, and that which 
 constitutes a legal tender for debts, and is the standard meas- 
 ure of value, then undoubtedly nothing is included but gold 
 and silver. Most unquestionably there is no legal tender, and 
 there can be no legal tender in this country, under the author- 
 ity of this government or any other, but gold and silver, either 
 the coinage of our own mints or foreign coins at rates regulated 
 by Congress. This is a constitutional principle, perfectly 
 plain and of the highest importance. The States are ex- 
 pressly prohibited from making anything but gold and silver 
 a legal tender in payment of debts, and although no such 
 express prohibition is applied to Congress, yet as Congress 
 has no power granted to it in this respect but to coin money 
 and to regulate the value of foreign coins, it clearly has no 
 power to substitute paper or anything else for coin as a tender 
 in payment of debts and in discharge of contracts. Congress 
 has exercised this power fully in both its branches ; it has 
 coined money, and still coins it ; it has regulated the value of 
 foreign coins, and still regulates their value. The legal ten- 
 der, therefore, the constitutional standard of value, is estab- 
 lished and cannot be overthrown. To overthrow it would 
 shake the whole system." 4 Webster's Works, 271. 
 
 When the idea of imparting the legal tender quality to the 
 notes of the United States issued under the first act of 1862 
 was first broached, the advocates of the measure rested their 
 
8 LEGAL TENDER CASE. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 support of it on the ground that it was a war measure, to 
 which the country was compelled to resort by the exigencies 
 of its condition, being then sorely pressed by the Confederate 
 forces, and requiring the daily expenditure of enormous sums 
 to maintain its army and navy and to carry on the govern- 
 ment. The representative who introduced the bill in the 
 House, declared that it was a measure of that nature, " one of 
 necessity and not of choice ;" that the times were extraordi- 
 nary and that extraordinary measures must be resorted to in 
 order to save our government and preserve our nationality. 
 Speech of Spaulding, of New York, Cong. Globe, 1861-62, 
 Part 1, 523. Other members of the House frankly confessed 
 their doubt as to its constitutionality, but yielded their support 
 of it under the pressure of this supposed necessity. 
 
 In the Senate also the measure was pressed for the same 
 reasons. When the act was reported by the committee on 
 finance, its chairman, while opposing the legal tender provi- 
 sion, said : 
 
 " It is put on the ground of absolute, overwhelming neces- 
 sity ; that the government has now arrived at that point when 
 it must have funds, and those funds are not to be obtained 
 from ordinary sources, or from any of the expedients to which 
 we have heretofore had recourse, and therefore, this new, 
 anomalous, and remarkable provision must be resorted .to in 
 order to enable the government to pay off the debt that it now 
 owes and afford circulation which will be available for other 
 purposes." Cong. Globe, 1861-62. Part 1, 764. 
 
 And upon that ground the provision was adopted, some of 
 the senators stating that in the exigency then existing money 
 must be had, and they, therefore, sustained the measure, al- 
 though they apprehended danger from the experiment. " The 
 medicine of the Constitution," said Senator Sumner, "must 
 not become its daily food." Id. 800. A similar necessity was 
 urged upon the State tribunals and" this court in justification 
 of the measure, when its validity was questioned. The dissent- 
 ing opinion in Hepburn v. Griswold referred to the pressure 
 that was upon the government at the time to enable it to raise 
 and support an army and to provide and maintain a navy. 
 
LEGAL TENDER CASE. 9 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 Chief Justice Chase, who gave the prevailing opinion in that 
 case, also spoke of the existence of the feeling when the bill 
 was passed that the provision was necessary. He favored the 
 provision on that ground when Secretary of the Treasury, al- 
 though he had come to that conclusion with reluctance, and 
 recommended its adoption by Congress. When the question 
 as to its validity reached this court, this expression of favor 
 was referred to, and by many it was supposed that it would 
 control his judicial action. But after long pondering upon the 
 subject, after listening to repeated arguments by able counsel, 
 he decided against the constitutionality of the provision ; and, 
 holding in his hands the casting vote, he determined the judg- 
 ment of the court. He preferred to preserve his integrity 
 as a judicial officer rather than his consistency as a statesman. 
 In his opinion he thus referred to his previous views : 
 
 " It is not surprising that amid the tumult of the late civil 
 war, and under the influence of apprehensions for the safety 
 of the Republic almost universal, different views, never before 
 entertained by American statesmen or jurists, were adopted by 
 many. The time w r as not favorable to considerate reflection 
 upon the constitutional limits of legislative or executive 
 authority. If power was assumed from patriotic motives, the 
 assumption found ready justification in patriotic hearts. Many 
 who doubted yielded their, doubts ; many who did not doubt 
 were silent. Some who were strongly averse to making gov- 
 ernment notes a legal tender felt themselves constrained to 
 acquiesce in the views of the advocates of the measure. Not 
 a few who then insisted upon its necessity, or acquiesced in 
 that view, have, since the return of peace, and under the in- 
 fluence of the calmer time, reconsidered their conclusions, and 
 now concur in those which we have just announced. These 
 conclusions seem to us to be fully sanctioned by the letter and 
 spirit of the Constitution." 8 Wall. 625. 
 
 It must be evident, however, upon reflection that if there 
 were any power in the government of the United States to 
 impart the quality of legal tender to its promissory notes, it 
 was for Congress to determine when the necessity for its exer- 
 cise existed ; that war merely increased the urgency for money ; 
 
10 LEGAL TENDEE CASE. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 it did not add to the powers of the government nor change 
 their nature ; that if the power existed it might be equally 
 exercised when a loan was made to meet ordinary expenses in 
 time of peace as when vast sums were needed to support an 
 army or a navy in time of war. The wants of the govern- 
 ment could never be the measure of its powers. But in the 
 excitement and apprehensions of the war these considerations 
 were unheeded ; the measure was passed as one of overruling 
 necessity in a perilous crisis of the country. Now, it is no 
 longer advocated as one of necessity, but as one that may be 
 adopted at any time. Never before was it contended by any 
 jurist or commentator on the Constitution that the govern- 
 ment, in full receipt of ample income, with a treasury over- 
 flowing, with more money on hand than it knows what to do 
 with, could issue paper money as a legal tender. What was 
 in 1862, called the " medicine of the Constitution," has now 
 become its daily bread. So it always happens that whenever 
 a wrong principle of conduct, political or personal, is adopted 
 on a plea of necessity, it will be afterwards followed on a plea 
 of convenience. 
 
 The advocates of the measure have not been consistent in 
 the designation of the power upon which they have supported 
 its validity, some placing it on the power to borrow money, 
 some on the coming power, and s/>me have claimed it as an 
 incident to the general powers of the government. In the 
 present case it is placed by the court upon the power to bor- 
 row money, and the alleged sovereignty of the United States 
 over the currency. It is assumed that this power, when exer- 
 cised by the government, is something different from what it 
 is when exercised by corporations or individuals, and that the 
 government has, by the legal tender provision, the power to 
 enforce loans of money because the sovereign governments of 
 European countries have claimed and exercised such power. 
 
 " The words to borrow money," says the court, " are not to 
 receive that limited and restricted interpretation and meaning 
 which they would have in a penal statute or in an authority 
 conferred by law or by contract upon trustees or agents for 
 private purposes." And it adds that " the power, as incident 
 
LEGAL TENDER CASE. 11 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 to the power of borrowing money and issuing bills or notes of 
 the government for money borrowed, of impressing upon those 
 bills or notes the quality of being a legal tender lor the pay- 
 ment of private debts, was a power universally understood to 
 belong to sovereignty, in Europe and America, at the time of 
 the framing and adoption of the Constitution of the United 
 States. The governments of Europe, acting through the mon- 
 arch or the legislature, according to the distribution of powers 
 under their respective constitutions, had and have as sovereign 
 a power of issuing paper money as of stamping coin," and that 
 "the exercise of this power not being prohibited to Congress 
 by the Constitution, it is included in the power expressly 
 granted to borrow money on the credit of the United States." 
 
 As to the terms to 'borrow money, where, I would ask, does 
 the court find any authority for giving to them a different in- 
 terpretation in the Constitution from what they receive when 
 used in other instruments, as in the charters of municipal bodies 
 or of private corporations, or in the contracts of individuals ? 
 They are not ambiguous ; they have a well-settled meaning 
 in other instruments. If the court may change that in 
 the Constitution, so it may the meaning of all other clauses 
 and the powers which the government may exercise will be 
 found declared, not by plain words in the organic law, but by 
 words of a new significance resting in the minds of the judges. 
 Until some authority beyond the alleged claim and practice of 
 the sovereign governments of Europe be produced, I must 
 believe that the terms have the same meaning in all instruments 
 wherever they are used ; that they mean a power only to con- 
 tract for a loan of money, upon considerations to be agreed be- 
 tween the parties. The conditions of the loan, or whether any 
 particular security shall be given to the lender, are matters of 
 arrangement between the parties ; they do not concern any one 
 else. They do not imply that the borrower can give to his 
 promise to refund the money any security to the lender outside 
 of property or rights which he possesses. The transaction is 
 completed when the lender parts with his money and the bor- 
 rower gives his promise to pay at the time and in the manner 
 and with the securities agreed upon. Whatever stipulations may 
 
12 LEGAL TENDER CASE. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 be made, to add to the value of the promise or to secure its 
 fulfilment, must necessarily be limited to the property, rights, 
 and privileges which the borrower possesses. Whether he can 
 add to his promises any element which will induce others 
 to receive them beyond the security which he gives for their 
 payment, depends upon his power to control such element. If 
 he has a right to put a limitation upon the use of other persons' 
 property, or to enforce an exaction of some benefit from them, 
 he may give such privilege to the lender ; but if he has no right 
 thus to interfere with the property or possessions of others of 
 course he can give none. It will hardly be pretended that the 
 government of the United States has any power to enter into 
 an engagement that, as security for its notes, the lender shall 
 have special privileges with respect to the visible property 
 of others, shall be able to occupy a portion of their lands or their 
 houses, and thus interfere with the possession and use of their 
 property. If the government cannot do that, how can it step 
 in and say, as a condition of loaning money, that the lender 
 shall have a right to interfere with contracts between private 
 parties? A large proportion of the property of the world ex- 
 ists in contracts, and the government has no more right to de- 
 prive one of their value by legislation operating directly upon 
 them, than it has a right to deprive one of the value of any 
 visible and tangible property. No one, I think, will pretend 
 that individuals or corporations possess the power to impart to 
 their evidences of indebtedness any quality by which the holder 
 will be able to affect the contracts of other parties, strangers to 
 the loan ; nor would any one pretend that Congress possesses 
 the power to impart any such quality to the notes of the 
 United States, except from the clause authorizing it to make 
 laws necessary and proper to the execution of its powers. That 
 clause, however, does not enlarge the expressly designated 
 powers ; it merely states what Congress could have done with- 
 out its insertion in the Constitution. Without it Congress could 
 have adopted any appropriate means to borrow ; but that can 
 only be appropriate for that purpose which has some relation 
 of fitness to the end, which has respect to the terms essential 
 to the contract, or to the securities which the borrower may 
 
LEGAL TENDER CASE. 13 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 furnish for the repayment of the loan. The quality of legal 
 tender does not touch the terms of the contract ; that is com- 
 plete without it ; nor does it stand as a security for the loan, for 
 a security is a thing pledged, over which the borrower has some 
 control, or in which he holds some interest. 
 
 The argument presented by the advocates of legal tender is, 
 in substance, this: The object of borrowing is to raise funds, 
 the addition of the quality of legal tender to the notes of the 
 government will induce parties to take them, and funds will 
 thereby be more readily loaned. But the same thing may be 
 said of the addition of any other quality which would give to 
 the holder of the notes some advantage over the property of 
 others, as, for instance, that the notes should serve as a pass 
 on the public conveyances of the country, or as a ticket to 
 places of amusement, or should exempt his property from State 
 and municipal taxation or entitle him to the free use of the 
 telegraph lines, or to a percentage from the revenues of private 
 corporations. The same consequence, a ready acceptance of 
 the notes, would follow : and yet no one would pretend that 
 the addition of privileges of this kind with respect to the prop- 
 erty of others, over which the borrower has no control, would 
 be in any sense an appropriate measure to the execution of the 
 power to boiTow. 
 
 Undoubtedly the power to borrow includes the power to 
 give evidences of the loan in bonds, treasury notes, or in such 
 other form as may be agreed between the parties. These may 
 be issued in such amounts as will fit them for circulation, and 
 for that purpose may be made payable to bearer, and transfer- 
 able by delivery. Experience has shown that the form best 
 fitted to secure their ready acceptance is that of notes payable 
 to bearer, in such amounts as may suit the ability of the 
 lender. The government, in substance, says to parties with 
 whom it deals : Lend us your money, or furnish us with your 
 products or your labor, and we will ultimately pay you, and as 
 evidence of it we will give you our notes, in such form and 
 amount as may suit your convenience, and enable you to trans- 
 fer them ; we will also receive them for certain demands due to 
 us. In all this matter there is only a dealing between the gov- 
 
14 LEGAL TENDER CASE. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 eminent and the individuals who trust it. The transaction 
 concerns no others. The power which authorizes it is a very 
 different one from a power to deal between parties to private 
 contracts in which the government is not interested, and to 
 compel the receipt of these promises to pay in place of the 
 money for which the contracts stipulated. This latter power 
 is not an incident to the former ; it is a distinct and far greater 
 power. There is no legal connection between the two ; between 
 the power to borrow from those willing to lend and the power 
 to interfere with the independent contracts of others. The pos- 
 session of this latter power would justify the interference of 
 the government with any rights of property of other parties, 
 under the pretence that its allowance to the holders of the 
 notes would lead to their more ready acceptance, and thus fur- 
 nish the needed means. 
 
 The power vested in Congress to coin money does not in my 
 judgment fortify the position of the court as its opinion affirms. 
 So far from deducing from that power any authority to impress 
 the notes of the government with the quality of legal tender, 
 its existence seems to me inconsistent with a power to make 
 anything but coin a legal tender. The meaning of the terms 
 "to coin money" is not at all doubtful. It is to mould metallic 
 substances into forms convenient for circulation and to stamp 
 them with the impress of the government authority indicating 
 their value with reference to the unit of value established by 
 law. Coins are pieces of metal of definite weight and value, 
 stamped such by the authority of the government. If any 
 doubt could exist that the power has reference to metallic sub- 
 stances only it would be removed by the language which im- 
 mediately follows, authorizing Congress to regulate the value 
 of money thus coined and of foreign coin, and also by clauses 
 making a distinction between coin and the obligations of the 
 general government and of the States. Thus, in the clause 
 authorizing Congress " to provide for the punishment of coun- 
 terfeiting the securities and current coin of the United States," 
 a distinction is made between the obligations and the coin of 
 the government. 
 
 Money is not only a medium of exchange, but it is a standard 
 
LEGAL TENDER CASE. 15 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 of value. Nothing can be such standard which has not intrin- 
 sic value, or which is subject to frequent changes in value. 
 From the earliest period in the history of civilized nations, we 
 find pieces of gold and silver used as money. These metals 
 are scattered over the world in small quantities; they are sus- 
 ceptible of division, capable of easy impression, have more 
 value in proportion to weight and size, and are less subject to 
 loss by wear and abrasion than any other material possessing 
 these qualities. It requires labor to obtain them ; they are not 
 dependent upon legislation or the caprices of the multitude ; 
 they cannot be manufactured or decreed into existence, and 
 they do not perish by lapse of time. They have, therefore, 
 naturally, if not necessarily, become throughout the world a 
 standard of value. In exchange for pieces of them, products 
 requiring an equal amount of labor are readily given. When 
 the product and the piece of metal represent the same labor, or 
 an approximation to it, they are freely exchanged. There can 
 be no adequate substitute for these metals. Says Mr. Webster, 
 in a speech made in the House of Eepresentatives in 1815 : 
 
 "The circulating medium of a commercial community must 
 be that which is also the circulating medium of other commer- 
 cial communities, or must be capable of being converted into 
 that medium without loss. It must also be able, not only to 
 pass in payments and receipts among individuals of the same 
 society and nation, but to adjust and discharge the balance of 
 exchanges between different nations. It must be something 
 which has a value abroad as well as at home, by which foreign 
 as well as domestic debts can be satisfied. The precious 
 metals alone answer these purposes. They alone, therefore, 
 are money, and whatever else is to perform the functions of 
 money must be their representative, and capable of being 
 turned into them at will. So long as bank paper retains this 
 quality it is a substitute for money ; divested of this, nothing 
 can give it that character." 3 Webster's Works, 41. 
 
 The clause to coin money must be read in connection with 
 the prohibition upon the States to make anything but gold 
 and silver coin a tender in payment of debts. The two taken 
 together clearly show that the coins to be fabricated under the 
 
16 LEGAL TENDER CASE. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 authority of the general government, and as such to be a legal 
 tender for debts, are to be composed principally, if not entirely, 
 of the metals of gold and silver. Coins of such metals are 
 necessarily a legal tender to the amount of their respective 
 values without any legislative enactment, and the statute of 
 the United States providing that they shall be such tender is 
 only declaratory of their effect when offered in payment. 
 "When the Constitution says, therefore, that Congress shah 1 have 
 the power to coin money, interpreting that clause with the pro- 
 hibition upon the States, it says it shall have the power to 
 make coins of the precious metals a legal tender, for that alone 
 which is money can be a legal tender. If this be the true im- 
 port of the language, nothing else can be made a legal tender. 
 We all know that the value of the notes of the government in 
 the market, and in the commercial world generally, depends 
 upon their convertibility on demand into coin ; and as confi- 
 dence in such convertibility increases or diminishes, so does 
 the exchangeable value of the notes vary. So far from becom- 
 ing themselves standards of value by reason of the legislative 
 declaration to that effect, their own value is measured by the 
 facility with which they can be exchanged into that which 
 alone is regarded as money by the commercial world. They 
 are promises of money, but they are not money in the sense of 
 the Constitution. The term money is used in that instrument 
 in several clauses ; in the one authorizing Congress " to borrow 
 money ; " in the one authorizing Congress " to coin money ; " 
 in the one declaring that " no money " shall be drawn from the 
 treasury but in consequence of appropriations made by law ; 
 and in the one declaring that no State shall "coin money." 
 And it is a settled rule of interpretation that the same term 
 occurring in different parts of the same instrument shall be 
 taken in the same sense, unless there be something in the con- 
 text indicating that a different meaning was intended. Now, 
 to coin money is, as I have said, to make coins out of metallic 
 substances, and the only money the value of which Congress 
 can regulate is coined money, either of our mints or of foreign 
 countries. It should seem, therefore, that to borrow money is 
 to obtain a loan of coined money, that is, money composed of 
 
LEGAL TENDER CASE. 17 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 the precious metals, representing value in the purchase of 
 property and payment of debts. Between the promises of the 
 government, designated as its securities, and this money, the 
 Constitution draws a distinction, which disappears in the 
 opinion of the court. 
 
 The opinion not only declares that it is in the power of Con- 
 gress to make the notes of the government a legal tender and 
 a standard of value, but that under the power to coin money 
 and regulate the value thereof, Congress may issue coins of the 
 same denominations as those now already current, but of less 
 intrinsic value, by reason of containing a less weight of the 
 precious metals, and thereby enable debtors to discharge their 
 debts by payment of coins of less real value. This doctrine is 
 put forth as in some way a justification of the legislation 
 authorizing the tender of nominal money in place of real money 
 in payment of debts. Undoubtedly Congress has power to 
 alter the value of coins issued, either by increasing or diminish- 
 ing the alloy they contain ; so it may alter, at its pleasure, their 
 denominations ; it may hereafter call a dollar an eagle, and it 
 may call an eagle a dollar. But if it be intended to assert that 
 Congress can make the coins changed the equivalent of those 
 having a greater value in their previous condition, and compel 
 parties contracting for the latter to receive coins with diminished 
 value, I must be permitted to deny any such authority. Any 
 such declaration on its part would be not only utterly inopera- 
 tive in fact but a shameful disregard of its constitutional duty. 
 As I said on a former occasion : " The power to coin money, 
 as declared by this court, is a great trust devolved upon Con- 
 gress, carrying with it the duty of creating and maintaining a 
 uniform standard of value throughout the Union, and it would 
 be a manifest abuse of this trust to give to the coins issued 
 by its authority any other than their real value. By debasing 
 the coins, when once the standard is fixed, is meant giving to 
 the coins, by their form and impress, a certificate of their having 
 a relation to that standard different from that which, in truth, 
 they possess ; in other words, giving to the coins a false certifi- 
 cate of their value. Arbitrary and profligate governments 
 have often resorted to this miserable scheme of robbery, which 
 2 
 
18 LEGAL TENDER CASE. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 Mill designates as a shallow and impudent artifice, the 'least 
 covert of all modes of knavery, which consists in calling a 
 shilling a pound, that a debt of one hundred pounds may be 
 cancelled by the payment of one hundred shillings.' " No such 
 debasement has ever been attempted in this country, and none 
 ever will be so long as any sentiment of honor influences the 
 governing power of the nation. The changes from time to 
 time in the quantity of alloy in the different coins have been 
 made to preserve the proper relative value between gold and 
 silver, or to prevent exportation, and not with a view of debas- 
 ing them. Whatever power may be vested in the government 
 of the United States, it has none to perpetrate such monstrous 
 iniquity. One of the great purposes of its creation, as expressed 
 in the preamble of the Constitution, was the establishment of 
 justice, and not a line nor a word is found in that instrument 
 which sanctions any intentional wrong to the citizen, either in 
 war or in peace. 
 
 But beyond and above all the objections which I have stated 
 to the decision recognizing a power in Congress to impart the 
 legal tender quality to the notes of the government, is my ob- 
 jection to the rule of construction adopted by the court to 
 reach its conclusions, a rule which fully carried out would 
 change the whole nature of our Constitution and break down 
 the barriers which separate a government of limited from one 
 of unlimited powers. When the Constitution came before the 
 conventions of the several States for adoption, apprehension 
 existed that other powers than those designated might be 
 claimed ; and it led to the first ten amendments. When these 
 were presented to the States they were preceded by a preamble 
 stating that the conventions of a number of the States had at 
 the time of adopting the Constitution expressed a desire, "in 
 order to prevent misconception or abuse of its powers, that 
 further declaratory and restrictive clauses should be added." 
 One of them is found in the Tenth Amendment, which declares 
 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." The framers of the 
 Constitution, as I have said, were profoundly impressed with 
 
LEGAL TENDER CASE. 19 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 the evils which had resulted from the vicious legislation of the 
 States making notes a legal tender, and they determined that 
 such a power should not exist any longer. They therefore 
 prohibited the States from exercising it, and they refused to 
 grant it to the new government which they created. Of what 
 purpose is it then to refer to the exercise of the power by the 
 absolute or the limited governments of Europe, or by the States 
 previous to our Constitution ? Congress can exercise no power 
 by virtue of any supposed inherent sovereignty in the general 
 government. Indeed, it may be doubted whether the power 
 can be correctly said to appertain to sovereignty in any proper 
 sense as an attribute of an independent political community. 
 The power to commit violence, perpetrate injustice, take pri- 
 vate property by force without compensation to the owner, and 
 compel the receipt of promises to pay in place of money, may 
 be exercised, as it often has been, by irresponsible authority, 
 but it cannot be considered as belonging to a government 
 founded upon law. But be that as it may, there is no such 
 thing as a power of inherent sovereignty in the government of 
 the United States. It is a government of delegated powers, 
 supreme within its prescribed sphere, but powerless outside of 
 it. In this country sovereignty resides in the people, and Con- 
 gress can exercise no power which they have not, by their 
 Constitution, entrusted to it ; all else is withheld. It seems, 
 however, to be supposed that, as the power was taken from 
 the States, it could not have been intended that it should dis- 
 appear entirely, and therefore it must in some way adhere to 
 the general government, notwithstanding the Tenth Amend- 
 ment and the nature of the Constitution. The doctrine, that 
 a power not expressly forbidden may be exercised, would, as I 
 have observed, change the character of our government. If I 
 have read the Constitution aright, if there is any weight to be 
 given to the uniform teachings of our great jurists and of com- 
 mentators previous to the late civil war, the true doctrine is 
 the very opposite of this. If the power is not in terms granted, 
 and is not necessary and proper for the exercise of a power 
 which is thus granted, it does not exist. And in determining 
 what measures may be adopted in executing the powers 
 
20 LEGAL TENDER CASE. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 granted, Chief Justice Marshall declares that they must be 
 appropriate, plainly adapted to the end, not prohibited, and 
 consistent with the letter and spirit of the Constitution. Now, all 
 through that instrument we find limitations upon the power, 
 both of the general government and the State governments, 
 so as to prevent oppression and injustice. No legislation, 
 therefore, tending to promote either can consist with the letter 
 and spirit of the Constitution. A law which interferes with 
 the contracts of others and compels one of the parties to re- 
 ceive in satisfaction something different from that stipulated, 
 without reference to its actual value in the market, necessarily 
 works such injustice and wrong. 
 
 There is, it is true, no provision in the Constitution of the 
 United States forbidding in direct terms the passing of laws 
 by Congress impairing the obligation of contracts, and there 
 are many express powers conferred, such as the power to 
 declare war, levy duties, and regulate commerce, the exercise 
 of which affects more or less the value of contracts. Thus war 
 necessarily suspends intercourse between citizens or subjects 
 of belligerent nations, and the performance during its con- 
 tinuance of previous contracts. The imposition of duties upon 
 goods may affect the prices of articles imported or manufac- 
 tured, so as to materially alter the value of previous contracts 
 respecting them. But these incidental consequences arising 
 from the exercise of such powers were contemplated in the 
 grant of them. As there can be no solid objection to legis- 
 lation under them, no just complaint can be made of such con- 
 sequences. But far different is the case when the impairment 
 of the contract does not follow incidentally, but is directly and 
 in terms allowed and enacted. Legislation operating directly 
 upon private contracts, changing their conditions, is forbidden 
 to the States ; and no power to alter the stipulations of such 
 contracts by direct legislation is 'conferred upon Congress. 
 There are also many considerations, outside of the fact that 
 there is no grant of the power, which show that the framers of 
 the Constitution never intended that such power should be 
 exercised. One of the great objects of the Constitution, as 
 already observed, was to establish justice, and what was meant 
 
LEGAL TENDER CASE. 21 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 by that in its relations to contracts, as said by the late chief 
 justice in his opinion in Hepburn v. Griswold, was not left to 
 inference or conjecture. And in support of this statement he 
 refers to the fact that when the Constitution was undergoing 
 discussion in the Convention, the Congress of the Confedera- 
 tion was engaged in framing the ordinance for the government 
 of the Northwest Territory, in which certain articles of com- 
 pact were established between the people of the original States 
 and the people of the Territory " for the purposes," as ex- 
 pressed in the instrument, "of extending the fundamental 
 principles of civil and religious liberty, whereon these repub- 
 lics [the States united under the confederation], their laws 
 and constitutions, are erected." That Congress was also alive 
 to the evils which the loose legislation of the States had 
 created by interfering with the obligation of private contracts 
 and making notes a legal tender for debts ; and the ordinance 
 declared that in the just preservation of rights and property 
 no law " ought ever to be made, or have force in the said Ter- 
 ritory, that shall in any manner whatever interfere with or 
 affect private contracts, or engagements, bonafide and without 
 fraud, previously formed." This principle, said the chief jus- 
 tice, found more condensed expression in the prohibition upon 
 the States against impairing the obligation of contracts, which 
 has always been recognized " as an efficient safeguard against 
 injustice ; " and the court was then of opinion that " it is clear 
 that those who framed and those who adopted the Constitu- 
 tion intended that the spirit of this prohibition should pervade 
 the entire body of legislation, and that the justice which the 
 Constitution was ordained to establish was not thought by 
 them to be compatible with legislation of an opposite ten- 
 dency." Soon after the Constitution was adopted the case of 
 Colder v. Bull came before this court, and it was there said 
 that there were acts which the Federal and State legislatures 
 could not do without exceeding their authority ; and among 
 them was mentioned a law which punished a citizen for an 
 innocent act, and a law which destroyed or impaired the law- 
 ful private contracts of citizens. " It is against all reason and 
 justice," it was added, " for a people to entrust a legislature 
 
22 LEGAL TENDER CASE. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 with such, powers, and, therefore, it cannot be presumed that 
 they have done it." 3 Dallas, 388. And Mr. Madison, in one 
 of the articles in the Federalist, declared that laws impairing 
 the obligation of contracts were contrary to the first principles 
 of the social compact, and to every principle of sound legisla- 
 tion. Yet this court holds that a measure directly operating 
 upon and necessarily impairing private contracts, may be 
 adopted in the execution of powers specifically granted for other 
 purposes, because it is not in terms prohibited, and that it is 
 consistent with the letter and spirit of the Constitution. 
 
 From the decision of the court I see only evil likely to fol- 
 low. There have been times within the memory of all of us 
 when the legal tender notes of the United States were not 
 exchangeable for more than one-half of their nominal value. 
 The possibility of such depreciation will always attend paper 
 money. This inborn infirmity no mere legislative declaration 
 can cure. If Congress has the power to make the notes a legal 
 tender and to pass as money or its equivalent, why should not 
 a sufficient amount be issued to pay the bonds of the United 
 States as they mature ? Why pay interest on the millions of 
 dollars of bonds now due, when Congress can in one day make 
 the money to pay the principal ? And why should there be 
 any restraint upon unlimited appropriations by the govern- 
 ment for all imaginary schemes of public improvement, if the 
 printing press can furnish the money that is needed for them ? 
 
TIKE 
 
 FOURTEENTH AMENDMENT 
 
 TO THE 
 
 CONSTITUTION 
 
 CONSIDERED. 
 
 
THE FOURTEENTH AMENDMENT TO THE 
 CONSTITUTION CONSIDERED. 
 
 THE RIGHT UNDER THAT AMENDMENT TO PURSUE ANY 
 LAWFUL TRADE OR AVOCATION, WITHOUT OTHER RE- 
 STRAINT THAN SUCH AS EQUALLY AFFECTS ALL 
 PERSONS, AND THE DOCTRINE THAT THE 
 AMENDMENT DOES NOT INTERFERE 
 WITH THE POLICE POWER OF THE 
 STATES, MAINTAINED. 
 
 DISSENTING OPINION 
 
 OF 
 
 M!R. JUSTICE 
 
 OF U. S. SUPREME COURT, 
 
 IN THE 
 
 NEW ORLEANS SLAUGHTEB-HOUSE OASES, 
 
 Decided at the December Term, 1872, 
 AND HIS CONCURRING OPINION IN 
 
 BABTEMEYEB vs. THE STATE OF IOWA, 
 
 Decided at the October Term, 1873. 
 
 WASHINGTON : 
 
 JOSEPH L. PEARSON, PRINTER, 
 Cor. 9th and D streets. 
 
the United 
 
 THE NEW ORLEANS SLAUGHTER-HOUSE CASES. 
 
 The Butchers' Benevolent Association of New Or- 
 leans, Plaintiff in Error, 
 
 98. 
 
 The Crescent City Live-Stock, Landing, and 
 Slaughter-House Company. 
 
 to, 
 
 Paul Esteben, L. Ruch, J. P. Rouede, W. Maylie, 
 S. Firmberg, B. Beaubay, William Fagan, J. D. 
 Broderick, N. Seibel, M. Lannes, J. Gitzinger, 
 J. P. Aycock, D. Nerges, The Live-Stock Deal- 
 ers' and Butchers' Association of New Orleans, 
 and Charles Cavaroc, Plaintiffs in Error, 
 
 vs. 
 
 The State of Louisiana, ex rel. S. Beldon, Attorney- 
 General. 
 
 s- 
 
 The Butchers' Benevolent Association of New Or- 
 leans, Plaintiff in Error, 
 
 vs. 
 
 The Crescent City Live-Stock, Landing, and 
 Slaughter-House Company. 
 
 MR. JUSTICE FIELD dissenting. 
 
 I am unable to agree with the majority of the court in 
 these cases, and will proceed to state the reasons of my dis- 
 sent from their judgment. 
 
 The cases grow out of the act of the Legislature of the 
 State of Louisiana, entitled " An act to protect the health 
 of the city of New Orleans, to locate the stock-landings and 
 
slaughter-houses, and to incorporate ' The Crescent City 
 Live-Stock Landing, and Slaughter-House Company,' ' 
 which was approved on the eighth of March, 1869, and 
 went into operation on the first of June following. The 
 act creates the corporation mentioned in its title, which is 
 composed of seventeen persons designated by name, and 
 invests them and their successors with the powers usually 
 conferred upon corporations in addition to their special and 
 exclusive privileges. It first declares that it shall not be 
 lawful, after the first day of June, 1869, to " land, keep, or 
 slaughter any cattle, beeves, calves, sheep, swine, or other 
 animals, or to have, keep, or establish any stock-landing, 
 yards, slaughter-houses, or abattoirs within the city of New 
 Orleans, or the parishes of Orleans, Jefferson, and St. Ber- 
 nard," except as provided in the act ; and imposes a pen- 
 alty of two hundred and fifty dollars for each violation of 
 its provisions. It then authorizes the corporation mentioned 
 to establish and erect within the parish of St. Bernard and 
 the corporate limits of New Orleans, below the United 
 States barracks, on the east side of the Mississippi, or at any 
 point below a designated railroad depot on the west side of 
 the river, " wharves, stables, sheds, yards, and buildings, 
 necessary to land, stable, shelter, protect, and preserve all 
 kinds of horses, mules, cattle, and other animals," and pro- 
 vides that cattle and other animals, destined for sale or 
 slaughter in the city of New Orleans or its environs, shall 
 be landed at the lauding and yards of the company, and be 
 there yarded, sheltered, and protected if necessary; and 
 that the company shall be entitled to certain prescribed fees 
 for the use of its wharves, and for each animal landed, and 
 be authorized to detain the animals until the fees are paid, 
 and if not paid within fifteer^days to take proceedings for 
 their sale. Every person violating any of these provisions, 
 or landing, yarding, or keeping animals elsewhere, is sub- 
 jected to a fine of two hundred and fifty dollars. 
 
 The act then requires the corporation to erect a grand 
 slaughter-house of sufficient dimensions to accommodate all 
 
butchers, and in which five hundred animals may be slaugh- 
 tered a day, with a sufficient number of sheds and stables 
 for the stock received at the port of New Orleans, at the 
 same time authorizing the company to erect other landing 
 places and other slaughter-houses at any points consistent 
 with the provisions of the act. 
 
 The act then provides that when the slaughter-houses and 
 accessory buildings have been completed and thrown open 
 for use, public notice thereof shall be given for thirty days, 
 and within that time " all other stock-landings and slaugh- 
 ter-houses within the parishes of Orleans, Jefferson, and 
 St. Bernard shall be closed, and it shall no longer be law- 
 ful to slaughter cattle, hogs, calves, sheep, or goats, the 
 meat of which is determined [destined] for sale within the 
 parishes aforesaid, under a penalty of one hundred dollars 
 for each and every offence." 
 
 The act then provides that the company shall receive for 
 every animal slaughtered in its buildings certain prescribed 
 fees, besides the head, feet, gore, and entrails of all animals 
 except swine. 
 
 Other provisions of the act require the inspection of the 
 animals before they are slaughtered, and allow the con- 
 struction of railways to facilitate communication with the 
 buildings of the company and the city of New Orleans 
 
 But it is only the special and exclusive privileges conferred 
 by the act that this court has to consider in the cases be- 
 fore it. These privileges are granted for the period of 
 twenty-five years. Their exclusive character not only follows 
 from the provisions I have cited, but it is declared in ex- 
 press terms in the act. In the third section the language is, 
 that the corporation " shall have the sole and exclusive priv- 
 ilege of conducting and carrying on the live-stock, landing, 
 and slaughter-house business within the limits and privi- 
 i leges granted by the provisions of the act." And in the 
 fourth section the language is, that after the 1st of June, 
 1869, the company shall have " the exclusive privilege of 
 having landed at their landing places all animals intended 
 
6 
 
 for sale or slaughter in the parishes of Orleans and Jeffer- 
 son," and " the exclusive pri vilege of having slaughtered " 
 in its slaughter-houses all animals, the meat of which is in- 
 tended for sale in these parishes. 
 
 In order to understand the real character of these special 
 privileges, it is necessary to know the extent of country 
 and of population which they affect. The parish of Orleans 
 contains an area of country of 150 square miles, the parish 
 of Jefferson 384 square miles, and the parish of St. Bernard 
 620 square miles. The three parishes together contain an 
 area of 1,154 square miles, and they have a population of 
 between two and three hundred thousand people. 
 
 The plaintiffs in error deny the validity of the act in 
 question, so far as it confers the special and exclusive priv- 
 ileges mentioned. The first case before us was brought by 
 an association of butchers in the three parishes against the 
 corporation, to prevent the assertion and enforcement of 
 these privileges. The second case was instituted by the 
 attorney-general of the state, in the name of the state, to 
 protect the corporation in the enjoyment of these privi- 
 leges, and to prevent an association of stock-dealers and 
 butchers from acquiring a tract of land in the same district 
 with the corporation, upon which to erect suitable buildings 
 for receiving, keeping, and slaughtering cattle, and prepar- 
 ing animal food for market. The third case was com- 
 menced by the corporation itself to restrain the defendants 
 from carrying on a business similar to its own, in violation 
 of its alleged exclusive privileges. 
 
 The substance of the averments of the plaintiffs in error 
 is this : That prior to the passage of the act in question 
 they were engaged in the lawful and necessary business of 
 procuring and bringing to '.the parishes of Orleans, Jeffer- 
 son, and St. Bernard, animals suitable for human food, 
 and in preparing such food for market ; that in the prose- 
 cution of this business they had provided in these parishes 
 suitable establishments for landing, sheltering, keeping, and 
 slaughtering cattle and the sale of meat ; that with their 
 
association about four hundred persons were connected, and 
 that in the parishes named about a thousand persons were 
 thus engaged in procuring, preparing, and selling animal 
 food. And they complain that the business of landing, 
 yarding, and keeping, within the parishes named, cattle in- 
 tended for sale or slaughter, which was lawful for them to 
 pursue before the first day of June, 1869, is made by that 
 act unlawful for any one except the corporation named ; 
 and that the business of slaughtering cattle and preparing 
 animal food for market, which it was lawful for them to 
 pursue in these parishes before that dav, is made by that 
 act unlawful for them to pursue afterwards, except in the 
 buildings of the company, and upon payment of certain 
 prescribed fees, and a surrender of a valuable portion of 
 each animal slaughtered. And they contend that the law- 
 ful business of landing, yarding, sheltering, and keeping 
 cattle intended for sale or slaughter, which they in common 
 with every individual in the community of the three par- 
 ishes had a right to follow, cannot be thus taken from them 
 and given over for a period of twenty-five years to the sole 
 and exclusive enjoyment of a corporation of seventeen per- 
 sons or of anybody else. And they also contend that the 
 lawful and necessary business of slaughtering cattle and 
 preparing animal food for market, which they and all other 
 individuals had a right to follow, cannot be thus restricted 
 within this territory of 1,154 square miles to the buildings 
 of this corporation, or be subjected to tribute for the emol- 
 ument of that body. 
 
 No one will deny the abstract justice which lies in the 
 position of the plaintiffs in error ; and I shall endeavor to 
 show that the position has some support in the fundamental 
 law of the country. 
 
 It is contended in justification for the act in question that 
 it was adopted in the interest of the city, to promote its 
 cleanliness and protect its health, and was the legitimate 
 exercise of what is termed the police power of the state. 
 That power undoubtedly extends to all regulations affecting 
 
8 
 
 the health, good order, morals, peace and safety of society, 
 and is exercised on a great variety of subjects, and in almost 
 numberless ways. All sorts of restrictions and burdens are 
 imposed under it, and when these are not in conflict with 
 any constitutional prohibitions, or fundamental principles, 
 they cannot be successfully assailed in a judicial tribunal. 
 With this power of the state and its legitimate exercise I 
 shall not differ from a majority of the court. But under 
 the pretence of prescribing a police regulation the state 
 cannot be permitted to encroach upon any of the just 
 rights of the citizen, which the Constitution intended to 
 secure against abridgment. 
 
 In the law in question there are only two provisions 
 which can properly be called police regulations, the one 
 which requires the landing and slaughtering of animals be- 
 low the city of New Orleans, and the other which requires 
 the inspection of the animals before they are slaughtered. 
 When these requirements are complied with the sanitary 
 purposes of the act are accomplished. In all other par- 
 ticulars the act is a mere grant to a corporation created 
 by it of special and exclusive privileges by which the health 
 of the city is in no way promoted. It is plain that if the 
 corporation can, without endangering the health of the 
 public, carry on the business of landing, keeping, and 
 slaughtering cattle within a district below the city embra- 
 cing an area of over a thousand square miles, it would not 
 endanger the public health if other persons were also per- 
 mitted to carry on the same business within the same dis- 
 trict under similar conditions as to the inspection of the 
 animals. The health of the city might require the removal 
 from its limits and suburbs of all buildings for keeping and 
 slaughtering cattle, but no s-uch object could possibly justify 
 legislation removing such buildings from a large part of 
 the state for the benefit of a single corporation. The pre- 
 tence of sanitary regulations for the grant of the exclusive 
 privileges is a shallow one, which merits only this passing 
 notice. 
 
9 
 
 It is also sought to justify the act in question on the same 
 principle that exclusive grants for ferries, bridges, and 
 turnpikes are sanctioned. But it can find no support there. 
 Those grants are of franchises of a public character apper- 
 taining to the government. Their use usually requires the 
 exercise of the sovereign right of eminent domain. It is 
 for the government to determine when one of them shall 
 
 <^ 
 
 be granted, and the conditions upon which it shall be en- 
 joyed. It is the duty of the government to provide suitable 
 roads, bridges, and ferries for the convenience of the public, 
 and if it chooses to devolve this duty to any extent, or in 
 any locality, upon particular individuals or corporations, it 
 may of course stipulate for such exclusive privileges con- 
 nected with the franchise as it may deem proper, without 
 encroaching upon the freedom or the just rights of others. 
 The grant, with exclusive privileges, of a right thus apper- 
 taining to the government, is a very different thing from a 
 grant, with exclusive privileges, of a right to pursue one of 
 the ordinary trades or callings of life, which is a right ap- 
 pertaining solely to the individual. 
 
 Nor is there any analogy between this act of Louisiana 
 and the legislation which confers upon the inventor of a 
 new and useful improvement an exclusive right to make 
 and sell to others his invention. The government in this 
 way only secures to the inventor the temporary enjoyment 
 of that which, without him, would not have existed. It 
 thus only recognizes in the inventor a temporary property 
 in the product of his own brain. 
 
 The act of Louisiana presents the naked case, unaccom- 
 panied by any public considerations, where a right to pursue 
 a lawful and necessary calling, previously enjoyed by every 
 citizen, and in connection with which a thousand persons 
 were daily employed, is taken away and vested exclusively 
 ' for twenty-five years, for an extensive district and a large 
 population, in a single corporation, or its exercise is for 
 that period restricted to the establishments of the corpora- 
 tion, and there allowed only upon onerous conditions. 
 2 
 
10 
 
 If exclusive privileges of this character can be granted to 
 a corporation of seventeen persons, they may, in the discre- 
 tion of the legislature, be equally granted to a single indi- 
 vidual. If they may be granted for twenty-five years they 
 may be equally granted for a century, and in perpetuity. 
 If they may be granted for the landing and keeping of ani- 
 mals intended for sale or slaughter, they may be equally 
 granted for the landing and storing of grain and other pro- 
 ducts of the earth, or for any article of commerce. If they 
 may be granted for structures in which animal food is pre- 
 pared for market, they may be equally granted for structures 
 in which farinaceous or vegetable food is prepared. They 
 may be granted for any of the pursuits of human industry, 
 even in its most simple and common forms. Indeed, upon 
 the theory on which the exclusive privileges granted by the 
 act in question are sustained, there is no monopoly, in the 
 most odious form, which may not be upheld. 
 
 The question presented is, therefore, one of the gravest 
 importance, not merely to the parties here, but to the whole 
 country. It is nothing less than the question whether the 
 recent amendments to the federal Constitution protect the 
 citizens of the United States against the deprivation of 
 their common rights by state legislation. In my judgment 
 the fourteenth amendment does afford such protection, and 
 was so intended by the Congress which framed and the 
 states which adopted it. 
 
 The counsel for the plaintiffs in error have contended, 
 with great force, that the act in question is also inhibited by 
 the thirteenth amendment. 
 
 That amendment prohibits slavery and involuntary servi- 
 tude, except as a punishment for crime, but I have not sup- 
 posed it was susceptible of a construction which would cover 
 the enactment in question. I have been so accustomed to 
 regard it as intended to meet that form of slavery which 
 had previously prevailed in this country, and to which the 
 recent civil war owed its existence, that I was not prepared, 
 nor am I yet, to give to it the extent and force ascribed by 
 
11 
 
 counsel. Still it is evident that the language of the amend- 
 ment is not used in a restrictive sense. It is not confined 
 to African slavery alone. It is general and universal in its 
 application. Slavery of white men as well as of black men 
 is prohibited, and not merely slavery in the strict sense of 
 the term, but involuntary servitude in every form. 
 
 The words " involuntary servitude" have not been the 
 subject of any judicial or legislative exposition, that I am 
 aware of, in this country, except that which is found in the 
 Civil-Rights Act which will be hereafter noticed. It is, how- 
 ever, clear that they include something more than slavery 
 in the strict sense of the term ; they include also serfage, 
 vassalage, villenage, peonage, and all other forms of com- 
 pulsory service for the mere benefit or pleasure of others. 
 Nor is this the full import of the terms. The abolition of 
 slavery and involuntary servitude was intended to make 
 every one born in this country a freeman, and as such, to 
 give to him the right to pursue the ordinary avocations of 
 life without other restraint than such as affects all others, 
 and to enjoy equally with them the fruits of his labor. A 
 prohibition to him to pursue certain callings, open to others 
 of the same age, condition, and sex, or to reside in places 
 where others are permitted to live, would so far deprive him 
 of the rights of a freeman, and would place him, as respects 
 others, in a condition of servitude. A person allowed to 
 pursue only one trade or calling, and only in one locality 
 of the country, would not be, in the strict sense of the term, 
 in a condition of slavery, but probably none would deny 
 that he would be in a condition of servitude. He certainly 
 would not possess the liberties nor enjoy the privileges of 
 a freeman. The compulsion which would force him to labor 
 even for his own benefit only in one direction, or in one 
 place, would be almost as oppressive, and nearly as great 
 an invasion of his liberty as the compulsion which would 
 force him to labor for the benefit or pleasure of another, 
 and' would equally constitute an element of servitude. The 
 counsel of the plaintiffs in error, therefore, contend that 
 
12 
 
 " wherever a law of a state or a law of the United States, 
 makes a discrimination between classes of persons, which 
 deprives the one class of their freedom or their property, or 
 which makes a caste of them, to subserve the power, pride, 
 avarice, vanity, or vengeance of others," there involuntary 
 servitude exists within the meaning of the thirteenth amend- 
 ment. 
 
 It is not necessary, in my judgment, for the disposition 
 of the present case in favor of the plaintiffs in error, to ac- 
 cept as entirely correct this conclusion of counsel. It, how- 
 ever, finds support in the act of Congress known as the Civil- 
 Rights Act, which was framed and adopted upon a construc- 
 tion of the thirteenth amendment, giving to its language a 
 similar breadth. That amendment was ratified on the 
 eighteenth of December, 1865,* and in April of the follow- 
 ing year the Civil-High ts Act was passed.! Its first section 
 declares that all persons born in the United States, and not 
 subject to any foreign power, excluding Indians not taxed, 
 are " citizens of the United States," and that " such citizens, 
 of every race and color, without regard to any previous 
 condition of slavery, or involuntary servitude, except as a 
 punishment for crime, whereof the party shall have been 
 duly convicted, shall have the same right in every state and 
 territory in the United States, to make and enforce con- 
 tracts, to sue, be parties, and give evidence, to inherit, pur- 
 chase, lease, sell, hold, and convey real and personal prop- 
 erty, and to full and equal benefit of all laws and proceed- 
 ings for the security of person and property, as enjoyed by 
 white citizens." 
 
 This legislation was supported upon the theory that citi- 
 zens of the United States as such were entitled to the rights 
 and privileges enumerated, and that to deny to any such 
 citizen equality in these righ'ts and privileges with others, 
 was, to the extent of the denial, subjecting him to an iuvol- 
 
 *The proclamation of its ratification was made on that day. (13 Stat. 
 at Large, 774.) 
 f 14 Ib., 27. 
 
13 
 
 untary servitude. Senator Trumbull, who drew the act and 
 who was its earnest advocate in the Senate, stated, on open- 
 ing the discussion upon it in that body, that the measure 
 was intended to give effect to the declaration of the amend- 
 ment, and to secure to all persons in the United States prac- 
 tical freedom. After referring to several statutes passed in 
 some of the Southern States, discriminating between the 
 freedmen and white citizens, and after citing the definition 
 of civil liberty given by Blackstone, the Senator said : " I 
 take it that any statute which is not equal to all, and which 
 deprives any citizen of civil rights, which are secured to 
 other citizens, is an unjust encroachment upon his liberty ; 
 and it is in fact a badge of servitude which by the Constitu- 
 tion is prohibited."* 
 
 By the act of Louisiana, within the three parishes named, 
 a territory exceeding one thousand one hundred square 
 miles, and embracing over two hundred thousand people, 
 every man who pursues the business of preparing animal 
 food for market must take his animals to the buildings of 
 the favored company, and must perform his work in them, 
 and for the use of the buildings must pay a prescribed trib- 
 ute to the company, and leave with it a valuable portion of 
 each animal slaughtered. Every man in these parishes who 
 has a horse or other animal for sale, must carry him to the 
 yards and stables of this company, and for their use pay a 
 like tribute. He is not allowed to do his work in his own 
 buildings, or to take his animals to his own stables or keep 
 them in his own yards, even though they should be erected 
 in the same district as the buildings, stables, and yards of 
 the company, and that district embraces over eleven hun- 
 dred square miles. The prohibitions imposed by this act 
 upon butchers and dealers in cattle in these parishes, and 
 the special privileges conferred upon the favored corpora- 
 tion, are similar in principle and as odious in character as 
 the restrictions imposed in the last century upon the peas- 
 antry in some parts of France, where, as says a French 
 
 * Cong. Globe, 1st. Ress., 39th Cong., Part I., p. 474. 
 
14 
 
 writer, the peasant was prohibited " to hunt on his own 
 lands, to fish in his own waters, to grind at his own mill, to 
 cook at his own oven, to dry his clothes on his own ma- 
 chines, to whet his instruments at his own grindstone, to 
 make his own wine, his oil, arid his cider at his own press, 
 * * * or to sell his commodities at the public market." 
 The exclusive right to all these privileges was vested in the 
 lords of the vicinage. " The history of the most execrable 
 tyranny of ancient times," says the same writer, " offers 
 nothing like this. This categor}^ of oppressions cannot be 
 applied to a free man, or to the peasant, except in violation 
 of his rights." 
 
 But if the exclusive privileges conferred upon the Louis- 
 iana corporation can be sustained, it is not perceived why 
 exclusive privileges for the construction and keeping of 
 ovens, machines, grindstones, wine presses, and for all the 
 numerous trades and pursuits for the prosecution of which 
 buildings are required, may not be equally bestowed upon 
 other corporations or private individuals, and for periods of 
 indefinite duration. 
 
 It is not necessary, however, as I have said, to rest my 
 objections to the act in question upon the terms and mean- 
 ing of the thirteenth amendment. The provisions of the 
 fourteenth amendment, which is properly a supplement to 
 the thirteenth, cover, in my judgment, the case before us, 
 and inhibit any legislation which confers special and ex- 
 clusive privileges like these under consideration. The 
 amendment was adopted to obviate objections which had 
 been raised and pressed with great force to the validity of the 
 Civil-Rights Act, and to place the common rights of Amer- 
 ican citizens under the protection of the national govern- 
 ment. It first declares that " all persons born or natural- 
 ized in the United States, and subject to the jurisdiction 
 thereof, are citizens of the United States and of the state 
 wherein they reside." It then declares that " no state shall 
 make or enforce any law which shall abridge the privileges 
 or immunities of citizens of the United States, nor shall any 
 
15 
 
 state deprive any person of life, liberty, or property without 
 due process of law, nor deny to any person within its juris- 
 diction the equal protection of the laws." 
 
 The first clause of this amendment determines who are 
 citizens of the United States, and how their citizenship is 
 created. Before its enactment there was much diversity of 
 opinion among jurists and statesmen whether there was any 
 such citizenship independent of that of the state, and, if any 
 existed, as to the manner in which it originated. With a 
 great number the opinion prevailed that there was no such 
 citizenship independent of the citizenship of the state. Such 
 was the opinion of Mr. Calhoun and the class represented 
 by him. In his celebrated speech in the Senate upon the 
 Force bill, in 1833, referring to the reliance expressed by a 
 Senator upon the fact that we are citizens of the United 
 States, he said : " If by citizen of the United States he means 
 a citizen at large, one whose citizenship extends to the entire 
 geographical limits of the country without having a local 
 citizenship in some state or territory, a sort of citizen of the 
 world, all I have to say is that such a citizen would be a 
 perfect nondescript ; that not a single individual of this de- 
 scription can be found in the entire mass of our population. 
 Notwithstanding all the pomp and display of eloquence on 
 the occasion, every citizen is a citizen of some state or ter- 
 ritory, and as such, under an express provision of the Con- 
 stitution, is entitled to all the privileges and immunities of 
 citizens of the several states ; and it is in this and no other 
 sense that we are citizens of the United States."* 
 
 In the Dred Scott case this subject of citizenship of the 
 United States was fully and elaborately discussed. The 
 exposition in the opinion of Mr. Justice Curtis has been 
 generally accepted by the profession of the country as the 
 one containing the soundest views of constitutional law. 
 And he held that, under the Constitution, citizenship of 
 the United States in reference to natives was dependent 
 
 * Calhoun's Works, vol. 2, p. 242. 
 
16 
 
 upon citizenship in the several states, under their constitu- 
 tions and laws. 
 
 The Chief Justice in that case, and the majority of the 
 court with him, held that the words " people of the United 
 States " and " citizens " were synonymous terms ; that the 
 people of the respective states were the parties to the Con- 
 stitution ; that these people consisted of the free inhabitants 
 of those states ; that they had provided in their Constitu- 
 tion for the adoption of an uniform rule of naturalization ; 
 that they and their descendants and persons naturalized 
 were the only persons who could be citizens of the United 
 States, and that it was not in the power of any state to in- 
 vest any other person with citizenship so that he could en- 
 joy the privileges of a citizen under the Constitution, and 
 that, therefore, the descendants of persons brought to this 
 country and sold as slaves were not, and could not be, citi- 
 zens within the meaning of the Constitution. 
 
 The first clause of the fourteenth amendment changes 
 this whole subject, and removes it from the region of dis- 
 cussion and doubt. It recognizes in express terms, if it 
 does not create, citizens of the United States, and it makes 
 their citizenship dependent upon the place of their birth, or 
 the fact of their adoption, and not upon the constitution or 
 laws of any state or the condition of their ancestry. A 
 citizen of a state is now only a citizen of the United States 
 residing in that state. The fundamental rights, privileges, 
 and immunities which belong to him as a free man and a 
 free citizen, now belong to him as a citizen of the United 
 States, and are not dependent upon his citizenship of any 
 state. The exercise of these rights and privileges, and the 
 degree of enjoyment received from such exercise, are al- 
 ways more or less affected by the condition and the local 
 institutions of the state, or city, or town where he resides. 
 They are thus affected in a state by the wisdom of its laws, 
 the ability of its officers, the efficiency of its magistrates, 
 the education and morals of its people, and by many other 
 considerations. This is a result which follows from the 
 
17 
 
 constitution of society, and can never be avoided, but iu no 
 other way can they be affected by the action of the state, or 
 by the residence of the citizen therein. They do not de- 
 rive their existence from its legislation, and cannot be de- 
 stroyed by its power. 
 
 The amendment does not attempt to confer any new 
 privileges or immunities upon citizens, or to enumerate or 
 define those already existing. It assumes that there are 
 such privileges and immunities which belong of right to 
 citizens as such, and ordains that they shall not be abridged 
 by state legislation. If this inhibition has no reference to 
 privileges and immunities of this character, but only refers, 
 as held by the majority of the court in their opinion, to such 
 privileges and immunities as were before its adoption spe- 
 cially designated in the Constitution or necessarily implied 
 as belonging to citizens of the United States, it was a vain 
 and idle enactment, which accomplished nothing, and most 
 unnecessarily excited Congress and the people on its pas- 
 sage. With privileges and immunities thus designated or 
 implied no state could ever have interfered by its laws, and 
 no new constitutional provision was required to inhibit such 
 interference. The supremacy of the Constitution and the 
 laws of the United States always controlled any state legis- 
 lation of that character. But if the amendment refers to 
 the natural and inalienable rights which belong to all citi- 
 zens, the inhibition has a profound significance and conse- 
 quence. 
 
 What, then, are the privileges and immunities which are 
 secured against abridgment by state legislation ? 
 
 In the first section of the Civil-Rights Act Congress has 
 given its interpretation to these terms, or at least has stated 
 some of the rights which, in its judgment, these terms in- 
 clude ; it has there declared that they include the right " to 
 make and enforce contracts, to sue, be parties and give evi- 
 dence, to inherit, purchase, lease, sell, hold, and convey 
 real and personal property, and to full and equal benefit of 
 all laws and proceedings for the security of person and prop- 
 8 
 
18 
 
 erty." That act, it is true, was passed before the fourteenth 
 amendment, but the amendment was adopted, as I have 
 already said, to obviate objections to the act, or, speaking 
 more accurately, I should say, to obviate objections to leg- 
 islation of a similar character extending the protection of 
 the national government over the common rights of all 
 citizens of the United States. Accordingly, after its ratifi- 
 cation, Congress re-enacted the act under the belief that 
 whatever doubts may have previously existed of its validity, 
 they were removed by the amendment.* 
 
 The terms, privileges and immunities are not new in the 
 amendment ; they were in the Constitution before the amend- 
 ment was adopted. They are found in the second section 
 of the fourth article, which declares that " the citizens of 
 each state shall be entitled to all privileges and immuni- 
 ties of citizens in the several states," and they have been 
 the subject of frequent consideration in judicial decisions. 
 In Cortield vs. Coryell,f Mr. Justice Washington said he had 
 " no hesitation in confining these expressions to those privi- 
 leges and immunities which were, in their nature, funda- 
 mental ; which belong of right to citizens of all free gov- 
 ernments, and which have at all times been enjoyed by the 
 citizens of the several states which compose the Union, from 
 the time of their becoming free, independent, and sover- 
 eign ;" and, in considering what these fundamental privi- 
 leges were, he said that perhaps it would be more tedious 
 than difficult to enumerate them, but that they might 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." 
 This appears to me to be a sound construction of the clause 
 in question. The privileges and immunities designated are 
 
 * May 31st, 1870 ; 16 Stat. at Large, 144. 
 f 4 Washington, Cir. Ct., 380. 
 
19 
 
 those which of right belong to the citizens of all free govern- 
 ments. Clearly among these must be placed the right to 
 pursue a lawful employment in a lawful manner, without 
 other restraint than such as equally affects all persons. In 
 the discussions in Congress upon the passage of the Civil- 
 Rights Act repeated reference was made to this language of 
 Mr. Justice Washington. It was cited by Senator Trurn- 
 bull with the observation that it enumerated the very rights 
 belonging to a citizen of the United States set forth in the 
 first section of the act, and with the statement that all per- 
 sons born in the United States, being declared by the act 
 citizens of the United States, would thenceforth be entitled 
 to the rights of citizens, and that these were the great fun- 
 damental rights set forth in the act ; and that they were set 
 forth " as appertaining to every freeman." 
 
 The privileges and immunities designated in the second 
 section of the fourth article of the Constitution are, then, 
 according to the decision cited, those which of right belong 
 to the citizens of all free governments, and they can be 
 enjoyed under that clause by the citizens of each state in 
 the several states upon the same terms and conditions as 
 they are enjoyed by the citizens of the latter states. No 
 discrimination can be made by one state against the citi- 
 zens of other states in their enjoyment, nor can any greater 
 imposition be levied than such as is laid upon its own citi- 
 zens. It is a clause which insures equality in the enjoy- 
 ment of these rights between citizens of the several states 
 whilst in the same state. 
 
 Nor is there anything in the opinion in the case of Paul 
 vs. Virginia* which at all militates against these views, 
 as is supposed by the majority of the court. The act of 
 Virginia, of 1866, which was under consideration in that 
 case, provided that no insurance company, not incorporated 
 under the laws of the state, should carry on its business 
 within the state without previously obtaining a license for 
 that purpose ; and that it should not receive such license until 
 
 * 8 Wallace, 168. 
 
20 
 
 it had deposited with the treasurer of the state bonds of a 
 specified character, to an amount varying from thirty to 
 fifty thousand dollars. No such deposit was required of 
 insurance companies incorporated by the state, for carry- 
 ing on their business within the state ; and in the case cited 
 the validity of the discriminating provisions of the statute 
 of Virginia between her own corporations and the corpora- 
 tions of other states, was assailed. It was contended that 
 the statute in this particular was in conflict with that clause 
 of the Constitution which declares that " the citizens of each 
 state shall be entitled to all privileges and immunities of 
 citizens in the several states." But the court answered, 
 that corporations were not citizens within the meaning of 
 this clause ; that the term citizens as there used applied only 
 to natural persons, members of the body politic owing al- 
 legiance to the state, not to artificial persons created by the 
 legislature and possessing only the attributes which the leg- 
 islature had prescribed ; that though it had been held that 
 where contracts or rights of property were to be enforced 
 by or against a corporation, the courts of the United States 
 would, for the purpose of maintaining jurisdiction, consider 
 the corporation as representing citizens of the state, under 
 the laws of which it was created, and to this extent would 
 treat a corporation as a citizen within the provision of the 
 Constitution extending the judicial power of the United 
 States to controversies between citizens of different states, 
 it had never been held in any case which had come under 
 its observation, either in the state or federal courts, that a 
 corporation was a citizen within the meaning of the clause 
 in question, entitling the citizens of each state to the privi- 
 leges and immunities of citizens in the several states. And 
 the court observed, that the privileges and immunities se- 
 cured by that provision were those privileges and immuni- 
 ties which were common to the citizens in the latter states, 
 under their constitution and laws, by virtue of their being 
 citizens ; that special privileges enjoyed by citizens in their 
 own states were not secured in other states by the pro vis- 
 
2J 
 
 \ 
 
 ion ; that it was not intended by it to give to the laws of 
 one state any operation in other* states ; that they could have 
 no such operation except by the permission, express or im- 
 plied, of those states ; and that the special privileges which 
 they conferred must, therefore, be enjoyed at home unless 
 the assent of other states to their enjoyment therein were 
 given. And so the court held, that a corporation, being a 
 grant of special privileges to the corporators, had no legal 
 existence beyond the limits of the sovereignty where created, 
 and that the recognition of its existence by other states, and 
 the enforcement of its contracts made therein, depended 
 purely upon the assent of those states, which could be granted 
 upon such terms and conditions as those states might think 
 proper to impose. 
 
 The whole purport of the decision was, that citizens of 
 one state do not carry with them into other states any special 
 privileges or immunities conferred by the laws of their own 
 states, of a corporate or other character. That decision 
 has no pertinency to the questions involved in this case. 
 The common privileges and immunities which of right be- 
 long to all citizens, stand on a very different footing. These 
 the citizens of each state do carry with them into other 
 states and are secured by the clause in question, in their 
 enjoyment upon terms of equality with citizens of the latter 
 states. This equality in one particular was enforced by this 
 court in the recent case of Ward vs. The State of Maryland, 
 reported in the 12th of Wallace. A statute of that state 
 required the payment of a larger sum from a non-resident 
 trader for a license to enable him to sell his merchandise 
 in the state, than it did of a resident trader, and the court 
 held that the statute in thus discriminating against the non- 
 resident trader contravened the clause securing to the citi- 
 zens of each state the privileges and immunities of citizens 
 of the several states. The privilege of disposing of his 
 property, which was an essential incident to his ownership, 
 possessed by the non-resident, was subjected by the statute 
 of Maryland to a greater burden than was imposed upon a 
 
22 
 
 like privilege of her own citizens. The privileges of the 
 non-resident were in this particular abridged by that legis- 
 lation. 
 
 What the clause in question did for the protection of the 
 citizens of one state against hostile and discriminating legis- 
 lation of other states, the fourteenth amendment does for 
 the protection of every citizen of the United States against 
 hostile and discriminating legislation against him in favor 
 of others, whether they reside in the same or in different 
 states. If under the fourth article of the Constitution 
 equality of privileges and immunities is secured between 
 citizens of different states, under the fourteenth amendment 
 the same equality is secured between citizens of the United 
 States. 
 
 It will not be pretended that under the fourth article of 
 the Constitution any state could create a monopoly in any 
 known trade or manufacture in favor of her own citizens, 
 or any portion of them, which would exclude an equal par- 
 ticipation in the trade or manufacture monopolized by citi- 
 zens of other states. She could not confer, for example, 
 upon any of her citizens the sole right to manufacture shoes 
 or boots or silk, or the sole right to sell those articles in the 
 state so as to exclude non-resident citizens from engaging 
 in a similar manufacture or sale. The non-resident citi- 
 zens could claim equality of privilege under the provisions 
 of the fourth article with the citizens of the state exercising 
 the monopoly as well as with others, and thus, as respects 
 them, the monopoly would cease. If this were not so it 
 would be in the power of the state to exclude at any time 
 the citizens of other states from participation in particular 
 branches of commerce or trade, and extend the exclusion 
 from time to time so as effectually to prevent any traffic 
 with them. 
 
 Now, what the clause in question does for the protection 
 of citizens of one state against the creation of monopolies in 
 favor of citizens of other states, the fourteenth amendment 
 does for the protection of every citizen of the United States 
 
28 
 
 against the creation of any monopoly whatever. The priv- 
 ileges and immunities of citizens of the United States, of 
 every one of them, is secured against abridgment in any 
 form by any state. The fourteenth amendment places them 
 under the guardianship of the national authority. All 
 monopolies in any known trade or manufacture are an in- 
 vasion of these privileges, for they encroach upon the lib- 
 erty of citizens to acquire property and pursue happiness, 
 and were held void at common law in the great case of 
 Monopolies, decided during the reign of Queen Elizabeth. 
 A monopoly is defined " to be an institution or allowance 
 from the sovereign power of the state by grant, commis- 
 sion, or otherwise, to any person or corporation, for the 
 sole buying, selling, making, working, or using of anything 
 whereby any person or persons, bodies politic or corporate, 
 are sought to be restrained of any freedom or liberty they 
 had before, or hindered in their lawful trade." All such 
 grants relating to any known trade or manufacture have 
 been held by all the judges of England, whenever they 
 have come up for consideration, to be void at common law 
 as destroying the freedom of trade, discouraging labor and 
 industry, restraining persons from getting an honest liveli- 
 hood, and putting it in the power of the grantees to enhance 
 the price of commodities. The definition embraces, it will 
 be observed, not merely the sole privilege of buying and 
 selling particular articles, or of engaging in their manu- 
 facture, but also the sole privilege of using anything by 
 which others may be restrained of the freedom or liberty 
 they previously had in any lawful trade, or hindered in 
 such trade. It thus covers in every particular the posses- 
 sion and use of suitable yards, stables, and buildings for 
 keeping and protecting cattle and other animals, and for 
 their slaughter. Such establishments are essential to the 
 free and successful prosecution by any butcher of the lawful 
 trade of preparing animal food for market. The exclusive 
 privilege of suppling such yards, buildings, and other con- 
 veniences for the prosecution of this business in a large 
 
24 
 
 district of country, granted by the act of Louisiana to 
 seventeen persons, is as much a monopoly as though it 
 had granted to the company the exclusive privilege of 
 buying and selling the animals themselves. It equally re- 
 strains the butchers in the freedom and liberty they pre- 
 viously had and hinders them in their lawful trade. 
 
 The reasons given for the judgment in the case of Mo- 
 noplies apply with equal force to the case at bar. In that 
 case a patent had been granted to the plaintiff giving him 
 the sole right to import playing-cards, and the entire traffic 
 in them, and the sole right to make such cards within the 
 realm. The defendant, in disregard of this patent, made 
 and sold some gross of such cards and imported others, and 
 was accordingly sued for infringing upon the exclusive 
 privileges of the plaintiff. As to a portion of the cards 
 made and sold within the realm, he pleaded that he was 
 a haberdasher in London and a free citizen of that city, and 
 as such had a right to make and sell them. The court 
 held the plea good and the grant void, as against the com- 
 mon law and divers acts of Parliament. "All trades," said 
 the court, " as well mechanical as others, which prevent 
 idleness (the bane of the commonwealth) and exercise men 
 and youth in labor for the maintenance of themselves and 
 their families, and for the increase of their substance, to 
 serve the Queen when occasion shall require, are profitable 
 for the commonwealth, and therefore the grant to the 
 plaintiff to have the sole making of them is against the 
 common law and the benefit and liberty of the subject"* The 
 case of Davenant and Hurdis was cited in support of this 
 position. In that case a company of merchant tailors in 
 London, having power by charter to make ordinances for 
 the better rule and government of the company, so that 
 they were consonant to law and reason, made an ordinance 
 that any brother of the society who should have any cloth 
 dressed by a cloth-worker, not being a brother of the so- 
 ciety, should put one-half of his cloth to some brother of 
 
 * 1 Coke Kept., part XI., p. 86. 
 
25 
 
 the same society who exercised the art of a cloth-worker, 
 upon pain of forfeiting ten shillings, "and it was adjudged 
 that the ordinance, although it had the countenance of a 
 charter, was against the common law, because it was against 
 the liberty of the subject ; for every subject, by the law, ha.s 
 freedom and liberty to pat his cloth to be dressed by what cloth- 
 worker he pleases, and cannot be restrained to certain persons, 
 for that in effect would be a monopoly, and, therefore, such 
 ordinance, by color of a charter or any grant by charter to 
 such effect, would be void." 
 
 Although the court, in its opinion, refers to the increase 
 in prices and deterioration in quality of commodities which 
 necessarily result from the grant of monopolies, the main 
 ground of the decision was their interference with the lib- 
 erty of the subject to pursue for his maintenance and that 
 of his family any lawful trade or employment. This liberty 
 is assumed to be the natural right of every Englishman. 
 
 The struggle of the English people against monopolies 
 forms one of the most interesting and instructive chapters 
 in their history. It finally ended in the passage of the 
 statute of 21st James I, by which it was declared " that 
 all monopolies and all com missions, grants, licenses, char- 
 ters, and letters-patent, to any person or persons, bodies 
 politic or corporate, whatsoever, of or for the sole buying, 
 selling, making, working, or using of anything" within the 
 realm or the dominion of Wales, were altogether contrary 
 to the laws of the realm and utterly void, with the excep- 
 tion of patents for new inventions for a limited period, and 
 for printing, then supposed to belong to the prerogative of 
 the King, and for the preparation and manufacture of cer- 
 tain articles and ordnance intended for the prosecution of 
 war. 
 
 The common law of England, as is thus seen, condemned 
 all monopolies in any known trade or manufacture, and 
 declared void all grants of special privileges whereby others 
 could be deprived of any liberty which they previously 
 had, or be hindered in their lawful trade. The statute of 
 4 
 
2(3 
 
 James I, to which I have referred, only embodied the law 
 as it had been previously declared by the courts of England, 
 although frequently disregarded by the sovereigns of that 
 country. 
 
 The common law of England is the basis of the jurispru- 
 dence of the United States. It was brought to this country 
 by the Colonists, together with the English statutes, and 
 was established here so far as it was applicable to their con- 
 dition. That law and the benefit of such of the English 
 statutes as existed at the time of their colonization, and 
 which they had by experience found to be applicable to their 
 circumstances, were claimed by the Congress of the United 
 Colonies in 1774 as a part of their " indubitable rights 
 and liberties."* Of the statutes, the benefit of which was 
 thus claimed, the statute of James I, against monopolies 
 was one of the most important. And when the colonies 
 separated from the mother country no privilege was more 
 fully recognized or more completely incorporated into the 
 fundamental law of the country than that every free sub- 
 ject in the British Empire was entitled to pursue his happi- 
 ness by following any of the known established trades and 
 occupations of the country, subject only to such restraints as 
 equally affected all others. The immortal document which 
 proclaimed the independence of the country declared as self- 
 evident truths that the Creator had endowed all men "with 
 certain inalienable rights, and that among these are life, 
 liberty, and the pursuit of happiness ; and that to secure 
 these rights governments are instituted among men." 
 
 If it be said that the civil law and not the common law 
 is the basis of the jurisprudence of Louisiana, I answer that 
 the decree of Louis XVIth, in 1776, abolished all monopo- 
 lies of trades and all special privileges of corporations, 
 guilds, and trading companies, and authorized every person 
 to exercise, without restraint, his art, trade, or profession, 
 and such has been the law of France and of her colonies 
 ever since, and that law prevailed in Louisiana at the time 
 
 * Journals of Congress, Vol. 1, pp. 28-30. 
 
27 
 
 of her cession to the United States. Since then, notwith- 
 standing the existence in that state of the civil law as the 
 basis of her jurisprudence, freedom of pursuit has been 
 always recognized as the common right of her citizens. 
 But were this otherwise, the fourteenth amendment secures 
 the like protection to all citizens in that state against any 
 abridgment of their common rights, as in other states. 
 That amendment was intended to give practical effect to 
 the declaration of 1776 of inalienable rights, rights which 
 are the gift of the Creator, which the law does not con- 
 fer, but only recognizes. If the trader in London could 
 plead that he was a free citizen of that city against the en- 
 forcement to his injury of monopolies, surely under the 
 fourteenth amendment every citizen of the United States 
 should be able to plead his citizenship of the Republic as a 
 protection against any similar invasion of his privileges and 
 immunities. 
 
 So fundamental has this privilege of every citizen to be 
 free from disparaging and unequal enactments in the pur- 
 suit of the ordinary avocations of life been regarded, that 
 few instances have arisen where the principle has been so 
 far violated as to call for the interposition of the courts. 
 But whenever this has occurred, with the exception of the 
 present cases from Louisiana, which are the most bare- 
 faced and flagrant of all, the enactment interfering with 
 the privilege of the citizen has been pronounced illegal and 
 void. When a case under the same law under which the 
 present cases have arisen came before the Circuit Court of 
 the United States in the District of Louisiana, there was no 
 hesitation on the part of the court in declaring the law, in 
 its exclusive features, to be an invasion of one of the fun- 
 damental privileges of the citizen.* The presiding justice, 
 in delivering the opinion of the court, observed that it 
 might be difficult to enumerate or define what were the es- 
 sential privileges of a citizen of the United States, which a 
 
 * Live Stock, &c., Association vs. The Crescent City, &c., Company, 1 
 Abbott's U. S. Rep., p. 398. 
 
28 
 
 state could not by its laws invade, but that so far as the 
 question under consideration was concerned, it might be 
 safely said that " it is one of the privileges of every Amer- 
 ican citizen to adopt and follow such lawful industrial 
 pursuit, not injurious to the community, as he may see fit, 
 without unreasonable regulation or molestation, and without 
 being restricted by any of those unjust, oppressive, and 
 odious monopolies or exclusive privileges which have been 
 condemned by all free governments." And again, " there 
 is no more sacred right of citizenship than the right to pur- 
 sue unmolested a lawful employment in a lawful manner. 
 It is nothing more nor less than the sacred right of labor." 
 In The City of Chicago vs. Rumpff,* which was before 
 the Supreme Court of Illinois, we have a case similar in 
 all its features to the one at bar. That city being author- 
 ized by its charter to regulate and license the slaughtering 
 of animals within its corporate limits, the common council 
 passed what was termed an ordinance in reference thereto, 
 whereby a particular building was designated for the slaugh- 
 tering of all animals intended for sale or consumption in 
 the city, the owners of which were granted the exclusive 
 right for a specified period to have all such animals slaugh- 
 tered at their establishment, they to be paid a specific sum 
 for the privilege of slaughtering there by all persons exer- 
 cising it. The validity of this action of the corporate au- 
 thorities was assailed on the ground of the grant of exclu- 
 sive privileges, and the court said : " The charter author- 
 izes the city authorities to license or regulate such estab- 
 lishments. Where that body has made the necessary regula- 
 tions required for the health or comfort of the inhabitants, 
 all persons inclined to pursue such an occupation should 
 have an opportunity of conforming to such regulations, 
 otherwise the ordinance would be unreasonable and tend 
 to oppression. Or, if they should regard it for the interest 
 of the city that such establishments should be licensed, the 
 ordinance should be so framed that all persons desiring it 
 
 * 45 Ills., p. 90. 
 
29 
 
 might obtain licenses by conforming to tbe prescribed terms 
 and regulations for the government of such business. We 
 regard it neither as a regulation nor a license of the busi- 
 ness to confine it to one building or to give it to one indi- 
 vidual. Such an action is oppressive, and creates a monop- 
 oly that never could have been contemplated by the gene- 
 ral assembly. It impairs the rights of all other persons, 
 and cuts them off from a share in not only a legal, but a 
 necessary business. Whether we consider this as an ordi- 
 nance or a contract, it is equally unauthorized, as being op- 
 posed to the rules governing the adoption of municipal by- 
 laws. The principle of equality of rights to the corpora- 
 tors is violated by this contract. If the common council 
 may require all of the animals for the consumption of the 
 city to be slaughtered in a single building, or on a particu- 
 ular lot, and the owner be paid a specific sum for the priv- 
 ilege, what would prevent the making a similar contract 
 with some other person that all the vegetables, or fruits, 
 the flour, the groceries, the dry goods, or other commodities, 
 should be sold on his lot and he receive a compensation for 
 the privilege ? We can see no difference in principle." 
 
 It is true that the court in this opinion was speaking of 
 a municipal ordinance, and not of an act of the legislature 
 of a state. But, as it is justly observed by counsel, a legis- 
 lative body is no more entitled to destroy the equality of 
 rights of citizens, nor to fetter the industry of a city, than 
 a municipal government. These rights are protected from 
 invasion by the fundamental law. 
 
 In the case of The Norwich Gas Light Company vs. The 
 Norwich City Gas Company,* which was before the Su- 
 preme Court of Connecticut, it appeared that the common 
 council of the city of Norwich had passed a resolution pur- 
 porting to grant to one Treadway, his heirs and assigns, for 
 the period of fifteen years, the right to lay gas-pipes in the 
 streets of that city, declaring that no other person or cor- 
 poration should, by the consent of the common council, lay 
 
 * 25 Cx>nn.. 19. 
 
30 
 
 gas-pipes in the streets during that time. The plaintiffs 
 having purchased of Treadway, undertook to assert an ex- 
 clusive right to use the streets for their purposes, as against 
 another company which was using the streets for the same 
 purposes. And the court said : "As, then, no considera- 
 tion whatever, either of a public or private character, was 
 reserved for the grant ; and as the business of manufactur- 
 ing and selling gas is an ordinary business, like the manu- 
 facture of leather, or any other article of trade in respect to 
 which the government has no exclusive prerogative, we 
 think that so far as the restriction of other persons than the 
 plaintiifs from using the streets for the purpose of distribut- 
 ing gas by means of pipes, can fairly be viewed as intended 
 to operate as a restriction upon its free manufacture and 
 sale, it comes directly within the definition and description 
 of a monopoly ; and although we have no direct constitu- 
 tional provision against a monopoly, yet the whole theory, 
 of a free government is opposed to such grants, and it does 
 not require even the aid which ma} 7 be derived from the 
 Bill of Rights, the first section of which declares that no 
 man or set of men are entitled to exclusive public emolu- 
 ments or privileges from the community,' to render them 
 void." 
 
 In The Mayor of the City of Hudson vs. Thome,* an 
 application was made to the chancellor of 'New York to dis- 
 solve an injunction restraining the defendants from erect- 
 ing a building in the city of Hudson upon a vacant lot 
 owned by them, intended to be used as a hay-press. The 
 common council of the city had passed an ordinance direct- 
 ing that no person should erect, or construct, or cause to 
 be erected or constructed, any wooden or frame barn, 
 stable, or hay-press of certain dimensions, within certain 
 specified limits in the city, without its permission. It ap- 
 peared, however, that there were such buildings already in 
 existence, not only in compact parts of the city, but also 
 within the prohibited limits, the occupation of which for 
 
 * 7 Paige, 261. 
 
31 
 
 the storing and pressing of hay the common council did not 
 intend to restrain. And the chancellor said : " If the man- 
 ufacture of pressed hay within the compact parts of the city 
 is dangerous in causing or promoting fires, the common 
 council have the power expressly given by their charter to 
 prevent the carrying on of such manufacture ; but as all 
 by-laws must be reasonable, the common council cannot 
 make a by-law which shall permit one person to carry on 
 the dangerous business and prohibit another who has an 
 equal right from pursuing the same business." 
 
 In all these cases there is a recognition of the equality of 
 right among citizens in the pursuit of the ordinary avoca- 
 tions of life, and a declaration that all grants of exclusive 
 privileges, in contravention of this equality, are against 
 common right and void. 
 
 This equality of right, with exemption from all dispara- 
 ging and partial enactments, in the lawful pursuits of life, 
 throughout the whole country, is the distinguishing privi- 
 lege of citizens of the United States. To them, everywhere, 
 all pursuits, all professions, all avocations are open without 
 other restrictions than such as are imposed equally upon all 
 others of the same age, sex, and condition. The state may 
 prescribe such regulations for every pursuit and calling of 
 life as will promote the public health, secure the good order 
 and advance the general prosperity of society, but when 
 once prescribed, the pursuit or calling must be free to be 
 followed by every citizen who is within the conditions des- 
 ignated, and will conform to the regulations. This is the 
 fundamental idea upon which our institutions rest, and un- 
 less adhered to in the legislation of the country our govern- 
 ment will be a republic only in name. The fourteenth 
 amendment, in my judgment, makes it essential to the va- 
 lidity of the legislation of every state that this equality of 
 right should be respected. How widely this equality has 
 been departed from ; how entirely rejected and trampled 
 upon by the act of Louisiana, I have already shown. And 
 it is to me a matter of profound regret that its validity is 
 
32 
 
 recognized by a majority of this court, for by it the right 
 of free labor, one of the most sacred and imprescriptible 
 rights of man, is violated.* As stated by the Supreme Court 
 of Connecticut in the case cited, grants of exclusive priv- 
 ileges, such as is made by the act in question, are opposed 
 to the whole theory of free government, and it requires no 
 aid from any bill of rights to render them void. That only 
 is a free government, in the American sense of the term, 
 under which the inalienable right of every citizen to pur- 
 sue his happiness is unrestrained, except by just, equal, and 
 impartial laws.f 
 
 I am authorized by the Chief Justice, Mr. Justice Swayne, 
 and Mr. Justice Bradley, to state that they concur with me 
 in this dissenting opinion. 
 
 * " The property which every man has in his own labor," says Adam 
 Smith, " as it is the original foundation of all other property, so it is the 
 most sacred and inviolable. The patrimony of the poor man lies in the 
 strength and dexterity of his own hands ; and to hinder him from em- 
 ploying this strength and dexterity in what manner he thinks proper, 
 without injury to his neighbor, is a plain violation of this most sacred 
 property. It is a manifest encroachment upon the just liberty both of 
 the workman and of those who might be disposed to employ him. As it 
 hinders the one from working at what he thinks proper, so it hinders the 
 others from employing whom they think proper." (Smith's Wealth of 
 Nations, b. 1, ch. 10, part 2.) 
 
 In the edict of Louis 16th, in 1776, giving freedom to trades and pro- 
 fessions, prepared, by his minister, Turgot, he recites the contributions 
 that had been made by the guilds and trade companies, and says : "It 
 was the allurement of these fiscal advantages undoubtedly that prolonged 
 the illusion and concealed the immense injury they did to industry and 
 their infraction of natural right. This illusion had extended so far that 
 some persons asserted that the right to work was a royal privilege which 
 the king might sell, and that his subjects were bound to purchase from 
 him. We hasten to correct this error and to repel the conclusion. God in 
 giving to man wants and desires rendering labor necessary for their satis- 
 faction, conferred the right to labor upon all men, and this property is the 
 first, most sacred and imprescriptible of all." w He, therefore, re- 
 
 gards it " as the first duty of his justice, and the worthiest act of benevo- 
 lence, to free his subjects from any restriction upon this inalienable right 
 of humanity." 
 
 f " Civil liberty, the great end, of all human society and government, is 
 that state in which each individual has the power to pursue his own hap- 
 piness according to his own views of his interest, and the dictates of his 
 conscience, unrestrained, except by equal, just, and impartial laws." (1 
 Sharswood's Blackstone, 127, note 8.) 
 
$0uvt 0f the Itoited f tates. 
 
 THE XIYTH AMENDMENT DOES NOT INTERFERE WITH THE 
 
 POLICE POWER OF THE STATES. 
 
 F. Bartemeyer, Plaintiff in Error, 1 Error to the Su- 
 
 vs. }> preme Court of 
 
 The State of Iowa. j the State of Iowa, 
 
 Mr. Justice FIELD concurring, 
 
 I accept the statement made in the opinion of the court, 
 that the act of Iowa of 1860, to which the plea of the defend- 
 ant refers, was only a revision of the act of 1851, and agree 
 that, for this reason, the averment of the ownership of the 
 liquor sold prior to the passage of the act of 1860 did not an- 
 swer the charge for which the defendant was prosecuted. I 
 have no doubt of the power of the state to regulate the sale of 
 intoxicating liquors when such regulation does not amount to 
 the destruction of the right of property in them. The right 
 of property in an article involves the power to sell and dis- 
 pose of such article as well as to use and enjoy it. Any act 
 which declares that the owner shall neither sell it nor dis- 
 pose of it, nor use and enjoy it, confiscates it, depriving him 
 of his property without due process of law. Against such 
 arbitrary legislation by any state the fourteenth amendment 
 affords protection. But the prohibition of sale in any 
 way, or for any use, is quite a different thing from a regu- 
 lation of the sale or use so as to protect the health and 
 morals of the community. All property, even the most 
 
84 
 
 harmless in its nature, is equally subject to the power of the 
 state in this respect with the most noxious. 
 
 !Nb one has ever pretended, that I am aware of, that the 
 fourteenth amendment interferes in any respect with the 
 police power of the state. Certainly no one who desires to 
 give to that amendment its legitimate operation has ever 
 asserted for it any such effect. It was not adopted for any 
 such purpose. The judges who dissented from the opinion 
 of the majority of the court in the Slaughter-House cases 
 never contended for any such position. But, on the con- 
 trary, they recognized the power of the state in its fullest 
 extent, observing that it embraced all regulations aifect- 
 ing the health, good order, morals, peace, and safety of 
 society, that all sorts of restrictions and burdens were im- 
 posed under it, and that when these were not in conflict 
 with any constitutional prohibition or fundamental princi- 
 ples, they could not be successfully assailed in a judicial 
 tribunal. But they said that under the pretence of pre- 
 scribing a police regulation the state could not be permitted 
 to encroach upon any of the just rights of the citizen, which 
 the Constitution intended to guard against abridgment; and 
 because, in their opinion, the act of Louisiana, then under 
 consideration, went far beyond the province of a police 
 regulation, and created an oppressive and odious monopoly, 
 thus directly impairing the common rights of the citizens 
 of the state, they dissented from the judgment of the court. 
 
 They could not then, and do not now, see anything in 
 the act which fell under the denomination of a police or 
 sanitary regulation, except the provisions requiring the land- 
 ing and slaughtering of animals below the city of New Or- 
 leans and the inspection of the animals before they were 
 slaughtered ; and of these. pro visions no complaint was made. 
 All else was a mere grant of special and exclusive privileges. 
 And it was incomprehensible to them then, and it is incom- 
 prehensible to them now, how, in a district of country 
 nearly as large as the State of Rhode Island, and embracing 
 a population of over two hundred thousand souls, any con- 
 
35 
 
 ditioris of health or morals should require that the prepara- 
 tion of animal food, a prime necessity of life, should be 
 entrusted to a single corporation for twenty-five years ; or 
 how, in all that vast district, embracing eleven hundred 
 and fifty-four square miles, there could be only one locality 
 and one building in which animals could with safety to the 
 public health be sheltered and slaughtered. And with all 
 the light shed upon the subject by the elaborate opinion of 
 the majorit\% they do not yet understand that it belongs to 
 the police power of any state to require the owner of ani- 
 mals to give to the butcher a portion of each animal slaugh- 
 tered. If the state can say, the owner shall give the horns 
 and the hoofs, it may say he shall give the hide and the tal- 
 low, or any part of the animal. It may say that the butcher 
 shall retain the four quarters and return to the owner only 
 the head and the feet. The owner may require the very 
 portions he is compelled to surrender for his own business 
 the horns, for example, for the manufacture of combs, and 
 the hoofs for the manufacture of glue, and other portions 
 for equally useful purposes. 
 
 It was because the act of Louisiana transcended the limits 
 of police regulation, and asserted a power in the state to 
 farm out the ordinary avocations of life, that dissent was 
 made to the judgment of the court sustaining the validity 
 of the act. 
 
 It was believed that the fourteenth amendment had taken 
 away the power of the state to parcel out to favored citi- 
 zens the ordinary trades and callings of life, to give to A 
 the sole right to bake bread ; to B the sole right to make 
 hats ; to the sole right to sow grain or plough the fields ; 
 and thus, at discretion, to grant to some the means of live- 
 lihood and withhold it from others. It was supposed that 
 there were no privileges or immunities of citizens more 
 sacred than those which are involved in the right to " the 
 pursuit of happiness," which is usually classed with life and 
 liberty; and that in the pursuit of happiness since that 
 amendment became part of the fundamental law, every one 
 
36 
 
 was free to follow any lawful employment without other re- 
 straint than such as equally affects all other persons. 
 
 Before this amendment and the thirteenth amendment 
 were adopted, the states had supreme authority over all 
 these matters, and the national government, except in a few 
 particulars, could afford no protection to the individual 
 against arbitrary and oppressive legislation. After the civil 
 war had closed, the same authority was asserted and, in the 
 states recently in insurrection, was exercised to the oppres- 
 sion of the freedmen ; and towards citizens of the north 
 seeking residence there, or citizens resident there who had 
 maintained their loyalty during the war for nationality, a 
 feeling of jealousy and dislike existed which could not fail 
 soon to find expression in discriminating and hostile legis- 
 lation. It was to prevent the possibility of such legislation 
 in future, and its enforcement where already adopted, that 
 the fourteenth amendment was directed. It grew out of 
 the feeling that a union which had been maintained by such 
 costly sacrifices was after all worthless, if a citizen could not 
 be protected in all his fundamental rights everywhere 
 north and south, east and west throughout the limits of the 
 Republic. The amendment was not, as held in the opinion 
 of the majority, primarily intended to confer citizenship on 
 the negro race. It had a much broader purpose ; it was 
 intended to justify legislation, extending the protection of 
 the national government over the common rights of all 
 citizens of the United States, and thus obviate objections to 
 the legislation adopted for the protection of the emanci- 
 pated race. It was intended to make it possible for all per- 
 sons, which necessarily included those of every race and color, 
 to live in peace and security wherever the jurisdiction of 
 the nation reached. It, therefore, recognized, if it did not 
 create, a national citizenship, and made all persons citizens 
 except those who preferred to remain under the protection of 
 a foreign government; and declared that their privileges and 
 i mm unities, which embrace the fundamental rights belonging 
 to citizens of all free governments, should not be abridged by 
 
37 
 
 any state. This national citizenship is primary and not 
 secondary. It clothes its possessor, or would do so if not 
 shorn of its efficiency by construction, with the right, when 
 his privileges and immunities are invaded by partial and 
 discriminating legislation, to appeal from his state to his 
 nation, and gives him the assurance that, for his protection, 
 he can invoke the whole power of the government. 
 
 This case was considered by the court in connection with 
 the Slaughter-House cases, although its decision has been 
 so long delayed. I have felt, therefore, called upon to point 
 out the distinction between this case and those cases, and as 
 there has been some apparent misapprehension of the views 
 of the dissenting judges, to restate the grounds of their dis- 
 sent. 
 
 I concur in the judgment in this case. 
 
THE LEGISLATURE OF A STATE CANNOT, BY CONTRACT WITH AN 
 INDIVIDUAL OR A CORPORATION, RESTRAIN, DIMINISH, OR SUR- 
 RENDER ITS POWER TO ENACT LAWS FOR THE PRESERVATION 
 OF THE PUBLIC HEALTH OR THE PROTECTION OF THE PUBLIC 
 MORALS. 
 
 THE EFFECT OF THE FOURTEENTH AMENDMENT TO THE FEDERAL 
 CONSTITUTION IN PREVENTING THE CREATION OF MONOPOLIES 
 IN ANY TRADE OR BUSINESS. 
 
 SUPREME COURT OF THE UNITED STATES. 
 
 The Butchers' Union Slaughter-House 
 and Live-Stock Landing Company, 
 Appellants, 
 
 vs. 
 
 The Crescent City Live-Stock Landing 
 and Slaughter-House Company. 
 
 Appeal from the Circuit 
 Court of the United 
 States for the Eastern 
 District of Louisiana. 
 
 CONCURRING OPINION OF MR. JUSTICE FIELD. * 
 
 I concur in the doctrine declared in the opinion of the 
 court, that the legislature cannot, by contract with an in- 
 dividual or a corporation, restrain, diminish or surrender 
 its power to enact laws for the preservation of the public 
 health or the protection of the public morals. This is a 
 principle of vital importance, and its habitual observance 
 is essential to the wise and valid execution of the trust 
 committed to the legislature. But there are some pro- 
 visions in the act of Louisiana upon which the appellees 
 rely that have not been referred to, and which, from the 
 interest excited by the decision rendered when the act 
 was before us in the Slaughter-House Cases, should be 
 mentioned in connection with the views now expressed. 
 (16 Wall. 36.) 
 
 No one of the judges who then disagreed with the ma- 
 jority of the court denied that the states possessed the ful- 
 lest power ever claimed by the most earnest advocate of 
 
 * Delivered May 5th, 1884, and reported in 111 U. S. Reports, 754. 
 
their reserved rights, to prescribe regulations affecting the 
 health, the good order, the morals, the peace, and the 
 safety of society within their respective limits. When 
 such regulations do not conflict with any constitutional 
 inhibition or natural right, their validity cannot be suc- 
 cessfully controverted. The general government was not 
 formed to interfere with or control them. No aid was re- 
 quired from any external authority for their enforcement. 
 It was only for matters which concerned all the states and 
 which could not be efficiently or advantageously managed 
 hy them separately, that a general and common govern- 
 ment was desired. And the recent amendments to the 
 Constitution have not changed nor diminished their pre- 
 viously existing power to legislate respecting the public 
 health and public morals. But though this power rests 
 with them, it cannot he admitted that, under the pretence 
 of providing for the public health or public morals, they 
 can encroach upon rights which those amendments de- 
 clare shall not be impaired. The act of Louisiana required 
 that the slaughtering of cattle and the preparation of ani- 
 mal food for market should be done outside of the limits 
 of the city of New Orleans. It was competent to make 
 this requirement, and, furthermore, to direct that the ani- 
 mals, ^before being slaughtered, should be inspected, in 
 order to determine whether they were in a fit condition to 
 be prepared for food. The dissenting judges in the 
 Slaughter-House Cases found no fault with these provis- 
 ions, but, on the contrary, approved of them. Had the 
 act been limited to them, there would have been no dis- 
 sent from the opinion of the majority. But it went a 
 great way beyond them. It created a corporation, and 
 gave to it an exclusive right for twenty-five years to keep, 
 within an area of 1,145 square miles, a place where alone 
 animals intended for slaughter could be landed and shel- 
 tered, and where alone they could be slaughtered and 
 their meat prepared for market. It is difficult to under- 
 stand how in a district embracing a population of a quarter 
 
3 
 
 of a million, any conditions of health can require that the 
 preparation of animal food should be intrusted to a single 
 corporation for twenty-five years, or how in a district of 
 such extent, there can he only one place in which animals 
 can, with safety to the public- health, be sheltered and 
 slaughtered. In the grant of these exclusive privileges a 
 monopoly of an ordinary employment and business was 
 created. . 
 
 A monopoly is defined " to be an institution or allow- 
 ance from the sovereign power of the state, by grant, com- 
 mission, or otherwise, to any person or corporation, for the 
 sole buying, selling, making, working, or using of anything 
 whereby any person or persons, bodies politic or corporate, 
 are sought to be restrained of any freedom or liberty they 
 had before, or hindered in their lawful trade." All grants 
 of this kind are void at common law, because they destroy 
 the freedom of trade, discourage labor and industry; re- 
 strain persons from getting an honest livelihood, and put 
 it in the power of the grantees to enhance the price of 
 commodities. They are void because they interfere with 
 the liberty of the individual to pursue a lawful trade or 
 employment. 
 
 The oppressive nature of the principle upon which the 
 monopoly here was granted will more clearly appear if it 
 be applied to other vocations than that of keeping cattle 
 and of preparing animal food for market to the ordinary 
 trades and callings of life to the making of bread, the 
 raising of vegetables, the manufacture of shoes and hats, 
 and other articles of daily use. The granting of an .ex- 
 clusive right to engage in such vocations would be re- 
 pudiated in all communities as an invasion of common 
 right. The state undoubtedly may require many kinds 
 of business to he carried on beyond the thickly settled 
 portions of a city, or even entirely without its limits, es- 
 pecially when attendant odors or noises affect the health 
 or disturb the peace of the neighborhood; but the exer- 
 cise of this necessary power does not warrant granting to 
 
a particular class or to a corporation a monopoly of the 
 business thus removed. It may be that, for the health or 
 safety of a city, the manufacture of beer, or soap, or the 
 smelting of ores, or the casting of machinery should be 
 carried on without its limits, yet it would hardly be con- 
 tended that the power thus to remove the business be- 
 yond certain limits would authorize the granting of a 
 monopoly of it to any one or more persons. And if not 
 a monopoly in business of this character, how can a mo- 
 nopoly for like reasons be granted in the business of pre- 
 paring animal food for market, or of yarding and shelter- 
 ing cattle intended for slaughter? 
 
 As in our intercourse with our fellow men certain prin- 
 ciples of morality are assumed to exist, without which 
 society would be impossible, so certain inherent rights lie 
 at the foundation of all [governmental] action, and upon a 
 recognition of them alone can free institutions be main- 
 tained. These inherent rights have never been more 
 happily expressed than in the Declaration of Independence, 
 that new evangel of liberty to the people: " We hold these 
 truths to be self-evident" that is so plain that their truth 
 is recognized upon their mere statement " that all men 
 are endowed " not by edicts of Emperors, or decrees of 
 Parliament, or acts of Congress, but " by their Creator 
 with certain inalienable rights" that is, rights which 
 cannot be bartered away, or given away, or taken away 
 except in punishment of crime " and that among these 
 are life, liberty, and the pursuit of happiness, and to se- 
 cure these " not grant them but secure them " govern- 
 ments are instituted among men, deriving their just pow- 
 ers from the consent of the governed." 
 
 Among these inalienable rights, as proclaimed in that 
 great document, is the right of men to pursue their happi- 
 ness, by which is meant the right to pursue any lawful 
 business or vocation, in any manner not inconsistent with 
 the equal rights of others, which may increase their pros- 
 perity or develop their faculties, so as to give to them 
 their highest enjoyment. 
 
The common business and callings of life, the ordinary 
 trades and pursuits, which are innocuous in themselves, 
 and have been followed in all communities from time im- 
 memorial, must therefore be free in this country to all 
 alike upon the same conditions. The right to pursue them, 
 without let or hindrance, except that which is applied to 
 all persons of the same age, sex and condition, is a dis- 
 tinguishing privilege of citizens of the United States, and 
 an essential element of that freedom which they claim as 
 their birthright. 
 
 It has been well said that, "The property which every 
 man has in his own labor, as it is the original foundation 
 of all other property, so it is the most sacred and in- 
 violable. The patrimony of the poor man lies in the 
 strength and dexterity of his own hands, and to hinder 
 his employing this strength and dexterity in what man- 
 ner he thinks proper, without injury to his neighbor, is a 
 plain violation of this most sacred property. It is a man- 
 ifest encroachment upon the just liberty both of the work- 
 man and of those who might be disposed to employ him. 
 As it hinders the one from working at what he thinks 
 proper, so it hinders the others from employing whom 
 they think proper." (Adam Smith's "Wealth of Nations, 
 Bk. I, Ch. 10.) 
 
 In this country it has seldom been held, and never in 
 so odious a form as is here claimed, that an entire trade 
 and business could be taken from citizens and vested in a 
 single corporation. Such legislation has been regarded 
 everywhere else as inconsistent with civil liberty. That 
 exists only where every individual has the power to pur- 
 sue his own happiness according to his own views, unre- 
 strained except by equal, just, and impartial laws. The 
 act of Louisiana compelled more than a thousand persons 
 to abandon their regular business, and to surrender it to 
 a corporation to which was given an exclusive right to 
 pursue it for twenty-five years. What was lawful to these 
 thousand persons the day before the law took effect was 
 
unlawful the day afterwards. With what intense indig- 
 nation would a law be regarded that should, in like man- 
 ner, turn over the common trades of the community to a 
 single corporation. I cannot believe that what is termed 
 in the Declaration of Independence a God-given and an 
 inalienable right can be thus ruthlessly taken from the 
 citizen, or that there can be any abridgment of that right 
 except by regulations alike affecting all persons of the 
 same age, sex, and condition. It cannot be that a state 
 may limit to a specified number of its people the right to 
 practice law, the right to practice medicine, the right to 
 preach the gospel, the right to till the soil, or to pursue 
 particular business or trades, and thus parcel out to differ- 
 ent parties the various vocations and callings of life. The 
 first section of the Fourteenth Amendment was, among 
 other things, designed to prevent all discriminating legis- 
 lation for the benefit of some to the disparagement of 
 others, and when rightly enforced as other prohibitions 
 upon the state, not by legislation of a penal nature, but 
 through the courts, no one will complain. The disfran- 
 chising provisions of the third section naturally created 
 great hostility to the whole amendment. They were re- 
 garded by many wise and good men as impolitic, harsh 
 and cruel; and the manner in which the first section has 
 been enforced by penal enactments against legislators and 
 governors has engendered wide-spread and earnest hos- 
 tility to it. Communities, like individuals, resent even 
 favors ungraciously bestowed. The appropriate mode of 
 enforcing the amendment is, in my judgment, that which 
 has been applied to other previously existing constitutional 
 prohibitions, such as the one against a state passing a law 
 impairing the obligation of contracts, or a bill of attain- 
 der, or an ex post facto law. The only provisions deemed 
 necessary to annul legislation of this kind have been such 
 as facilitated proceedings for that purpose in the courts; 
 no other can be appropriate against the action of a state. 
 Thus enforced there would be little objection to the pro- 
 
visions of the first section of the amendment. No one 
 would object to the clause forbidding a state to abridge 
 the privileges and immunities of citizens of the United 
 States, that is, to take away or impair their fundamental 
 rights. No one would object to the clause which declares 
 that no state shall deprive any person of life, liberty, or 
 property without due process of law, nor to the provision 
 which declares that no state shall deny to any person 
 within its jurisdiction the equal protection of the laws. If 
 the first section of the amendment is thus applied as a re- 
 striction against the impairment of fundamental rights, it 
 will not transfer to the federal government the protection 
 of all private rights, as is sometimes supposed, any more 
 than the inhibition against impairing the obligation of 
 contracts transfers to the federal government the cogni- 
 zance of all contracts. It does not limit the subjects upgn 
 which the states can legislate. Upon every matter, in re- 
 lation to which previously to its adoption they could have 
 acted, they may still act. They can now, as then, legislate 
 to promote health, good order and peace, to develop their 
 resources, enlarge their industries, and advance their pros- 
 perity. It only inhibits discriminating and partial enact- 
 ments, favoring some to the impairment of the rights of 
 others. The principal, if not the sole, purpose of its pro- 
 hibitions is to prevent any arbitrary invasion by state au- 
 thority of the rights of person and property, and to secure 
 to every one the right to pursue his happiness unrestrained 
 except by just, equal, and impartial laws. 
 
 The first section of the amendment is stript of all its 
 protective force, if its application be limited to the privi- 
 leges and immunities of citizens of the United States as 
 distinguished from citizens of the states, and thus its pro- 
 hibition be extended only to the abridgment or impair- 
 ment of such rights, as the right to come to the seat of 
 government, to secure any claim they may have upon that 
 government, to transact any business with it, to seek its 
 protection, to share its offices, to engage in administering 
 
8 
 
 its functions, to have free access to its seaports, to demand 
 its care and protection over life, liberty and property on 
 the high seas, or within the jurisdiction of a foreign gov- 
 ernment, the right to peaceably assemble and petition for 
 redress of grievances, and the right to use the navigable 
 waters of the United States, which are specified in the 
 opinion in the Slaughter-House Cases as the special rights 
 of such citizens. If thus limited, nothing was accom- 
 plished by adopting it. The states could not previously 
 have interfered with these privileges and immunities, or 
 any other privileges and immunities which citizens en- 
 joyed under the Constitution and laws of the United 
 States. Any attempted impairment of them could have 
 been as successfully resisted then as now. The Constitu- 
 tion and laws of the United States were as much then as 
 now the supreme law of the land, which all officers of the 
 state governments were then, as now, bound to obey. 
 
 Whilst, therefore, I fully concur in the decision of the 
 court that it was entirely competent for the state to annul 
 the monopoly features of the original act incorporating the 
 plaintiff, I am of opinion that the act, in creating the mo- 
 nopoly in an ordinary employment and business, was to 
 that extent against common right and void. 
 
THE 
 
 RIGHT OF CONGRESS 
 
 TO 
 
 PUNISH OFFICERS OF A STATE 
 
 FOR 
 
 THE MANNER IN WHICH THEY DISCHARGE THEIR 
 DUTIES UNDER ITS LAWS 
 
 DENIED 
 
 AND 
 
 THE RELATIONS BETWEEN THE FEDERAL 
 
 GOVERNMENT AND THE STATE 
 
 GOVERNMENTS STATED 
 
 ' 
 
 -. 
 
THE 
 
 RIGHT OF CONGRESS 
 
 TO 
 
 PUNISH OFFICERS OF A STATE 
 
 FOR 
 
 THE MANNER IN WHICH THEY DISCHARGE THEIR 
 DUTIES UNDER ITS LAWS 
 
 DENIED 
 
 AND 
 
 THE RELATIONS BETWEEN THE FEDERAL 
 
 GOVERNMENT AND THE STATE 
 
 GOVERNMENTS STATED 
 
 THE DISSENTING OPINION 
 
 OF 
 
 MR. JUSTICE FIELD 
 
 IN 
 
 EX-PARTE VIRGINIA 
 
 NEW YORK AND ALBANY 
 BANKS & BROTHERS, LAW PUBLISHERS 
 
PRESS or J. J. LITTLE & Co., NEW YORK. 
 
SUPKEME COURT OF THE UNITED STATES. 
 
 Ex PARTE VIRGINIA. 
 
 Petition of J. D. COLES, and of the Commonwealth, for a writ 
 of Habeas Corpus. 
 
 DISSENTING OPINION OF ME. JUSTICE FIELD.* 
 
 I dissent from the judgment of the court in this case, and 
 from the reasons by which it is supported ; and I will state the 
 grounds of my dissent. 
 
 In Virginia, all male citizens between the ages of twenty- 
 one and sixty, who are entitled to vote and hold office under 
 the Constitution and laws of the State, are liable, with certain 
 exceptions not material to be here mentioned, to serve as 
 jurors. The judge of each county or corporation court is re- 
 quired to prepare annually a list of such inhabitants of the 
 the county or corporation, not less than one hundred, nor ex- 
 ceeding three hundred in number, " as he shall think well 
 qualified to serve as jurors, being persons of sound judgment 
 and free from legal exception." The name of each person on 
 the list thus prepared is to be written on a separate ballot and 
 placed in a box to be kept by the clerk of the court. From 
 this box the names of persons to be summoned as grand and 
 petit jurors of the county are to be drawn. 
 
 The law in thus providing for the preparation of the list of 
 persons, from whom the jurors are to be taken, makes no dis- 
 crimination against persons of the colored race. The judge of 
 the county or corporation court is restricted in his action only 
 by the condition, that the persons selected shall, in his opinion, 
 
 * Delivered at the October Term, 1879, and reported in 100 U. S. Reports, 
 349. 
 
4 EX PARTE VIRGINIA. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 be "well qualified to serve as jurors," be "of sound judg- 
 ment," and " free from legal exception." "Whether they possess 
 these qualifications, is left to his determination ; and, as I shall 
 attempt hereafter to show, for the manner in which he dis- 
 charges this duty he is responsible only to the State, whose 
 officer he is and whose law he is bound to enforce. 
 
 The petitioner, J. D. Coles, is the judge of the County Court 
 of the County of Pittsylvania, in Virginia, and has held that 
 office for some years. It is not pretended that, in the dis- 
 charge of his judicial duties, he has ever selected as jurors 
 persons who were not qualified to serve in that character ; or 
 who were not of sound judgment, or who were not free from 
 legal exception. It is not even suggested in argument, that 
 he has not at all times faithfully obeyed the law of the State ; 
 yet he has been indicted in the District Court of the United 
 States for the Western District of Virginia for having, on some 
 undesignated day in the year 1878, excluded and failed to 
 select as grand and petit jurors, citizens of the county, on 
 account of race, color, and previous condition of servitude. 
 The indictment does not state who those citizens were, or set 
 forth any particulars of the offence, but charges it in the gene- 
 ral words of a definition. The District Court, nevertheless, 
 issued a bench warrant, upon which the judge was arrested 
 and, refusing to give bail, he is held in custody to answer the 
 indictment. He, therefore, petitions for a certiorari to that 
 court to send up the record of its proceedings for our examina- 
 tion, and for a writ of habeas corpus, alleging that its action 
 was without jurisdiction, and that his imprisonment thereunder 
 is unlawful ; and he prays to be released therefrom. 
 
 The Commonwealth of Virginia has also presented a similar 
 petition, declaring that she is injured by being deprived of the 
 services of her judicial officer, by his unlawful arrest and im- 
 prisonment. 
 
 If the District Court had no jurisdiction, as alleged, of the 
 matters charged against the county judge ; if they constitute 
 no public offence for which he could be held, his arrest and 
 imprisonment upon process issued upon the indictment were 
 unlawful, and his petition should be granted. 
 
RELATIONS BETWEEN THE FEDERAL GOVERN- 5 
 MENT AND THE STATE GOVERNMENTS. 
 
 It lias been settled by this court upon full examination, and 
 after some conflict of opinion among its members, that the 
 writ of habeas corpus is a mode provided for the exercise of 
 its appellate jurisdiction, whenever by any unauthorized action 
 of an inferior tribunal, whether it be by its order, decree, or 
 process, a citizen is restrained of his personal liberty ; and 
 that a certiorari will issue in connection with the writ, to bring 
 up the record of the inferior tribunal for examination. In 
 such cases this court will look into the record, to determine 
 not whether the inferior tribunal has erred in its action, but 
 whether it has exceeded its jurisdiction in the imprisonment of 
 the petitioner. Ex parte Yerger, 8 Wall. 85 ; Ex parte Lange, 
 18 Ibid. 166. 
 
 The indictment is founded upon the fourth section of the 
 act of Congress of March 1st, 1875, " to protect all citizens in 
 their civil and legal rights," which declares : " That no citizen 
 possessing all other qualifications, which are or may be pre- 
 scribed by law, shall be disqualified for service as grand or 
 petit juror in any court of the United States, or of any State, 
 on account of race, color, or previous condition of servitude ; 
 and any officer or other person charged with any duty in the 
 selection or summoning of jurors, who shall exclude or fail to 
 summon any citizen for the cause aforesaid, shall, on convic- 
 tion thereof, be deemed guilty of a misdemeanor, and be fined 
 not more than five thousand dollars." 
 
 In what I have to say, I shall endeavor to show that the 
 District Court in issuing its process for the arrest of the de- 
 fendant, and in imprisoning him, exceeded its jurisdiction ; 
 1st, because, assuming that the act of 1875 is constitutional 
 and valid legislation, the indictment describes no offence un- 
 der it, but is void on its face ; and, 2d, because that act in the 
 section cited, so far as it relates to jurors in the State courts, 
 is unconstitutional and void. 
 
 The indictment merely repeats the general language of the 
 statute. It avers that the defendant, being judge of Pittsyl- 
 vania County and an officer charged by law with the selection 
 of jurors to serve in the Circuit and County Courts of the 
 county, excluded and failed to select as jurors, on account of 
 
6 EX PAETE VIRGINIA. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 race, color, and previous condition of servitude, certain citi- 
 zens of the county possessing all other qualifications pre- 
 scribed by law ; but it names no citizens who were thus ex- 
 cluded, and of course designates no specific traversable offence. 
 It is essential to a valid indictment, that it should set forth 
 the offence, with such particulars of time, place, and person, 
 that the accused may know the nature of the charge and be 
 able to prepare to meet it. It is not enough to repeat the 
 definition of the offence in the general language of the statute, 
 and then aver that the defendant has been guilty of the offence 
 thus defined, without other specification. It is not sufficient, 
 for example, to charge in an indictment that the defendant 
 has been guilty of murder, without stating the time and place 
 of the offence, and the name of the person murdered, or, if his 
 name be unknown, giving such a description as to identify 
 him. An indictment without such specification would be 
 merely a collection of pointless words. This doctrine is 
 only common learning ; it is found in the hornbooks of the 
 law; it is on the pages thumbed by the student in his first 
 lessons in criminal procedure. 
 
 The Constitution, in its 6th amendment, strikes with nul- 
 lity all such vague accusations as are embraced in this indict- 
 ment. It declares, repeating in this respect the doctrine of 
 the common law, that, in all criminal prosecutions, the ac- 
 cused shall " be informed of the nature and cause of the ac- 
 cusation " against him ; and this means that all the essential 
 ingredients of the offence charged must be stated, embracing, 
 with reasonable certainty, the particulars of time, place, and 
 person or property. It is only by such information that the 
 accused will be enabled to prepare his defence, and avail him- 
 self of his acquittal or conviction against any further prose- 
 cution for the same cause. " This principle," says Bishop in 
 his treatise, " that the indictment must contain an allegation 
 of every fact which is legally essential to the punishment to 
 be inflicted, pervades the entire system of the adjudged law of 
 criminal procedure. It is not made apparent to our under- 
 standings by a single case only, but by all the cases. Wher- 
 ever we move in this department of our jurisprudence, we 
 
RELATIONS BETWEEN THE FEDERAL GOVERN- 7 
 MENT AND THE STATE GOVERNMENTS. 
 
 come in contact with it. We can no more escape from it than 
 from the atmosphere which surrounds us." (Sec. 81.) To 
 the same effect is the language of Archbold, in his treatise on 
 Criminal Practice and Pleading. " The indictment," he says, 
 " must state all the facts and circumstances comprised in the 
 definition of the offence, by the rule of the common law or 
 statute on which the indictment is founded. And these must 
 be stated with clearness and certainty, otherwise the indict- 
 ment will be bad." And he states that the principal rule as 
 to the certainty required in an indictment may be laid down 
 thus : " That where the definition of an offence, whether by a 
 rule of the common law or by statute, includes generic terms 
 (as it necessarily must), it is not sufficient that the indictment 
 should charge the offence in the same generic terms as in the 
 definition, but it must state the species it must descend to 
 particulars." (p. 88.) This doctrine is fully stated and illus- 
 trated in the Cruikshank Case, both in the prevailing and dis- 
 senting opinion. (92 U. S., 558 and 568.) Tested by it, the 
 indictment here is but a string of words, presenting no speci- 
 fic offence, and, therefore, not justifying the issue of any proc- 
 ess for the arrest and imprisonment of the petitioner. 
 
 It is difficult to understand how an indictment so defective 
 could have been drawn by the public prosecutor, unless we 
 accept, as an explanation of it, the extraordinary statement of 
 counsel, that the district judge instructed the grand jury 
 to the effect, that whenever it appeared that a State judge, in 
 discharging the duty imposed on him by the law of the State 
 to prepare annually a list of such inhabitants of his county as 
 he should " think well qualified to serve as jurors, being per- 
 sons of sound judgment and free from legal exception," had 
 never put colored persons on the jury lists, it was to be pre- 
 sumed that his failure to do so was because of their race, 
 color, or previous condition of servitude, and that it was the 
 duty of the grand jury to indict him for that offence. In the 
 face of this ruling no defence could be made by the accused, 
 although he may have exercised at all times his best judgment 
 in the selection of qualified persons, unless he could prove, 
 what in most cases would be impossible, that in a county of 
 
8 EX PARTE VIRGINIA. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 many thousand inhabitants there was not a colored person 
 qualified to serve as a juror. With this ruling there could be 
 no necessity of alleging in the indictment anything beyond the 
 general failure to put colored persons on the jury list, a fact 
 which could not be disputed, and it would sufficiently inform 
 the accused that he must be prepared, in order to rebut the 
 presumption of guilt, to prove that there were no persons of 
 the colored race in the county qualified to act as jurors. It is 
 difficult to speak of this ruling in the language of moderation. 
 
 My second position is that the fourth section of the act of 
 1875, so far as it applies to the selection of jurors in the State 
 courts, is unconstitutional and void. Previous to the late 
 amendments it would not have been contended, by any one 
 familiar with the Constitution, that Congress was vested with 
 any power to exercise supervision over the conduct of State 
 officers in the discharge of their duties under the laws of the 
 State, and prescribe a punishment for disregarding its direc- 
 tions. It would have been conceded that the selection of jurors 
 was a subject exclusively for regulation by the States ; that it 
 was for them to determine who should act as jurors in their 
 courts, from what class they should be taken, and what qualifi- 
 cations they should possess ; and that their officers in carrying 
 out the laws in this respect were responsible only to them. 
 The States could have abolished jury trials altogether, and re- 
 quired all controversies to be submitted to the courts without 
 their intervention. The sixth and seventh amendments, in 
 which jury trials are mentioned, apply only to the federal 
 courts, as has been repeatedly adjudged. 
 
 The government created by the Constitution was not de- 
 signed for the regulation of matters of purely local concern. 
 The States required no aid from any external authority to 
 manage their domestic affairs. They were fully competent to 
 provide for the due administration- of justice between their own 
 citizens in their own courts, and they needed no directions in 
 that matter from any other government, any more than they 
 needed directions as to their highways and schools, their hos- 
 pitals and charitable institutions, their public libraries, or the 
 magistrates they should appoint for their towns and counties. 
 
DELATIONS BETWEEN THE FEDERAL GOVERN- 9 
 MENT AND THE STATE GOVERNMENTS. 
 
 It was only for matters which concerned all the States, and 
 which could not be managed by them in their independent 
 capacity, or managed only with great difficulty and embarrass- 
 ment, that a general and common government was desired. 
 Whilst they retained control of local matters it was felt neces- 
 sary that matters of general and common interest, which they 
 could not wisely and efficiently manage, should be entrusted 
 to a central authority. And so to the common government 
 which grew out of this prevailing necessity, was granted exclu- 
 sive jurisdiction over external affairs, including the great 
 powers of declaring war, making peace, and concluding treaties ; 
 but only such powers of internal regulation were conferred as 
 were essential to the successful and efficient working of the 
 government established, to facilitate intercourse and com- 
 merce between the people of the different States, and secure 
 to them equality of protection in the several States. 
 
 That the central government was created chiefly for matters 
 of a general character, which concerned all the States and their 
 people, and not for matters of interior regulation, is shown as 
 much by the history of its formation, as by the express lan- 
 guage of the Constitution. The Union preceded the Constitu- 
 tion. As happily expressed by the late chief justice, " it began 
 among the colonies and grew out of common origin, mutual 
 sympathies, kindred principles, similar interests, and geo- 
 graphical relations. It was confirmed and strengthened by 
 the necessities of war, and received definite form and character 
 and sanction from the Articles of Confederation." Texas v. 
 White, 1 Wall. 725. Those articles were prepared by the Con- 
 tinental Congress, which was called to provide measures for the 
 common defence of the colonies against the encroachments of 
 the British crown, and which, failing to secure redress, declared 
 their independence. Its members foresaw that when the inde- 
 pendence of the colonies was established and acknowledged, 
 their condition as separate and independent States would be 
 beset with clangers threatening their peace and safety ; that 
 disputes arising from conflicting interests and rivalries, always 
 incident to neighboring nations, would lead to armed collisions 
 and expose them to re-conquest by the mother country. To 
 
10 EX PAKTE VIRGINIA. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 provide against the possibility of evils of this kind, the Articles 
 of Confederation were prepared and submitted to the legisla- 
 tures of the several States, and finally in 1781 were adopted. 
 They declared that the States entered into a firm league of 
 friendship with each other for their common defence ; the 
 security of their liberties and their mutual and general welfare ; 
 and they bound themselves to assist each other against attacks 
 on account of religion, sovereignty, trade or any other pre- 
 tence. They clothed the new government created by them 
 with powers supposed to be ample to secure these ends, and 
 declared that there should be freedom of intercourse and com- 
 merce between the inhabitants of the several States. They 
 provided for a general Congress, and among other things, in- 
 vested it with the exclusive power of determining on peace and 
 war, except in case of invasion of a State by enemies or immi- 
 nent danger of such invasion by Indians ; of sending and receiv- 
 ing ambassadors, entering into treaties and alliances ; of regu- 
 lating the aUoy and value of coin struck by the authority 
 of the States or of the United States ; of fixing the standard 
 of weights and measures ; of regulating the trade and manag- 
 ing all affairs with the Indians ; and of establishing and regu- 
 lating post offices from one State to another; and they placed 
 numerous restraints upon the States. But by none of the 
 articles was any interference authorized with the purely in- 
 ternal affairs of the States, or with any of the instrumentalities 
 by which the States administered their governments and dis- 
 pensed justice among their people ; and they declared in terms 
 that each State retained its sovereignty, freedom, and inde- 
 pendence, and every power, jurisdiction, and right which was 
 not by the articles expressly delegated to the United States in 
 Congress assembled. 
 
 When the government of the Confederation failed, chiefly 
 through the want of all coercive authority to carry into effect 
 its measures, its power being only that of recommendation to 
 the States, and the present Constitution was adopted, the same 
 general ends were sought to be attained, namely, the creation 
 of a central government, which would take exclusive charge of 
 all our foreign relations, representing the people of all the 
 
RELATIONS BETWEEN THE FEDERAL GOVERN- 11 
 MENT AND THE STATE GOVERNMENTS. 
 
 States in that respect as one nation, and would at the same 
 time secure at home freedom of intercourse between the 
 States, equality of protection to citizens of each State in the 
 several States, uniformity of commercial regulations, a com- 
 mon currency, a standard of weights and measures, one postal 
 system, and such other matters _as concerned all the States 
 and their people. 
 
 Accordingly, the new government was invested with powers 
 adequate to the accomplishment of these purposes, with which 
 it could act directly upon the people, and not by recommenda- 
 tion to the States, and enforce its measures through tribunals 
 and officers of its own creation. There were also restraints 
 placed upon the action of the States to prevent interference 
 with the authority of the new government, and to secure to 
 all persons protection against punishment by legislative de- 
 cree, and insure the fulfilment of contract obligations. But the 
 control of matters of purely local concern, not coming within the 
 scope of the powers granted, or the restraints mentioned, was 
 left, where it had always existed, with the States. The new gov- 
 ernment being one of granted powers, its authority was limited 
 by them and such as were necessarily implied for their execu- 
 tion. But lest from a misconception of their extent these powers 
 might be abused, the tenth amendment was at an early day 
 adopted, declaring 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." 
 
 Now, if we look into the Constitution we shall not find a 
 single word from its opening to its concluding line, nor in any 
 of the amendments in force before the close of the civil war, 
 nor, as I shall hereafter endeavor to show, in those subse- 
 quently adopted, which authorizes any interference by Con- 
 gress with the States in the administration of their govern- 
 ments, and the enforcement of their laws with respect to any 
 matter over which jurisdiction was not surrendered to the 
 United States. The design of its framers was not to destroy 
 the States, but to form a more perfect union between them, 
 and whilst creating a central government for certain great pur- 
 poses, to leave to the States in all matters, the jurisdiction of 
 
12 EX PARTE VIRGINIA. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 which was not surrendered, the functions essential to separate 
 and independent existence. And so the late Chief Justice, 
 speaking for the court in 1869, said : " Not only, therefore, 
 can there be no loss of separate and independent autonomy to 
 the States, through their union under the Constitution, but 
 it may be not unreasonably said that the preservation of the 
 States and the maintenance of their governments, are as much 
 within the design and care of the Constitution as the preserva- 
 tion of the Union and the maintenance of the national govern- 
 ment," and then he adds, in that striking language which gives 
 to an old truth new force and significance, that "the Constitu- 
 tion, in all its provisions/looks to. an indestructible Union com- 
 posed of indestructible States." Texas v. White, 1 Wall. 725. 
 
 And Mr. Justice Nelson, also speaking for the Court, in 
 1871, used this language : " The general government, and the 
 States, although both exist within the same territorial limits, 
 are separate and distinct sovereignties, acting separately and 
 independently of each other, within their respective spheres. 
 The former in its appropriate sphere is supreme : but the 
 States within the limits of their powers not granted, or, in the 
 language of the tenth amendment, ' reserved,' are as inde- 
 pendent of the general government as that government within 
 it's sphere is independent of the States." And again : " We 
 have said that one of the reserved powers was that to estab- 
 lish a judicial department ; it would have been more accurate, 
 and in accordance with the existing state of things at the 
 time, to have said the power to maintain a judicial department. 
 All of the thirteen States were in the possession of this power 
 and had exercised it at the adoption of the Constitution ; and 
 it is not pretended that any grant of it to the general govern- 
 ment is found in that instrument. It is, therefore, one of the 
 sovereign powers vested in the States by their Constitutions, 
 which remained unaltered and unimpaired, and in respect to 
 which the State is as independent of the general government 
 as that government is independent of the States." The Collector 
 v. Day, 11 Wall. 124-6. 
 
 The cases of Texas v. White, and Collector v. Day, were 
 decided after the thirteenth and fourteenth amendments, upon 
 
RELATIONS BETWEEN THE FEDERAL GOVERN- 13 
 MENT AND THE STATE GOVERNMENTS. 
 
 which it is sought to maintain the legislation in question, were 
 adopted ; and with their provisions the Chief Justice and Mr. 
 Justice Nelson, and the court for which they spoke, were 
 familiar. Yet neither they, nor any other judge of the court, 
 suggested that the doctrines announced in the opinions from 
 which I have quoted, were in any respect modified or affected 
 by the amendments. 
 
 Nothing, in my judgment, could have a greater tendency to 
 destroy the independence and autonomy of the States ; reduce 
 them to a humiliating and degrading dependence upon the 
 central government ; engender constant irritation ; and destroy 
 that domestic tranquility which it was one of the objects of 
 the Constitution to insure, than the doctrine asserted in this 
 case, that Congress can exercise coercive authority over judi- 
 cial officers of the States in the discharge of their duties under 
 State laws. It will be only another step in the same direction 
 towards consolidation, when it assumes to exercise similar 
 coercive authority over governors and legislators of the States. 
 
 The Constitution declares that a "person charged in any State 
 with treason, felony, or other crime, who shall flee from justice 
 and be found in another State, shall, on demand of the ex- 
 ecutive authority of the State from which he fled, be delivered 
 up, to be removed to the State having jurisdiction of the crime." 
 And yet in the case of The Commonwealth of Kentucky v. Den- 
 nison, where a fugitive from justice from Kentucky was de- 
 manded from the governor of Ohio, and on his refusal appli- 
 cation was made to this court for a mandamus to compel him 
 to perform his duty in this respect, it was held that there was 
 no clause or provision in the Constitution which armed the 
 government of the United States with authority to compel the 
 executive of a State to perform his duty, nor to inflict any 
 punishment for his neglect or refusal. " Indeed, such a power," 
 said Mr. Chief Justice Taney, speaking for the whole court, 
 " would place every State under the control and dominion of 
 the general government, even in the administration of its in- 
 ternal concerns and reserved rights." 24 How. 107. And 
 Mr. Justice Nelson, in the case of Collector v. Day, where it 
 was held that it was not competent for Congress to impose a 
 
14 EX PARTE VIRGINIA. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 tax upon the salary of a judicial officer of a State, said, that 
 " any government whose means employed in conducting its 
 operations are made subject to the control of another and dis- 
 tinct government, can exist only at the mercy of that govern- 
 ment." I could add to these authorities, if anything more 
 were required, that all the recorded utterances of the states- 
 men, who participated in framing the Constitution and urging 
 its adoption, and of the publicists and jurists who have since 
 studied its language and aided in the enforcement of its pro- 
 visions, are inconsistent with the pretension advanced in this 
 case by the counsel of the government. 
 
 The duties of the county judge in the selection of jurors were 
 judicial in their nature. They involved the exercise of discre- 
 tion and judgment. He was to determine who were qualified to 
 serve in that character, and for that purpose whether they pos- 
 sessed sound judgment and were free from legal exceptions. 
 The law under which he acted had been in force for many 
 years, and had been always considered by the judicial authori- 
 ties of Virginia to be in conformity with its Constitution, which 
 inhibits the legislature from requiring of its judges any other 
 than judicial duties. A test as to the character of an act is 
 found in the power of a writ of mandamus to enforce its per- 
 formance in a particular way. If the act be a judicial one, the 
 writ can only require the judge to proceed in the discharge of 
 his duty with reference to it ; the manner of performance can- 
 not be dictated. Here the writ could not command the coun- 
 ty judge to select as jurors any particular persons, black or 
 white, but only to proceed and select such as are qualified, its 
 command in that respect being subject to the limitation inci- 
 dent to all commands of such writs upon judicial officers 
 touching judicial acts. 
 
 The thirteenth and fourteenth amendments are relied upon, 
 as already stated, to support the legislation in question. The 
 thirteenth amendment declares : " That neither slavery nor in- 
 voluntary servitude, except as a punishment for crime whereof 
 the party shall have been duly convicted, shall exist within 
 the United States, or any place subject to their jurisdiction." 
 The fourteenth amendment, in its first section, which is the 
 
\ 
 
 RELATIONS BETWEEN THE FEDERAL GOVERN- 15 
 MENT AND THE STATE GOVERNMENTS. 
 
 only one having any bearing upon the questions involved in 
 this case, declares that : " All persons born or naturalized in 
 the United States, and subject to the jurisdiction thereof, are 
 citizens of the United States and of the State wherein they re- 
 side. No State shall 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 per- 
 son within its jurisdiction^ the equal protection of the laws." 
 The fifteenth amendment, which declares that " The right of 
 citizens of the United States to vote shall not be denied or 
 abridged by the United States or by any State, on account of 
 race, color, or previous condition of servitude," is not material 
 to the question before us, except as showing that it was only 
 with respect to the suffrage that an interdict was in terms 
 placed against legislation on account of race, color or previous 
 condition of servitude. Equality in their civil rights was in 
 other ways secured to persons of the colored race ; and the bal- 
 lot being assured to them, an effectual means against unjust 
 legislation was placed in their hands. To each of these amend- 
 ments a clause is added authorizing Congress to enforce its 
 provisions by " appropriate legislation." 
 
 The history of the amendments is fresh in the recollection 
 of all of us. They grew out of the late civil war and the events 
 which followed it. They were primarily designed to give free- 
 dom to persons of the African race, prevent their future en- 
 slavement, make them citizens, prevent discriminating State 
 legislation against their rights as freemen, and secure to them 
 the ballot. The generality of the language used necessarily 
 extends some of their provisions to all persons of every race 
 and color; but in construing the amendments and giving effect 
 to them, the occasion of their adoption and the purposes they 
 were designed to attain should be always borne in mind. Nor 
 should it be forgotten that they are additions to the previous 
 amendments, and are to be construed in connection with them 
 and the original Constitution as one instrument. They .do not, 
 in terms, contravene or repeal anything which previously ex- 
 isted in the Constitution and those amendments. Aside from 
 
16 EX PARTE VIRGINIA. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 the extinction of slavery, and the declaration of citizenship, 
 their .provisions are merely prohibitory upon the States ; and 
 there is nothing in their language or purpose which indi- 
 cates that they are to be construed or enforced in any way 
 different from that adopted with reference to previous restraints 
 upon the States. The provision authorizing Congress to en- 
 force them by appropriate legislation does not enlarge their 
 scope, nor confer any authority which would not have existed 
 independently of it. No legislation would be appropriate 
 which should contravene the express prohibitions upon Con- 
 gress previously existing, as, for instance, that it should not 
 pass a bill of attainder or an ex post facto law. Nor would 
 legislation be appropriate which should conflict with the im- 
 plied prohibitions upon Congress. They are as obligatory as 
 the express prohibitions. The Constitution, as already stated, 
 contemplates the existence and independence of the States in 
 all their reserved powers. If the States were destroyed there 
 could of course be no United States. In the language of this 
 court, in Collector v. Day, " without them the general govern- 
 ment itself would disappear from the family of nations." 
 Legislation could not, therefore, be appropriate which, under 
 pretence of prohibiting a State from doing certain things, 
 should tend to destroy it, or any of its essential attributes. To 
 every State, as understood in the American sense, there must 
 be, with reference to the subjects over which it has jurisdic- 
 tion, absolute freedom from all external interference in the ex- 
 ercise of its legislative, judicial, and executive authority. Con- 
 gress could not undertake to prescribe the duties of a State 
 legislature and the rules it should follow, and the motives by 
 which it should be governed, and authorize criminal prosecu- 
 tions against the members if its directions were disregarded ; 
 for the independence of the legislature is essential to the inde- 
 pendence and autonomy of the' State. Congress could not lay 
 down rules for the guidance of the State judiciary, and pre- 
 scribe to it the law and the motives by which it should be 
 controlled, and if these were disregarded, direct criminal pro- 
 ceedings against its members ; because a judiciary independ- 
 ent of external authority is essential to the independence of 
 
RELATIONS BETWEEN THE FEDERAL GOVERN- 17 
 MENT AND THE STATE GOVERNMENTS. 
 
 the State, and also, 1 may add, to a just and efficient adminis- 
 tration of justice in her courts. Congress could not dictate to 
 the executive of a State the bills he might approve, the par- 
 dons and reprieves he might grant, or the manner in which he 
 might discharge the functions of his office, and assume to pun- 
 ish him if its dictates were disregarded, because his independ- 
 ence, within the reserved powers, is essential to that of the 
 State. Indeed, the independence of a State consists in the in- 
 dependence of its legislative, executive, and judicial officers, 
 through whom alone it acts. If this were not so, a State 
 would cease to be a self-existing and an indestructible member 
 of the Union, and would be brought to the level of a depend- 
 ent municipal corporation, existing only with such powers as 
 Congress might prescribe. 
 
 I cannot think I am mistaken in saying that a change so 
 radical in the relation between the Federal and State author- 
 ities, as would justify legislation interfering with the inde- 
 pendent action of the different departments of the State gov- 
 ernments, in all matters over which the States retain jurisdic- 
 tion, was never contemplated by.the recent amendments. The 
 people in adopting them did not suppose they were altering 
 the fundamental theory of their dual system of governments. 
 The discussions attending their consideration in Congress, and 
 before the people, when presented to the legislatures of the 
 States for adoption, can be successfully appealed to in support 
 of this assertion. The Union was preserved at a fearful cost 
 of life and property. The institution of slavery in a portion 
 of the country was the cause of constant irritation and crim- 
 ination between the people of the States where it existed and 
 those of the free States, which finally led to a rupture between 
 them and to the civil war. As the war progressed its sacri- 
 fices and burdens filled the people of the loyal States with a 
 determination, that not only should the Union be preserved, 
 but that the institution, which, in their judgment, had threat- 
 ened its dissolution, should be abolished. The emancipation 
 proclamation of President Lincoln expressed this determina- 
 tion, though placed on the ground of military necessity. The 
 thirteenth amendment carried it into the organic law. That 
 
18 EX PARTE VIRGINIA. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 amendment prohibits slavery and involuntary servitude, ex- 
 cept for crime, within the United States, or any place subject 
 to their jurisdiction. Its language is not restricted to the 
 slavery of any particular class. It applies to all men ; and 
 embraces in its comprehensive language not merely that form 
 of slavery which consists in the denial of personal rights to 
 the slave, and subjects him to the condition of a chattel, but 
 also serfage, vassalage, peonage, villeinage, and every other 
 form of compulsory service for the benefit, pleasure, or caprice 
 of others. It was intended to render every one within the 
 domain of the republic a freeman, with the right to follow the 
 ordinary pursuits of life without other restraints than such as 
 are applied to all others, and to enjoy equally with them the 
 earnings of his labor. But it confers no political rights ; it 
 leaves the States free, as before its adoption, to determine who 
 shall hold their offices and participate in the administration of 
 their laws. A similar prohibition of slavery and involuntary 
 servitude was in the Constitutions of several States previous to 
 its adoption by the United States ; and it was never held to 
 confer any political rights. 
 
 On the eighteenth of December, 1865, this amendment was 
 ratified, that is the official proclamation of its ratification was 
 then made ; and in April of the following year the civil rights 
 act was passed. Its first section declares that all persons born 
 in the United States, and not subject to any foreign power, 
 excluding Indians not taxed, are " citizens of the United 
 States," and that ''such citizens, of every race and color, 
 without regard to any previous condition of slavery or in- 
 voluntary servitude, except as a punishment for crime, of 
 which the party shall have been duly convicted, shall have 
 the same right in every State and Territory in the United 
 States, to make and enforce contracts, to sue, be parties and 
 give evidence, to inherit, purchase, lease, sell, hold and 
 convey real and personal property, and to full and equal 
 benefit of all laws and proceedings for the security of 
 person and property, as is enjoyed by white persons." This 
 legislation was intended to secure to all persons in the United 
 States practical freedom. But its validity was questioned in 
 
RELATIONS BETWEEN THE FEDERAL GOVERN- 19 
 MENT AND THE STATE GOVERNMENTS. 
 
 many quarters entitled to consideration, and some of its pro- 
 visions not long afterwards were declared by State courts to be 
 beyond the constitutional authority of Congress. Bowlin v. 
 Commonwealth, 2 Bush, 5. There were also complaints made 
 that notwithstanding the amendment abolishing slavery and 
 involuntary servitude, except for crime, the freedmen were, by 
 legislation in some of the Southern States, subjected to such 
 burdensome disabilities in the acquisition and enjoyment of 
 property, and the pursuit of happiness, as to render their free- 
 dom of little value. Slaughter House Cases, 16 Wall. 70. 
 There were, besides, complaints of the existence, in those 
 sections, of a feeling of dislike toward citizens of the North 
 seeking residence there, and toward such of their own citizens 
 as had adhered to the national government during the war, 
 which could not fail to find expression in hostile and discrim- 
 inating legislation. It is immaterial whether these complaints 
 were justified or not ; they were believed by many persons to 
 be well-founded. To remove the cause of them ; to obviate 
 objections to the validity of legislation similar to that con- 
 tained in the first section of the civil rights act ; to prevent 
 the possibility of hostile and discriminating legislation in 
 future by a State against any citizen of the United States, and 
 the enforcement of any such legislation already had ; and to 
 secure to all persons within the jurisdiction of the States the 
 equal protection of the laws, the first section of the fourteenth 
 amendment was adopted. Its first clause declared who are 
 citizens of the United States and of the States. It thus re- 
 moved from discussion the question, which had previously 
 been debated, and though decided, not settled, by the judg- 
 ment in the Dred Scott case, whether descendants of persons 
 brought to this country and sold as slaves were citizens within 
 the meaning of the Constitution. It also recognized, if it did 
 not create, a national citizenship, as contradistinguished from 
 that of the States. But the privilege or the duty, whichever it 
 may be called, of acting as a juror in the courts of the country, 
 is not an incident of citizenship. Women are citizens; so are 
 the aged above sixty, and children in their minority ; yet they 
 are not allowed in Virginia to act as jurors. Though some of 
 
20 EX PAKTE VIRGINIA. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 these are in all respects qualified for such service, no one will 
 pretend that their exclusion by law from the jury list impairs 
 their rights as citizens. 
 
 The second clause of the first section of the amendment 
 declares that " no State shall make or enforce any law which 
 shall abridge the privileges or immunities of citizens of the 
 United States." In the Slaughter- House Cases, it was held by 
 a majority of the court that this clause had reference only to 
 privileges and immunities of citizens of the United States, as 
 distinguished from those of citizens of the States, and, there- 
 fore, did not apply to those fundamental civil rights, which 
 belong to citizens of all free governments, such as the right to 
 acquire and enjoy property and pursue happiness, subject only 
 to such just restraints as might be prescribed for the general 
 good. If this construction be correct there can be no pretence 
 that the privilege or duty of acting as a juror in a State court 
 is within the inhibition of the clause. Nor could it be within 
 that inhibition if a broader construction were given to the 
 clause, and it should be held, as contended by the minority of 
 the court in the /Slaughter- House Cases, that it prohibits the 
 denial or abridgment by any State of those fundamental 
 privileges and immunities which of right belong to citizens of 
 all free governments, and with which the Declaration of Inde- 
 pendence proclaimed that all men were endowed by their 
 Creator, and to secure which governments were instituted 
 among men. These fundamental rights were secured, previous 
 to the amendment, to citizens of each State in the other 
 States, by the second section of the fourth article of the Con- 
 stitution, which declares that " the citizens of each State shall 
 be entitled to all privileges and immunities of citizens in the 
 several States." Among those privileges and immunities, it 
 was never contended that jury duty or jury service was in- 
 cluded. 
 
 The third clause in the first section of the amendment de- 
 clares that no State " shall deprive any person of life, liberty, 
 or property without due process of law." It will not be con- 
 tended that this clause confers upon the citizen any right to 
 serve as a juror in the State courts. It exists in the Constitu- 
 
RELATIONS BETWEEN THE FEDERAL GOVERN- 21 
 
 MENT AND THE STATE GOVERNMENTS. 
 
 -.0 . 
 
 tions of nearly all the States, and is only an additional security 
 against arbitrary deprivation of life and liberty, and arbitrary 
 spoliation of property. It means that neither can be taken, or 
 the enjoyment thereof impaired, except in the course of the 
 regular administration of the law in the established tribunals. 
 The existence of this clause in the amendment is to me a per- 
 suasive argument that those who framed it, and the legislatures 
 of the States which adopted it, never contemplated that the 
 prohibition was to be enforced in any other way than through 
 the judicial tribunals, as previous prohibitions upon the States 
 had always been enforced. If Congress could, as an appro- 
 priate means to enforce the prohibition, prescribe criminal 
 prosecutions for its infraction against legislators, judges, and 
 other officers of the States, it would be authorized to frame a 
 vast portion of their laws, for there are few subjects upon 
 which legislation can be had besides life, liberty, and property. 
 In determining what constitutes a deprivation of property, it 
 might prescribe the conditions upon which property shall be 
 acquired and held, and declare as to what subjects property 
 rights shall exist. In determining what constitutes deprivation 
 of liberty, it might prescribe in what way and by what means 
 the liberty of the citizen shall be deemed protected. In pre- 
 scribing punishment for deprivation of life, it might prescribe 
 a code of criminal procedure. All this and much more might 
 be done if it once be admitted, as the court asserts in this 
 case, that Congress can authorize a criminal prosecution for 
 the infraction of the prohibitions. It cannot prescribe punish- 
 ment without defining crime, and therefore must give ex- 
 pression to its own views as to what constitutes protection to 
 life, liberty, and property. 
 
 The fourth clause in the first section of the amendment de- 
 clares that no State shall "deny to any person within its 
 jurisdiction the equal protection of the laws." Upon this 
 clause the counsel of the district judge chiefly rely to sustain 
 the validity of the legislation in question. But the universality 
 of the protection secured necessarily renders their position un- 
 tenable. All persons within the jurisdiction of the State, 
 whether permanent residents or temporary sojourners, whether 
 
22 EX PARTE VIRGINIA. 
 
 Dissen^ng Opinion of Mr. Justice Field. 
 
 old or young, male or female, are to be equally protected. 
 Yet no one will contend that equal protection to women, to 
 children, to the aged, to aliens, can only be secured by allow- 
 ing persons of the class to which they belong to act as jurors 
 in cases affecting their interests. The equality of protection 
 intended does not require that all persons shall be permitted 
 to participate in the government of the State and the adminis- 
 tration of its laws, to hold its offices, or be clothed with any 
 public trusts. As already said, the universality of the protec- 
 tion assured repels any such conclusion. 
 
 The equality of the protection secured extends ouly to civil 
 rights as distinguished from those which are political, or arise 
 from the form of the government and its mode of administra- 
 tion. And yet the reach and influence of the amendment are 
 immense. It opens the courts of the country to every one, on 
 the same terms, for the security of his person and property, 
 the prevention and redress of wrongs, and the enforcement of 
 contracts ; it assures to every one the same rules of evidence 
 and modes of procedure ; it allows no impediments to the ac- 
 quisition of property and the pursuit of happiness, to which 
 all are not subjected ; it suffers no other or greater burdens 
 or charges to be laid upon one than such as are equally borne 
 by others ; and in the administration of criminal justice it per- 
 mits no different or greater punishment to be imposed upon 
 one than such as is prescribed to all for like offences. It se- 
 cures to all persons their civil rights upon the same terms ; 
 but it leaves political rights, or such as arise from the form of 
 government and its administration, as they stood previous to 
 its adoption. It has no more reference to them than it has to 
 social rights and duties, which do not rest upon any positive 
 law, though they are more potential in controlling the inter- 
 course of individuals. In the consideration of questions 
 growing out of these amendments much confusion has arisen 
 from a failure to distinguish between the civil and the politi- 
 cal rights of citizens. Civil rights are absolute and personal. 
 Political rights, on the other hand, are conditioned and depend- 
 ent upon the discretion of the elective or appointing power, 
 whether that be the people acting through the ballot, or one 
 
RELATIONS BETWEEN THE FEDERAL GOVERN- 23 
 MENT AND THE STATE GOVERNMENTS. 
 
 of the departments of their government. The civil rights of 
 the individual are never to be withheld, and may be always 
 judicially enforced. The political rights which he may enjoy, 
 such as holding office and discharging a public trust, are quali- 
 fied because their possession depends on his fitness, to be 
 adjudged by those whom society has clothed with the elective 
 authority. The thirteenth and fourteenth amendments were 
 designed to secure the civil rights of all persons, of every race, 
 color, and condition, but they left to the States to determine to 
 whom the possession of political power should be entrusted. This 
 is manifest from the fact that when it was desired to confer 
 political power upon the newly-made citizens of the States, as 
 was done by inhibiting the denial to them of the suffrage on 
 account of race, color, or previous condition of servitude, a 
 new amendment was required. 
 
 The doctrine of the district judge, for which the counsel 
 contend, would lead to some singular results. If, when a 
 colored person is accused of a criminal offence, the presence 
 of persons of his race on the jury by which he is to be tried is 
 essential to secure to him the equal protection of the laws, it 
 would seem that the presence of such persons on the bench 
 would be equally essential, if the court should consist of more 
 than one judge, as in many cases it may ; and if it should con- 
 sist of a single judge, that such protection would be impossi- 
 ble. A similar objection might be raised to the composition 
 of any appellate court to which the case, after verdict, might 
 be carried. 
 
 The position that in cases where the rights of colored per- 
 sons are concerned, justice will not be done to them unless 
 they have a mixed jury, is founded upon the notion that in 
 such cases white persons will not be fair and honest jurors. 
 If this position be correct there ought not to be any white 
 persons on the jury where the interests of colored persons only 
 are involved. That jury would not be an honest or fair one, 
 of which any of its members should be governed in his judg- 
 ment by other considerations than the law and the evidence ; 
 and that decision would hardly be considered just which 
 should be reached by a sort of compromise, in which the prej- 
 
24 EX PARTE VIRGINIA. 
 
 Dissenting Opinion of Mr. Justice Field. 
 
 udices of one race were set off against the prejudices of the 
 other. To be consistent, those who hold this notion should 
 contend that in cases affecting members of the colored race 
 only, the juries should be composed entirely of colored persons, 
 and that the presiding judge should be of the same race. To 
 this result the doctrine asserted by the District Court logically 
 leads. The jury de medietate ling-nee, anciently allowed in 
 England for the trial of an alien, was expressly authorized by 
 statute, probably as much because of the difference of lan- 
 guage and customs between him and Englishmen, and the 
 greater probability of his defence being more fully understood, 
 as because it would be heard in a more friendly spirit by 
 jurors of his own country and language. 
 
 If these views as to the purport and meaning of the thir- 
 teenth and fourteenth amendments to the Constitution be cor- 
 rect, there is no warrant for the act of Congress under which 
 the indictment in this case was found, and the arrest and im- 
 prisonment of the petitioner were unlawful, and his release 
 should be ordered. 
 
 The case is one which should not be delayed for the slow 
 process of a trial in the court below, and a subsequent appeal, 
 in case of conviction, to this court to be heard years hence. 
 The Commonwealth of Virginia has represented to us that the 
 services of her judicial officer are needed in her courts for the 
 administration of justice between her citizens, and she asks 
 that the highest tribunal of the Union will release him from 
 his unlawful arrest, in order that he may perform the duties of 
 his office. Those who regard the independence of the States 
 in all their reserved powers and this includes the independ- 
 ence of their legislative, judicial, and executive departments 
 as essential to the successful maintenance of our form of gov- 
 ernment, cannot fail to view with the gravest apprehension for 
 the future, the indictment, in 'a court of the United States, of 
 a judicial officer of a State for the manner in which he has 
 discharged his duties under her laws, and of which she makes 
 no complaint. The proceeding is a gross offence to the State ; 
 it is an attack upon her sovereignty in matters over which she 
 has never surrendered her jurisdiction. The doctrine which 
 
RELATIONS BETWEEN THE FEDERAL GOVERN- 25 
 MENT AND THE STATE GOVERNMENTS. 
 
 sustains it, carried to its logical results, would degrade and 
 sink her to the level of a mere local municipal corporation ; 
 for if Congress can render an officer of a State criminally lia- 
 ble for the manner in which he discharges his duties under 
 her laws, it can prescribe the nature and extent of the penalty 
 to which he shall be subjected on conviction ; it may imprison 
 him for life or punish him by removal from office. And if it 
 can make the exclusion of persons from jury service on account 
 of race or color a criminal offence, it can make their exclusion 
 from office on that account also criminal ; and, adopting the 
 doctrine of the district judge in this case, the failure to appoint 
 them to office will be presumptive evidence of their exclusion 
 on that ground. To such a result are we logically led. The 
 legislation of Congress is founded, and is sustained by this 
 court, as it seems to me, upon a theory as to what constitutes 
 the equal protection of the laws, which is purely speculative, 
 not warranted by any experience of the country, and not 
 in accordance with the understanding of the people as to the 
 meaning of those terms since the organization of the govern- 
 ment. 
 
 I am authorized to say that MR. JUSTICE CLIFFORD concurs 
 with me in this opinion. 
 
 BHSIT 
 oa> 
 
The Validity of the Election Laws of Congress considered, 
 
 DISSENTING OPINION 
 
 OF 
 
 MR. JUSTICE FIELD, 
 
 OF U. S. SUPREME COURT, 
 IN 
 
 EX PARTE CLARKE AND OTHERS, 
 
 Delivered at October Term, 1879.* 
 
 This case came before the Supreme Court of the United 
 States at its October term, 1879, on a returned writ of 
 habeas corpus issued by order of one of its Justices. 
 
 OPINION : 
 
 I cannot assent to the decision of the majority of the 
 court in this and the preceding case, and I will state the 
 reasons of my dissent. One of the six petitioners is a 
 citizen of Ohio, and the other five are citizens of Mary- 
 land. They all seek a discharge from imprisonment 
 imposed by judgments of Federal courts for alleged offi- 
 cial misconduct as judges of election in their respective 
 States. 
 
 At an election held in the first Congressional district of 
 Ohio, in October, 1878, at which a representative in Con- 
 gress was voted for, the petitioner from that State was 
 appointed under its laws, and acted as a judge of election 
 at a precinct in one of the wards of the city of Cincinnati. 
 At an election held in the fourth and fifth Congressional 
 districts of Maryland, in November, 1878, at which a 
 representative in Congress was voted for, the petitioners 
 
 * Reported in 100 U. S. Reports, 404. 
 
from that State were appointed under its laws, and acted 
 as judges of election at different precincts in the wards of 
 the city of Baltimore. For alleged misconduct as such 
 officers of election the petitioners were indicted in the 
 Circuit Courts of the United States for their respective 
 districts, tried, convicted, and sentenced to imprisonment 
 for twelve months, and, in some of the cases, also to pay 
 a fine. 
 
 In what I have to say I shall confine myself princi- 
 pally to the case of the petitioner from Ohio; the other 
 cases will be incidentally considered. In that case, the 
 petitioner is charged with having violated a law of the 
 State. In the cases from Maryland, the petitioners are 
 charged with having prevented Federal officers from in- 
 terfering with them and supervising their action in the 
 execution of the laws of the State. The principle which 
 governs one will dispose of all of them ; for if Congress 
 cannot punish an officer of a State for the manner in 
 which he discharges his duties under her laws, it cannot 
 subject him to the supervison and control of others in the 
 performance of such duties, and punish him for resisting 
 their interference. In the cases from Maryland, it ap- 
 pears that the laws of the State under which the petition- 
 ers were appointed judges of election, and the registration 
 of voters for the election of 1878 was made, were not in 
 existence when the act of Congress was passed providing 
 for the appointment of supervisors to examine the regis- 
 tration and scrutinize the lists, and of special deputy 
 marshals to aid and protect them. The act of Congress 
 was passed in 1871, and republished in the Revised 
 Statutes, which are declaratory of the law in force, De- 
 cember 1, 1873. The law of Maryland, under which the 
 registration of voters was had, was enacted in 1874, and 
 the law under which the judges of election were ap- 
 pointed was enacted in 1876, and these judges were re- 
 quired to possess different qualifications from those re- 
 quired of judges of election in 1871 and 1873. 
 
3 
 
 In all the cases the petitioners are imprisoned under 
 the judgments against them; and each one insisting that 
 the Circuit Court, in his case, acted without jurisdiction, 
 and that his imprisonment is, therefore, unlawful and 
 subversive of his rights as a citizen, has petitioned this 
 court for a writ of habeas corpus, annexing to his petition 
 a transcript of the record of the proceedings against him, 
 and prays that he may be released from restraint. 
 
 It has been settled by this court that the writ of habeas 
 corpus is one of the modes by which its appellate jurisdic- 
 tion will be exercised in cases where it is alleged that by 
 the action of an inferior tribunal a citizen of the United 
 States has been unlawfully deprived of his personal lib- 
 erty ; and if necessary, that a certiorari will be issued with 
 the writ to bring up for examination the record of the pro- 
 ceedings of the inferior tribunal. In such cases, we look 
 into that record to see, not whether the court erred in its 
 rulings, but whether it had jurisdiction to impose the im- 
 prisonment complained of. If it had jurisdiction, our 
 examination ends, and the case must await determination 
 in the ordinary course of procedure on writ of error or 
 appeal, should the case be one which can thus be brought 
 under our review. But if the court below was without 
 jurisdiction of the matter upon which the judgment of 
 imprisonment was rendered, or if it exceeded its jurisdic- 
 tion in the extent of the imprisonment imposed, this 
 court will interfere and discharge the petitioner. If, 
 therefore, the act of Congress, in seeking to impose a 
 punishment upon a State officer in one of these cases for 
 disobeying a law of the State, and in the other cases for 
 resisting the interference of Federal officials with the dis- 
 charge of his duties under such law, is unconstitutional 
 and void, the judgments of the Circuit Courts are unlaw- 
 ful and the petitioners should be released. 
 
 I do not regard the presentation by the petitioner from 
 Ohio of his petition to one of the Justices of the court in 
 the first instance as a fact at all affecting his case. His 
 
petition is addressed to this court, and though the Justice, 
 who allowed the writ, directed that it should be return- 
 able before himself, he afterwards ordered the hearing 
 upon it to be had before this court. The petition may, 
 therefore, with propriety be treated as if presented to us 
 in the first instance. Irregularities in that regard should 
 not be allowed to defeat its purpose, the writ being de- 
 signed for the security of the personal liberty of the 
 citizen. 
 
 The act of Congress upon which the indictment of the 
 petitioner from Ohio was founded is contained in section 
 5515 of the Revised Statutes, which declares that " every 
 officer of an election, at which any representative or dele- 
 gate in Congress is voted for, whether such officer of elec- 
 tion be appointed or created by or under any law or 
 authority of the United States, or by or under any State, 
 territorial, district, or municipal law or authority, who 
 neglects or refuses to perform any duty in regard to such 
 election required of him by any law of the United States, 
 or of any State or Territory thereof; or who violates any 
 duty so imposed ; or who knowingly does any acts thereby 
 unauthorized with intent to affect any such election or 
 the result thereof, . . . shall be punished as pre- 
 scribed " in a previous section, that is, by a fine not ex- 
 ceeding one thousand dollars, or imprisonment not more 
 than one year, or by both. 
 
 The indictment contains three counts, the third of 
 which was abandoned. The first count charges unlawful 
 neglect on the part of the accused to perform a duty re- 
 quired of him by the laws of the State, in not carrying to 
 the clerk of the Court of Common Pleas one of the poll- 
 books of the election, covered and sealed by the judges of 
 election^ with which he was entrusted by them for that 
 purpose. The second count charges the violation of a 
 duty required of him by the laws of the State in permit- 
 ting one of the poll-books, covered and sealed, entrusted 
 to him. by the judges of election to carry to the clerk of 
 
the Court of Common Pleas, to be broken open before he 
 conveyed it to that officer. 
 
 The law of Ohio, to which reference is had in the in- 
 dictment, provides that after the votes at an election are 
 canvassed "the judges, before they disperse, shall put 
 under cover one of the poll-books, seal the same, and direct 
 it to the clerk of the Court of Common Pleas of the county 
 wherein the return is to be made ; and the poll-book thus 
 sealed and directed, shall be conveyed by one of the judges 
 (to be determined by lot if they cannot agree otherwise) 
 to the clerk of the Court of Common Pleas of the county, 
 at his office, within two days from the day of the election." 
 
 The provisions of the act of Congress relating to the 
 appointment of supervisors .of election, the powers with 
 which they are entrusted, and the aid to be rendered them 
 by marshals and special deputy marshals, for resisting and 
 interfering with whom the petitioners from Maryland 
 have been condemned and are imprisoned, are stated in 
 the opinion of the court. It is sufficient to observe that 
 they authorize the supervisors to supervise the action of 
 the State officers from the registration of voters down to 
 the close of the polls on the day of election ; require the 
 marshals to aid and protect them, and provide for the 
 appointment of special deputy marshals in towns and cities 
 of over twenty thousand inhabitants; and they invest 
 those Federal officers with a power to arrest and take into 
 custody persons without process more extended than has 
 ever before in our country in time of peace been entrusted 
 to any one. 
 
 In what I have to say I shall endeavor to show : 1st, 
 that it is not competent for Congress to punish a State 
 officer for the manner in which he discharges duties im- 
 posed upon him by the laws of the State, or to subject him 
 in the performance of such duties to the supervision and 
 control of others, and punish him for resisting their in- 
 terference; and, 2d, that it is not competent for Congress 
 to make the exercise of its punitive power dependent upon 
 the legislation of the States, 
 
6 
 
 There is no doubt that Congress may adopt a law of a 
 State, but in that case the adopted law must be enforced 
 as a law of the United States. Here there is no pretence 
 of such adoption. In the case from Ohio it is for the 
 violation of a State law, not a law of the United States, 
 that the indictment was found. The judicial power of 
 the United States does not extend to a case of that kind. 
 The Constitution defines and limits that power. It de- 
 clares that it shall extend to cases in law and equity aris- 
 ing under the Constitution, the laws of the United States, 
 and treaties made under their authority; to cases affect- 
 ing ambassadors, other public ministers and consuls ; to 
 cases of admiralty and maritime jurisdiction, and to vari- 
 ous controversies to which the United States or a State is 
 a party, or between citizens of different States, or citizens 
 of the same State claiming lands under grants of different 
 States, or between citizens of a State and any foreign State, 
 citizens or subjects. The term controversies as here used 
 refers to such only as are of a civil as distinguished from 
 those of a criminal nature. The judicial power thus de- 
 nned may be applied to new cases as they arise under the 
 Constitution and laws of the United States, but it cannot 
 be enlarged by Congress so as to embrace cases not enum- 
 erated in the Constitution. It has been so held by this 
 court from the earliest period. It was so adjudged in 1803 
 in Marbury v. Madison, and the adjudication has been 
 affirmed in numerous instances since. This limitation 
 upon Congress would seem to be conclusive of the case 
 from Ohio. To authorize a criminal prosecution in the 
 Federal courts for an offence against a law of a State, is 
 to extend the judicial power of the United States to a case 
 not arising under the Constitution or laws of the United 
 States. 
 
 But there is another view of this subject which is equally 
 conclusive against the jurisdiction of the Federal court. 
 The act of Congress asserts a power inconsistent with, and 
 destructive of, the independence of the States. The right 
 
to control their own officers, to prescribe the duties they 
 shall perform, without the supervision or interference of 
 any other authority, and the penalties to which they shall 
 be subjected for a violation of duty is essential to that in- 
 dependence. If the Federal government can punish a 
 violation of the laws of the State, it may punish obedience 
 to them, and graduate the punishment according to its 
 own judgment of their propriety and wisdom. It may 
 thus exercise a control over the legislation of the States 
 subversive of all their reserved rights. However large 
 the powers conferred upon the government formed by the 
 Constitution, and however numerous its restraints, the 
 right to enforce their own laws by such sanctions as they 
 may deem appropriate is left, where it was originally, 
 with the States. It is a right which has never been sur- 
 rendered. Indeed, a State could not be considered as in- 
 dependent in any matter, with respect to which its officers, 
 in the discharge of their duties, could be subjected to 
 punishment by any external authority; nor in which its 
 officers, in the execution of its laws, could be subject to 
 the supervision and interference of others. 
 
 The invalidity of coercive measures by the United States, 
 to compel an officer of a State to perform a duty imposed 
 upon him by a law of Congress, is asserted in explicit 
 terms in the case of The Commonwealth of Kentucky v. Den- 
 nison, (24 How. 66.) The Constitution declares that " a 
 person charged in any State with treason, felony, or other 
 crime, who shall flee from justice, and be found in another 
 State, shall, on demand of the executive authority of the 
 State from which he fled, be delivered up to be removed 
 to the State having jurisdiction of the crime." And the 
 act of Congress of 1793, to give effect to this clause, made 
 it the duty of the executive authority of the State, upon 
 the demand mentioned, and the production of a properly 
 authenticated copy of the indictment or affidavit charging 
 the person demanded with the commission of treason, fel- 
 ony, or other crime, to surrender the fugitive. The gover- 
 
8 
 
 nor of Ohio having refused upon a proper demand to sur- 
 render a fugitive from justice from Kentucky, the governor 
 of the latter State applied to this court for a mandamus to 
 compel the performance of that duty. But the court, after 
 observing that, though the words, " it shall be the duty," in 
 ordinary legislation implied the assertion of the power to 
 command and to cause obedience, said, that looking to 
 the subject-matter of the law and "the relations which 
 the United States and the several States bear to each 
 other," it was of opinion that the words were not used as 
 mandatory and compulsory, but as declaratory of the 
 moral duty created, when Congress had provided the 
 mode of carrying the provision into execution. "The 
 act does not provide," the court added, "any means to 
 compel the execution of this duty, nor inflict any punish- 
 ment for neglect or refusal on the part of the executive 
 of the State; nor is there any clause or provision in the 
 Constitution which arms the government of the United 
 States with this power. Indeed, such a power would 
 place every State under the control and dominion of the 
 general government, even in the administration of its 
 internal concerns and reserved rights. And we think it 
 clear that the Federal government, under the Constitu- 
 tion, has no power to impose on a State officer, as such, 
 any duty whatever, and compel him to perform it; for if 
 it possessed this power it might overload the officer with 
 duties which would fill up all his time, and disable him 
 from performing his obligations to the State, and might 
 impose on him duties of a character incompatible with 
 the rank and dignity to which he was elevated by the 
 State. It is true that Congress may authorize a par- 
 ticular State officer to perform a particular duty; but, if 
 he decline to do so, it does not follow that he may be 
 coerced or punished for his refusal. And we are very far 
 from supposing that in using this word 'duty/ the 
 statesmen who framed and passed the law, or the Presi- 
 dent who approved and signed it, intended to exercise a 
 
9 
 
 coercive power over State officers not warranted by the 
 Constitution." And again: "If the governor of Ohio 
 refuses to discharge this duty, there is no power delegated 
 to the general government, either through the judicial 
 department or any other department, to use any coercive 
 means to compel him." 
 
 If it be incompetent for the Federal government to 
 enforce, by coercive measures, the performance of a plain 
 duty imposed by a law of Congress upon the executive 
 officer of a State, it would seem to be equally incompetent 
 for it to enforce, by similar measures, the performance of 
 a duty imposed upon him by a law of a State. If Con- 
 gress cannot impose upon a State officer, as such, the per- 
 formance of any duty, it would seem logically to follow 
 that it cannot subject him to punishment for the neglect 
 of such duties as the State may impose. It cannot punish 
 for the non-performance of a duty which it cannot pre- 
 scribe. It is a contradiction in terms to say that it can 
 inflict punishment for disobedience to an act, the per- 
 formance of which it has no constitutional power to 
 command. 
 
 I am not aware that the doctrine of this case, which is 
 so essential to the harmonious working of the State and 
 Federal governments, has ever been qualified or departed 
 from by this court until the recent decisions in the Vir- 
 ginia cases, of which I shall presently speak. It is true 
 that, at an early period in the history of the government, 
 laws were passed by Congress authorizing State courts to 
 entertain jurisdiction of proceedings by the United 
 States, to enforce penalties and forfeitures under the 
 revenue laws, and to hear allegations, and take proofs if 
 applications were made for their remission. To these 
 laws reference is made in the Kentucky case, and the 
 court observes, that the powers, which they conferred, 
 were for some years exercised by the State tribunals with- 
 out objection, until in some of the States their exercise 
 was declined because it interfered with and retarded the 
 
10 
 
 performance of duties which properly belonged to them 
 as State courts; and in other States because doubts arose 
 as to the power of the State courts to inflict penalties and 
 forfeitures for offences against the general government, 
 unless specially authorized to do so by the States; and 
 that the co-operation of the States in those cases was a 
 matter of comity which the several sovereignties extended 
 to one another for their mutual benefit, and was not re- 
 garded by either party as an obligation imposed by the 
 Constitution. 
 
 It is to be observed that by the Constitution the de- 
 mand for the surrender of a fugitive is to be made by the 
 executive authority of the State from which he has fled, 
 but it is not declared upon whom the demand shall be 
 made. That was left to be determined by Congress, and 
 it provided that the demand should be made upon the 
 executive of the State where the fugitive was found. It 
 might have employed its own agents, as in the enforce- 
 ment of the fugitive slave law, and compelled them to 
 act. But in both cases, if it employed the officers of the 
 State it could not restrain nor coerce them. 
 
 Whenever, therefore, the Federal government, instead 
 of acting through its own officers, seeks to accomplish 
 its purposes through the agency of officers of the States, 
 it must accept the agency with the conditions upon 
 which the officers are permitted to act. For example, the 
 Constitution invests Congress with the "power to estab- 
 lish a uniform rule of naturalization ; " and this power, 
 from its nature, is exclusive. A concurrent power in the 
 States would prevent the uniformity of regulations re- 
 quired on the subject. (Chirac v. Chirac, 2 Wfreaton, 
 259; The Federalist, No. 42.) Yet Congress, in legislat- 
 ing under this power, has authorized courts of record of 
 the States to receive declarations under oath by aliens of 
 their intention to become citizens, and to admit them to 
 citizenship after a limited period of residence, upon satis- 
 factory proof as to character and attachment to the Con- 
 
11 
 
 stitution. But when Congress prescribed the conditions 
 and proof upon which aliens might, by the action of the 
 State courts, become citizens, its power ended. It could 
 not coerce the State courts to hold sessions for such appli- 
 cations, nor fix the time when they should hear the ap- 
 plicants, nor the manner in which they should administer 
 the required oaths, nor regulate in any way their pro- 
 cedure. It could not compel them to act by mandamus 
 from its own tribunals; nor subject their judges to crim- 
 inal prosecution for their non-action. It could accept 
 the agency of those courts only upon such terms as the 
 States should prescribe. The same thing is true in all 
 cases where the agency of State officers is used; and this 
 doctrine applies with special force to judges of elections 
 at which numerous State officers are chosen at the same 
 time with representatives to Congress. So far as the elec- 
 tion of State officers and the registration of voters for 
 their election are concerned, the Federal government has 
 confessedly no authority to interfere. And yet the super- 
 vision of and interference with the State regulations, 
 sanctioned by the act of Congress, when representatives 
 to Congress are voted for, amount practically to a super- 
 vision of and an interference with the election of State 
 officers, and constitute a plain encroachment upon the 
 rights of the States, which is well calculated to create 
 irritation towards the Federal government, and disturb 
 the harmony that all good and patriotic men should 
 desire to exist between it and the State governments. 
 
 It was the purpose of the framers of the Constitution 
 to create a government which could enforce its own laws, 
 through its own officers and tribunals, without reliance 
 upon those of the States, and thus avoid the principal de- 
 fect of the government of the confederation; and they 
 fully accomplished their purpose, for, as said by Chief 
 Justice Marshall in the McCollough case, " No trace is to be 
 found in the Constitution of an intention to create a de- 
 pendence of the Federal government on the governments 
 
12 
 
 of the States for the execution of the great powers assigned 
 to it. Its means are adequate to its ends, and on those 
 means alone was it expected to rely for the accomplish- 
 ment of its ends." When, therefore, the Federal govern- 
 ment desires to compel by coercive measures and punitive 
 sanctions the performance of any duties devolved upon 
 it by the Constitution, it must appoint its own officers and 
 agents, upon whom its power can be exerted. If it sees 
 fit to entrust the performance of such duties to officers of 
 a State, it must take their agency, as already stated, upon 
 the conditions which the State may impose. The co-ope- 
 rative scheme to which the majority of the court give 
 their sanction, by which the general government may 
 create one condition and the States another, and each 
 make up for and supplement the omissions or defects in 
 the legislation of the other, touching the same subject, 
 with its separate penalties for the same offence, and thus 
 produce a harmonious mosaic of statutory regulation, does 
 not appear to have struck the great jurist as a feature in 
 our system of government, or one that had been sanctioned 
 by its founders. 
 
 It is true that since the recent amendments of the Con- 
 stitution there has been legislation by Congress asserting, 
 as in the instance before us, a direct control over State 
 officers, which previously was never supposed to be com- 
 patible with the independent existence of the States in 
 their reserved powers. Much of that legislation has yet 
 to be brought to the test of judicial examination ; and 
 until the recent decisions in the Virginia cases, I could not 
 have believed that the former carefully considered and 
 repeated judgments of this court upon provisions of the 
 Constitution, and upon the-general character and purposes 
 of that instrument, would have been disregarded and 
 overruled. These decisions do indeed, in my judgment, 
 constitute a new departure. They give to the Federal 
 government the power to strip the States of the right to 
 vindicate their authority in their own courts against a 
 
13 
 
 violator of their laws, when the transgressor happens to 
 be an officer of the United States or alleges that he is de- 
 nied or cannot enforce some right under their laws. And 
 they assert for the Federal government a power to sub- 
 ject a judicial officer of a State to punishment for the 
 manner in which he discharges his duties under her laws. 
 The power to punish at all existing, the nature and ex- 
 tent of the punishment must depend upon the will of 
 Congress, and may be carried to a removal from office. 
 In my judgment, and I say it without intending any dis- 
 respect to my associates, no such advance has ever before 
 been made toward the conversion of our Federal system 
 into a consolidated and centralized government. I can- 
 not think that those who framed and advocated, and the 
 States which adopted the amendments, contemplated any 
 such fundamental change in our theory of government 
 as those decisions indicate. Prohibitions against legisla- 
 tion on particular subjects previously existed, as, for in- 
 stance, against passing a bill of attainder and an ex post 
 facto law, or a law impairing the obligation of contracts; 
 and in enforcing those prohibitions it was never supposed 
 that criminal prosecutions could be authorized against 
 members of the State legislature for passing the prohib- 
 ited laws, or against members of the State judiciary for 
 sustaining them, or against executive officers for enforc- 
 ing the judicial determinations. Enactments prescribing 
 such prosecutions would have given a fatal blow to the 
 independence and autonomy of the States. So of all, or' 
 nearly all, the prohibitions of the recent amendments the 
 same doctrine may be asserted. In few instances could 
 legislation by Congress be deemed appropriate for their 
 enforcement, which should provide for the annulment of 
 prohibited laws in any other way than through the in- 
 strumentality of an appeal to the judiciary, when they 
 impinged upon the rights of parties. If in any instance 
 there could be such legislation authorizing a criminal 
 prosecution for disregarding a prohibition, that legislation 
 
14 
 
 should define the offence and declare the punishment, 
 and not invade the independent action of the different 
 departments of the State governments within their ap- 
 propriate spheres. Legislation by Congress can neither 
 be necessary nor appropriate which would subject to crim- 
 inal prosecution State officers for the performance of duties 
 prescribed by State laws, not having for their object the 
 forcible subversion of the government. 
 
 The clause of the Constitution, upon which reliance 
 was placed by counsel, on the argument, for the legisla- 
 tion in question, does not, as it seems to me, give the 
 slightest support to it. That clause declares that "the 
 times, places, and manner of holding elections for Sena- 
 tors and Representatives shall be prescribed in each State 
 by the legislature thereof; but the Congress may, at any 
 time, by law, make or alter such regulations, except as to 
 the places of choosing Senators." The power of Congress 
 thus conferred is either to alter the regulations prescribed 
 by the*State or to make new ones; the alteration or new 
 creation embracing every particular of time, place, and 
 manner, except the place of choosing senators. But in 
 neither mode nor in any respect has Congress interfered 
 with the regulations prescribed by the legislature of Ohio, 
 or with those prescribed by the legislature of Maryland. 
 It has not altered them, nor made new ones. It has 
 simply provided for the appointment of officers to super- 
 vise the execution of the State laws, and of marshals to 
 aid and protect them in such supervision, and has added 
 a new penalty for disobeying those laws. This is not en- 
 forcing an altered or a new regulation. Whatever Con- 
 gress may properly do touching the regulations, one of 
 two things must follow : either the altered or the new reg- 
 ulation remains a State law, or it becomes a law of Con- 
 gress. If it remain a State law, it must, like other laws 
 of the State, be enforced, through its instrumentalities 
 and agencies, and with the penalties which it may see fit 
 to prescribe, and without the supervision or interference 
 
15 
 
 of Federal officials. If, on the other hand, it become a 
 law of Congress, it must be carried into execution by such 
 officers and with such sanctions as Congress may desig- 
 nate. But as Congress has not altered the regulations for 
 the election of representatives prescribed by the legisla- 
 ture of Ohio or of Maryland, either as to time, place, or 
 maner, nor adopted any regulations of its own, there is 
 nothing for the Federal government to enforce on the 
 subject. The general authority of Congress to pass all 
 laws necessary to carr}' into execution its granted powers, 
 supposes some attempt to exercise those powers. There 
 must, therefore, be some regulations made by Congress, 
 either by altering those prescribed by the State, or by 
 adopting entirely new ones, as to the times, places, and 
 manner of holding elections for representatives, before 
 any incidental powers can be invoked to compel obedi- 
 ence to them. In other words, the implied power cannot 
 be invoked until some exercise of the express power is 
 attempted, and then only to aid its execution. There is 
 no express power in Congress to enforce State laws by im- 
 posing penalties for disobedience to them; its punitive 
 power is only implied as a necessary or proper means of 
 enforcing its own laws; nor is there any power delegated 
 to it to supervise the execution by State officers of State 
 laws. 
 
 If this view be correct, there is no power in Congress, 
 independently of all other considerations, to authorize 
 the appointment of supervisors and other officers to super- 
 intend and interfere with the election of representatives 
 under the laws of Ohio and Maryland, or to annex a pen- 
 alty to the violation of those laws, and the action of the 
 Circuit Courts was without jurisdiction and void. The 
 act of Congress in question was passed, as it seems to me, 
 in disregard of the object of the constitutional provision. 
 That was designed simply to give to the general govern- 
 ment the means of its own preservation against a possible 
 dissolution from the hostility of the States to the election 
 
16 
 
 of representatives, or from their neglect to provide suitable 
 means for holding such elections. This is evident from 
 the language of its advocates, some of them members of 
 the convention, when the Constitution was presented to 
 the country for adoption. In commenting upon it in his 
 report of the debates, Mr. Madison said that it was meant 
 " to give the national legislature a power not only to alter 
 the provisions of the States but to make regulations, in 
 case the States should fail or refuse altogether" (Elliott's 
 Debates, 402.) And in the Virginia convention called to 
 consider the Constitution, he observed that " it was found 
 impossible to fix the time, place, and manner of the elec- 
 tion of representatives in the Constitution. It was found 
 necessary to leave the regulation of these, in the first 
 place, to the State governments, as being best acquainted 
 with the situation of the people, subject to the control of 
 the general government, in order to enable it to produce 
 uniformity, and prevent its own dissolution" ( 3 id. 367.) 
 And in the Federalist, Hamilton said, that the propriety 
 of the clause in question rested " upon the evidence of 
 the plain proposition that every government should con- 
 tain in itself the means of its own preservation." 
 
 Similar language is found in the debates in conventions 
 of the other States and in the writings of jurists and states- 
 men of the period. The conduct of Rhode Island was 
 referred to as illustrative of the evils to be avoided. That 
 State was not represented by delegates in Congress for 
 years, owing to the character and views of the prevailing 
 party; and Congress was often embarrassed by their ab- 
 sence. The same evil, it was urged, might result from a 
 similar cause, and Congress should; therefore, possess the 
 power to give the people an opportunity of electing rep- 
 resentatives if the States should neglect or refuse to make 
 the necessary regulations. 
 
 In the conventions of several States which ratified the 
 Constitution an amendment was proposed to limit in 
 express terms the action of Congress to cases of neglect 
 
17 
 
 or refusal of a State to make proper provisions for Con- 
 gressional elections, and was supported by a majority of 
 the thirteen States; but it was finally abandoned upon 
 the ground of the great improbability of Congressional 
 interference so long as the States performed their duty. 
 When Congress does interfere and provide regulations, 
 the duty of rendering them effectual, so far as they may 
 require affirmative action, will devolve solely upon the 
 Federal government. It will then be Federal power which 
 is to be exercised, and its enforcement, if promoted by 
 punitive sanctions, must be through Federal officers and 
 agents; for, as said by Mr. Justice Story in Prigg v. Penn- 
 sylvania, " The national government, in the absence of all 
 positive provisions to the contrary, is bound, through its 
 own proper department, legislative, judicial, or executive, 
 as the case may require, to carry into effect all the rights 
 and duties imposed upon it by the Constitution." If State 
 officers and State agents are employed, they must be taken, 
 as already said, with the conditions upon which the States 
 may permit them to act, and without responsibility to 
 the Federal authorities. The power vested in Congress 
 is to alter the regulations prescribed by the legislatures 
 of the States, or to make new ones, as to the times, places, 
 and manner of holding the elections. Those which relate 
 to the times and places will seldom require any affirm- 
 ative action beyond their designation. And regulations 
 as to the manner of holding them cannot extend beyond 
 the designation of the mode in which the will of the 
 voters shall be expressed and ascertained. The power 
 does not authorize Congress to determine who shall par- 
 ticipate in the election, or what shall be the qualifications 
 of voters. These are matters not pertaining to or involved 
 in the manner of holding the election, and their regulation 
 rests exclusively with the States. The only restriction 
 upon them with respect to these matters is found in the 
 provision that the electors of representatives in Congress 
 shall have the qualifications required 
 
18 
 
 most numerous branch of the State legislature, and the 
 provision relating to the suffrage of the colored race. 
 And whatever regulations Congress may prescribe as to 
 the manner of holding the election for representatives 
 must be so framed as to leave the election of State officers 
 free, otherwise they cannot be maintained. In one of the 
 numbers of the Federalist, Mr. Hamilton, in defending 
 the adoption of the clause in the Constitution, uses this 
 language: "Suppose an article had been introduced into 
 the Constitution empowering the United States to regulate 
 the elections for the particular States, would any man 
 have hesitated to condemn it, both as an unwarrantable 
 transposition of power, and as a premeditated engine for 
 the destruction of the State governments? ' The violation 
 of principle in this case would have required no com- 
 ment." By the act of Congress, sustained by the court, an 
 interference with State elections is authorized almost as 
 destructive of their control by the States as the direct 
 regulation which he thought no man would hesitate to 
 condemn. . 
 
 The views expressed derive further support from the 
 fact that the constitutional provision applies equally to 
 the election of senators, except as to the place of choos- 
 ing them, as it does to the election of representatives. 
 It will not be pretended that Congress could authorize 
 the appointment of supervisors to examine the roll of 
 members of State legislatures and pass upon the validity 
 of their titles, or to scrutinize the balloting for senators; 
 or could delegate to special deputy marshals the power 
 to arrest any member resisting and repelling the inter- 
 ference of the supervisors. But if Congress can author- 
 ize such officers to interfere with the judges of election 
 appointed under State laws in the discharge of their 
 duties when representatives are voted for, it can authorize 
 such officers to interfere with members of the State 
 legislatures when senators are voted for. The language 
 of the Constitution conferring power upon Congress to 
 
19 
 
 alter the regulations of the States, or to make new regu- 
 lations on the subject, is as applicable in the one case as 
 in the other. The objection to such legislation in both 
 cases is that State officers are not responsible to the Federal 
 government for the mariner in which they perform their 
 duties, nor subject to its control. Penal sanctions and co- 
 ercive measures by Federal law cannot be enforced against 
 them. Whenever, as in some instances is the case, a State 
 officer is required by the Constitution to perform a duty, 
 the manner of which may be prescribed by Congress, as 
 in the election of senators by members of State legis- 
 latures, those officers are responsible only to their States 
 for their official conduct. The Federal government can- 
 not touch them. There are remedies for their disregard 
 of its regulations, which can be applied without inter- 
 fering with their official character as State officers. Thus 
 if its regulations for the election of senators should not 
 be followed, the election had in disregard of them might be 
 invalidated; but no one, however extreme in his views, 
 would contend that in such a case the members of the 
 legislature could be subjected to criminal prosecution for 
 their action. With respect to the election of representa- 
 tives, so long as Congress does not adopt regulations of 
 its own and enforce them through Federal officers, but 
 permits the regulations of the States to remain, it must 
 depend for a compliance with them upon the fidelity of 
 the State officers and their responsibility to their own 
 government. All the provisions of the law, therefore, 
 authorizing supervisors and marshals to interfere with 
 those officers in the discharge of their duties, and pro- 
 viding for criminal prosecutions against them in the 
 Federal courts, are, in my judgment, clearly in conflict 
 with the Constitution. The law was adopted, no doubt, 
 with the object of preventing frauds at elections for 
 members of Congress, but it does not seem to have oc- 
 curred to its authors that the States are as much inter- 
 ested as the general government in guarding against 
 
20 
 
 frauds at those elections and in maintaining their purity, 
 and, if possible, more so, as their principal officers are 
 elected at the same time. If fraud be successfully perpe- 
 trated in any case, they will be the first and the greatest 
 sufferers. They are invested with the sole power to reg- 
 ulate domestic affairs of the highest moment to the pros- 
 perity and happiness of their people, affecting the acqui- 
 sition, enjoyment, transfer, and descent of property; the 
 marriage relation, and the education of children; and if 
 such momentous and vital concerns may be wisely and 
 safely entrusted to them, I do not think that any appre- 
 hension need be felt if the supervision of all elections 
 in their respective States should also be left to them. 
 
 Much has been said in argument of the power of the 
 general government to enforce its own laws, and in so 
 doing to preserve the peace, though it is not very ap- 
 parent what pertinency the observations have to the ques- 
 tions involved in the cases before us. No one will deny 
 that in the powers granted to it the general government 
 is supreme, and that, upon all subjects within their scope, 
 it can make its authority respected and obeyed throughout 
 the limits of the Republic; and that it can repress all 
 disorders and disturbances which interfere with the en- 
 forcement of its laws. But I am unable to perceive in 
 this fact, which all sensible men acknowledge, any cause 
 for the exercise of ungranted power. The greater its 
 lawful power, the greater the reason for not usurping 
 more. Unrest, disquiet, and disturbance will always arise 
 among a people, jealous of their rights, for the exercise 
 by the general government of powers which they had re- 
 served to themselves or to the States. 
 
 My second proposition is, that it is not competent for 
 Congress to make the exercise of its punitive power de- 
 pendent upon the legislation of the States. The act, upon 
 which the indictment of the petitioner from Ohio is 
 founded, makes the neglect or violation of a duty pre- 
 scribed by a law of the State in regard to an election at 
 
21 
 
 which a representative in Congress is voted for, a criminal 
 offence. It does not say that the neglect or disregard of 
 a duty prescribed by any existing law shall constitute such 
 an offence. It is the neglect or disregard of any duty pre- 
 scribed by any law of the State, present or future. The 
 act of Congress is not changed in terms with the chang- 
 ing laws of the State ; but its penalty is to be shifted with 
 the shifting humors of the State legislatures. I cannot 
 think such punitive legislation is valid which varies, not by 
 direction of the Federal legislators, upon new knowledge 
 or larger experience, but by the direction of some ex- 
 ternal authority which makes the same act lawful in one 
 State and criminal in another, not according to the views 
 of Congress as to its propriety, but to those of another 
 body. The Constitution vests all the legislative power 
 of the Federal government in Congress; and from its 
 nature this power cannot be delegated to others, except 
 as its delegation may be involved by the creation of an 
 inferior local government or department. Congress can 
 endow territorial governments and municipal corpora- 
 tions with legislative powers, as the possession of such 
 powers for certain purposes of local administration is in- 
 dispensable to their existence. So, also, it can invest the 
 heads of departments and of the army and navy with 
 power to prescribe regulations to enforce discipline, order, 
 and efficiency. Its possession is implied in their creation ; 
 but legislative power over subjects which come under the 
 immediate control of Congress, such as defining offences 
 against the United States, and prescribing punishment 
 for them cannot be delegated to any other government or 
 authority. Congress cannot, for example, leave to the 
 States the enactment of laws and restrict the United States 
 to their enforcement. There are many citizens of the 
 United States in foreign countries, in Japan, China, India, 
 and Africa. Could Congress enact that a crime against 
 one of those states should be punished as a crime against 
 the United States? Can Congress abdicate its functions 
 
22 
 
 and depute foreign countries to act for it? If Congress 
 cannot do this with respect to offences against those states, 
 how can it enforce penalties for offences against any other 
 states, though they be of our own Union? If Congress 
 could depute its authority in this way; if it could say 
 that it will punish as an offence what another power en- 
 acts as such, it might do the same thing with respect to 
 the commands of any other authority, as, for example, 
 of the President or the head of a department. It could 
 enact that what the President proclaims shall be law; 
 that what he declares to be offences shall be punished as 
 such. Surely no one will go so far as this, and yet I am 
 unable to see the distinction in principle between the ex- 
 isting law and the one I suppose, which seems so extrava- 
 gant and absurd. 
 
 I will not pursue the subject further, but those who 
 deem this question at all doubtful or difficult, may find 
 something worthy of thought in the opinions of the Court 
 of Appeals of New York and of the Supreme Courts of 
 several other States, where this subject is treated with a 
 fullness and learning, which leave nothing to be improved 
 and nothing to be added. 
 
 I am of opinion that the act of Congress was unauthor- 
 ized and invalid ; that the indictment of the petitioner 
 from Ohio, and also the indictments of the petitioners from 
 Maryland, and their imprisonment, are illegal, and that, 
 therefore, they should all be set at liberty ; and I am author- 
 ized to state that Mr. Justice Clifford concurs with me. 
 
10 
 
The sequestration by the Confederate States of debts owing to loyal 
 citizens, and the extent in which the Confederate Government was 
 to be regarded as a de facto government, considered. 
 
 OF THE 
 
 UNITED STATES SUPREME COURT 
 
 IN 
 
 WILLIAMS & OTHERS vs. BRUFFY, 
 
 Delivered at October Term, 1877,* 
 
 BY 
 
 MR. JUSTICK KIKLD. 
 
 1. The Confederate States were an illegal organization, within the pro- 
 
 vision of the Constitution of the United States prohibiting any 
 treaty, alliance, or confederation of one State with another ; what- 
 ever efficacy, therefore, its enactments possessed in any State entering 
 into that organization must be attributed to the sanction given to 
 them by that State. 
 
 2. Any enactment, from whatever source originating, to which a State 
 
 gives the force of law, is a statute of the State, within the meaning 
 of the act regulating the appellate jurisdiction of this court over 
 the judgments and decrees of the State courts. 
 
 3. An enactment of the Confederate States, enforced as a law of one of 
 
 the States composing that confederation, sequestrating a debt owing 
 by one of its citizens to a citizen of a loyal State as an alien enemy, 
 is void, because it impairs the obligation of the contract, and dis- 
 criminates against citizens of another State. The constitutional 
 provision prohibiting a State from passing a law impairing the obli- 
 gation of contracts equally prohibits a State from enforcing as a law 
 an enactment of that character, from whatever source originating. 
 
 4. When a rebellion becomes organized, and attains such proportions as 
 
 to be able to put a formidable military force in the field, it is usual 
 for the established government to concede to it some belligerent 
 rights ; but to what extent they shall be accorded to the insurgents 
 depends upon the considerations of justice, humanity, and policy 
 controlling the government. 
 
 * Reported in 96 U. S. Reports, 176. 
 
5. The concession of belligerent rights to the Confederate government 
 
 sanctioned no hostile legislation against the citizens of the loyal 
 States. 
 
 6. Where property held by parties in the insurgent States, as trustees or 
 
 bailees of loyal citizens, was forcibly taken from them, they may in 
 some instances be released from liability, their release in such cases 
 depending upon the same principles which control in ordinary cases 
 of violence by an unlawful combination too powerful to be success- 
 fully resisted ; but debts. due such citizens, not being tangible things 
 subject to seizure and removal, are not extinguished by reason of the 
 debtor's coerced payment of equivalent sums to an unlawful com- 
 bination. They can only be satisfied when paid to the creditors to 
 whom they are due, or to others by direction of lawful authority. 
 
 7. De facto governments of two kinds considered : (1) Such as exists after 
 
 it has expelled the regularly-constituted authorities from the seats 
 of power and the public offices, and established its own functionaries 
 in their places, so as to represent in fact the sovereignty of the nation. 
 As far as other nations are concerned, such a government is treated as 
 in most respects possessing rightful authority ; its contracts and 
 treaties are usually enforced ; its acquisitions are retained ; its legis- 
 lation is in general recognized ; and the rights acquired under it are, 
 with few exceptions, respected after the restoration of the authorities 
 which were expelled. (2) Such as exists where a portion of the 
 inhabitants of a country have separated themselves from the parent 
 state and established an independent government. The validity of 
 its acts, both against the parent state and the citizens or subjects 
 thereof, depends entirely upon its ultimate success; if it fail to es- 
 tablish itself permanently, all such acts perish with it ; if it succeed 
 and become recognized, its acts from the commencement of its exist- 
 ence are upheld as those of an independent nation. 
 
 8. The Confederate government was distinguished from each kind of such 
 
 de facto governments. Whatever de facto character may be ascribed to 
 it consists solely in the fact that for nearly four years it maintained 
 a contest with the United States, and exercised dominion over a large 
 extent of territory. Whilst it existed, it was simply the military 
 representative of the insurrection against the authority of the United 
 States ; when its military forces were overthrown, it utterly perished, 
 and with it all its enactments. 
 
 9. The legislative acts of the several States stand on different grounds ; 
 
 and, so far as they did not impair or tend to impair the supremacy 
 of the national authority, or the just rights of citizens under the 
 Constitution, they are, in general, to be treated as valid and binding. 
 
 This was an action of assumpsit for certain goods sold 
 by the plaintiffs in March, 1861, to George Bruffy, since 
 deceased, brought against the administrator of his estate 
 
in one of the Circuit Courts of Virginia. The plaintiffs 
 at the time of the sale were, and still are, residents of the 
 State of Pennsylvania, and the deceased was then, and, 
 until his death, which occurred during the war, continued 
 to be, a resident of the State of Virginia. 
 
 The defendant pleaded the general issue, and two 
 special pleas, in one of which he averred in substance 
 that Pennsylvania was one of the United States and that 
 Virginia was one of the States which had formed a con- 
 federation known as the Confederate States; that, from 
 some time in 1861 until some time in 1865, the govern- 
 ment of the United States was at war with the govern- 
 ment of the Confederate States; that, on the 30th of 
 August, 1861, the Confederate States enacted a law se- 
 questrating the lands, tenements, goods, chattels, rights, 
 and credits within the Confederate States, and every right 
 and interest therein, held by or for any alien enemy since 
 the 21st of May, 1861, excepting such debts as may have 
 been paid into the treasury of one of the Confederate 
 States prior to the passage of the law, and making it the 
 duty of every attorney, agent, former partner, trustee, or 
 other person holding or controlling any such property or 
 interest to inform the receiver of the Confederate States 
 of the fact, and to render an account thereof, and, so far 
 as practicable, to place the same in the hands of the re- 
 ceiver; and declaring that thereafter such person should 
 be acquitted of all responsibility for the property thus 
 turned over, and that any person failing to give the in- 
 formation mentioned should be deemed guilty of a high 
 misdemeanor; that, on the 1st of January, 1862, this law 
 being in force, the defendant's intestate paid over to the 
 receiver of the Confederate States the amount claimed by 
 the plaintiffs, and that, by virtue of such payment, he is 
 discharged from the debt. The second special plea is 
 substantially like the first, with the further averment 
 that the debt due to the plaintiffs was sequestrated by a 
 Confederate district court in Virginia, upon the petition 
 of the receiver, who afterwards collected it with interest. 
 
The plaintiffs demurred to these pleas, but the demur- 
 rers were overruled. The case was then submitted to the 
 court upon certain depositions and an agreed statement 
 of facts. The depositions established the sale and deliv- 
 ery of the goods, and the agreed statement showed the 
 residence of the plaintiffs and of the deceased during the 
 war and the payment by the latter of the debt in suit to 
 the sequestrator of the Confederate government under a 
 judgment of a Confederate district court. The court be- 
 low gave judgment for the defendant, and the subsequent 
 application of the plaintiffs to the Court of Appeals for a 
 supersedeas was denied, that court being of opinion that 
 the judgment was plainly right. A denial on that ground 
 is deemed equivalent to an affirmance of the judgment 
 so far as to authorize a writ of error from the Supreme 
 Court of the United States to the Court of Appeals ; and 
 the defendant sued out such writ. 
 
 Mr. Justice FIELD, after stating the case, delivered the 
 opinion of the Court. 
 
 The question for our determination arises upon the 
 special pleas, and relates to the sufficiency of the facts 
 therein set forth as a defence, that is, to the effect of the 
 sequestration of the debt by the Confederate government 
 as a bar to the action. 
 
 There is, however, a preliminary question to be con- 
 sidered. It is contended by the defendant that the record 
 presents no ground for the exercise of our appellate juris- 
 diction. The second section of the amendatory Judiciary 
 Act of 1867, as given in the Revised Statutes, provides 
 for a review by this court of the final judgment or decree 
 of the highest court of a State, in which a decision could 
 be had, in three classes of cases: 
 
 1st. Where is drawn in question the validity of a treaty 
 or statute of or an authority exercised under the United 
 States, and the decision is against their validity. 
 
2d. Where is drawn in question the validity of a 
 statute of or an authority exercised under any State on 
 the ground of their being repugnant to the Constitution, 
 treaties, or laws of the United States, and the decision is 
 in favor of their validity ; and 
 
 3d. Where any title, right, privilege, or immunity is 
 claimed under the Constitution, or any treaty or statute 
 of, or commission held or authority exercised under the 
 United States, and the decision is against the title, right, 
 privilege, or immunity specially set up or claimed by 
 either party under such Constitution, treaty, statute, com- 
 mission, or authority. 
 
 It is upon the last two clauses that the jurisdiction of 
 the court is asserted by the plaintiffs; and we are of 
 opinion that it can be maintained upon both of them. 
 The pleas aver that a confederation was formed by Vir- 
 ginia and other States, called the Confederate States of 
 America, and that under a law of this confederation, en- 
 forced in Virginia, the debt due to the plaintiffs was 
 sequestrated. Now, the Constitution of the United States 
 prohibits any treaty, alliance, or confederation by one 
 State with another. The organization whose enactment 
 is pleaded cannot therefore be regarded in this court as 
 having any legal existence. It follows that whatever 
 efficacy the enactment possessed in Virginia must be at- 
 tributed to the sanction given to it by that State. Any 
 enactment, from whatever source originating, to which a 
 State gives the force of law, is a statute of the State within 
 the meaning of the clause cited relating to the jurisdic- 
 tion of this court. It would be a narrow construction to 
 limit the term to such enactments as have gone through 
 various stages of consideration by the legislature. There 
 may be many acts authorized by the constitution of a 
 State, or by the convention that framed it, which have 
 not been submitted to the consideration of its legislature, 
 yet have all the efficacy of laws. By the only authority 
 which can be recognized as having any 
 
that is, the State of Virginia, this act of the unauthor- 
 ized confederation was enforced as a law of the Common- 
 wealth. Its validity was drawn in question on the ground 
 that it was repugnant to the Constitution of the United 
 States, and the decision of the court below was in favor 
 of its validity. Its repugnancy was asserted in this, that 
 it impaired the obligation of the contract between the 
 plaintiffs and the deceased, and undertook to release the 
 latter from liability, contrary to the express prohibition 
 of that instrument ; and, also, in this, that it discrimi- 
 nated against the plaintiffs as citizens of a loyal State, 
 and refused to them the same privileges accorded to the 
 citizens of Virginia, contrary to the provision declaring 
 that "the citizens of each State shall be entitled to all the 
 privileges and immunities of citizens in the several 
 States." This provision has been held in repeated adju- 
 dications of this court to prohibit discriminating legisla- 
 tion by one State against the citizens of another State, 
 and to secure to them the equal protection of its laws, and 
 the same freedom possessed by its own citizens in the 
 acquisition and enjoyment of property.* The enactment 
 of the confederation which by the assent of Virginia was 
 enforced as a law in that Commonwealth, and which is 
 now invoked by the defendant, not only impaired, but 
 attempted to destroy the obligation of the contract of the 
 deceased with the plaintiffs; and it discriminated against 
 them as citizens of a State that maintained its allegiance 
 to the Union. The demurrers to the special pleas raised 
 these objections. The decision made involved the up- 
 holding of the Confederate enactment and the denial of 
 the immunity claimed by the plaintiffs. It could not 
 have been made without passing upon both of these 
 points. It is sufficient to give this court jurisdiction that, 
 though not in terms specially stated in the pleadings, 
 they were necessarily involved in the decision, and that 
 
 *Corfield v. Coryell, 4 Wash. C. C. 380; Ward v. Maryland, 12 Wall. 
 418; Paul v. Virginia, 8 Id. 168. 
 
without their consideration the judgment would not have 
 been rendered. We have no doubt of our jurisdiction 
 and we proceed, therefore, to the merits of the case. 
 
 Treating the Confederate enactment as a law of the 
 State which we can consider, there can be no doubt of its 
 invalidity. The constitutional provision prohibiting a 
 State from passing a law impairing the obligation of con- 
 tracts, equally prohibits a State from enforcing as a law an 
 enactment of that character from whatever source origi- 
 nating. And the constitutional provision securing to 
 the citizens of each State the privileges and immunities 
 of citizens in the several States could not have a more 
 fitting application than in condemning as utterly void 
 the act under consideration here which Virginia enforced 
 as a law of that Commonwealth ; treating the plaintiffs 
 as alien enemies because of their loyalty to the Union, 
 and decreeing for that reason a sequestration of debts 
 due to them by its citizens. 
 
 The defendant, however, takes the ground that the 
 enactment of the Confederate States is that of an inde- 
 pendent nation, and must be so treated in this case. His 
 contention is substantially this : that the Confederate 
 government, from April, 1861, until it was overthrown 
 in 1865, was a government de facto, complete in all its 
 parts, exercising jurisdiction over a well-defined territory, 
 which included that portion of Virginia where the de- 
 ceased resided, and as such de facto government it engaged 
 in war with the United States; and possessed and was 
 justified in exercising within its territorial limits all the 
 rights of war which belonged to an independent nation, 
 and among them, that of confiscating debts due by its 
 citizens to its enemies. 
 
 In support of this position reference is made to nume- 
 rous instances of de facto governments which have existed 
 in England and in other parts of Europe and in America, 
 to the doctrines of jurists and writers on public law re- 
 specting the powers of such governments, and the validity 
 
8 
 
 accorded to their acts, to the opinion of this court in 
 Thorington v. Smith and in the Prize Cases, to the conces- 
 sion of belligerent rights to the Confederate government, 
 and to the action of the States during our own Revolution- 
 ary war and the period immediately following it. 
 
 We do not question the doctrines of public law which 
 have been invoked, nor their application in proper cases, 
 but it will be found upon examination that there is an 
 essential difference between the government of the Con- 
 federate States and those de facto governments. The latter 
 are of two kinds. One of them is such as exists after it 
 has expelled the regularly constituted authorities from 
 the seats of power and the public offices, and established 
 its own functionaries in their places, so as to represent in 
 fact the sovereignty of the nation. Such was the govern- 
 ment of England under the Commonwealth established 
 upon the execution of the King and the overthrow of the 
 loyalists. As far as other nations are concerned such a 
 government is treated as in most respects possessing right- 
 ful authority ; its contracts and treaties are usually en- 
 forced; its acquisitions are retained; its legislation is in 
 general recognized ; and the rights acquired under it are, 
 with few exceptions, respected after the restoration of the 
 authorities which were expelled. All that counsel say of 
 de facto governments is justly said of a government of 
 this kind. But the Confederate government was not of 
 this kind. It never represented the nation, it never ex- 
 pelled the public authorities from the country, it never 
 entered into any treaties, nor was it ever recognized as 
 that of an independent power. It collected an immense 
 military force and temporarily expelled the authorities of 
 the United States from -the territory over which it exer- 
 cised an usurped dominion; but in that expulsion the 
 United States never acquiesced; on the contrary, they 
 immediately resorted to similar force to regain possession 
 of that territory and re-establish their authority, and they 
 continued to use such force until they succeeded. It 
 
would be useless to comment upon the striking contrast 
 between a government of this nature, which with all its 
 military strength never had undisputed possession of 
 power for a single day, and a government like that of the 
 Commonwealth of England under Parliament or Crom- 
 well. 
 
 The other kind of de facto governments, to which the 
 doctrines cited relate, is such as exists where a portion of 
 the inhabitants of a country have separated themselves 
 from the parent state and established an independent gov- 
 ernment. The validity of its acts both against the parent 
 state and its citizens or subjects depends entirely upon its 
 ultimate success. If it fail to establish itself permanently, 
 all such acts perish with it. If it succeed and become 
 recognized, its acts from the commencement of its exist- 
 ence are upheld as those of an independent nation. Such 
 was the case of the State governments under the old con- 
 federation on their separation from the British Crown. 
 Having made good their declaration of independence, 
 everything they did from that date was as valid as if their 
 independence had been at once acknowledged. Con- 
 fiscations, therefore, of enemy's property made by them 
 were sustained as if made by an independent nation. 
 But if they had failed in securing their independence, 
 and the authority of the King had been re-established in 
 this country, no one would contend that their acts against 
 him or his loyal subjects could have been upheld as rest- 
 ing upon any legal foundation. 
 
 No case has been cited in argument, and we think none 
 can be found, in which the acts of a portion of a state 
 unsuccessfully attempting to establish a separate revolu- 
 tionary government, have been sustained as a matter of 
 legal right. As justly observed by the late Chief Justice 
 in the case of Shortridge v. Mason, decided at the circuit, 
 and in all material respects like the one at bar: "Those 
 who engage in rebellion must consider the consequences. 
 If they succeed, rebellion becomes revolution, and the 
 
10 
 
 new government will justify its founders. If they fail, all 
 their acts hostile to the rightful government are violations 
 of law and originate no rights which can be recognized 
 by the courts of the nation whose authority and existence 
 have been alike assailed." * 
 
 When a rebellion becomes organized and attains such 
 proportions as to be able to put a formidable military 
 force in the field, it is usual for the established govern- 
 ment to concede to it some belligerent rights. This con- 
 cession is made in the interests of humanity, to prevent 
 the cruelties which would inevitably follow mutual re- 
 prisals and retaliations. But belligerent rights, as the 
 terms import, are rights which exist only during war; 
 and to what extent they shall be accorded to insurgents 
 depends upon the considerations of justice, humanity, and 
 policy controlling the government. The rule stated by 
 Vattel,-that the justice of the cause between two enemies 
 being by the law of nations reputed to be equal, whatsoever 
 is permitted to the one in virtue of war is also permitted 
 to the other, applies only to cases of regular war between 
 independent nation-s. It has no application to the case 
 of a war between an established government and insurg- 
 ents seeking to withdraw themselves from its jurisdiction 
 or to overthrow its authority.f The concession made to 
 the Confederate government in its military character was 
 shown in the treatment of captives as prisoners of war, 
 the exchange of prisoners, the recognition of flags of truce, 
 the release of officers on parole, and other arrangements 
 having a tendency to mitigate the evils of the contest. 
 The concession placed its soldiers and military officers in 
 its service on the footing of those engaged in lawful war, 
 and exempted them from liability for acts of legitimate 
 warfare. But it conferred no further immunity or any 
 other rights. It in no respect condoned acts against the 
 government not committed by armed force in the mili- 
 
 * Chase's Decisions, page 144. 
 
 f Halleck's Inter. Law, ch. xiv, sec 9. 
 
11 
 
 tary service of the rebellious organization. It sanctioned 
 no hostile legislation ; it gave validity to no contracts for 
 military stores; and it impaired in no respect the rights 
 of loyal citizens as they had existed at the commencement 
 of hostilities. Parties residing in the insurrectionary 
 territory, having property in their possession as trustees 
 or bailees of loyal citizens, may in some instances have 
 had such property taken from them by force, and in that 
 event they may perhaps be released from liability. Their 
 release will depend upon the same principles which con- 
 trol in ordinary cases of violence by an unlawful combi- 
 nation too powerful to be successfully resisted. 
 
 But debts not being tangible things subject to physical 
 seizure and removal, the debtors cannot claim release 
 from liability to their creditors by reason of the coerced 
 payment of equivalent sums to an unlawful combination. 
 The debts can only be satisfied when paid to the creditors 
 to whom they are due, or to others by direction of lawful 
 authority. Any sum which the unlawful combination 
 may have compelled the debtors to pay to its agents on 
 account of debts to loyal citizens cannot have any effect 
 upon their obligations; they remain subsisting and un- 
 impaired. The concession of belligerent rights to the 
 rebellious organization yielded nothing to its pretensions 
 of legality. If it had succeeded in its contest it would 
 have protected the debtor from further claim for the 
 debt, but as it failed the creditor may have recourse to 
 the courts of the country as prior to the rebellion. It 
 would be a strange thing, if the nation, after succeeding 
 in suppressing the rebellion and re-establishing its au- 
 thority over the insurrectionary district, should by any 
 of its tribunals recognize as valid the attempt of the re- 
 bellious organization to confiscate a debt due to a loyal 
 citizen as a penalty for his loyalty. Such a thing would 
 be unprecedented in the history of unsuccessful rebel- 
 lions, and would rest upon no just principle. 
 
 The immense power exercised by the government of 
 
12 
 
 the Confederate States for nearly four years, the territory 
 over which it extended, the vast resources it wielded, 
 and the millions who acknowledged its authority, pre- 
 sent an imposing spectacle well fitted to mislead the 
 mind in considering the legal character of that organiza- 
 tion. It claimed to represent an independent nation and 
 to possess sovereign powers; and as such to displace the 
 jurisdiction and authority of the United States from nearly 
 half of their territory, and instead of their laws to substi- 
 tute and enforce those of its own enactment. Its preten- 
 sions being resisted, they were submitted to the arbitra- 
 ment of war. In that contest the confederacy failed, and 
 in its failure its pretensions were dissipated, its armies 
 scattered, and the whole fabric of its government broken 
 in pieces. The very property it had amassed passed to 
 the nation. The United States during the whole contest 
 never for one moment renounced their claim to supreme 
 jurisdiction over the whole country, and to the allegiance 
 of every citizen of the republic. They never acknowl- 
 edged in any form, or through any of their departments, 
 the lawfulness of the rebellious organization, or the valid- 
 ity of any of its acts, except so far as such acknowledg- 
 ment may have arisen from conceding to its armed forces 
 in the conduct of the war the standing and rights of those 
 engaged in lawful warfare. They never recognized its 
 asserted power of rightful legislation. 
 
 There is nothing in the language used in Thorington 
 v. Smith* which conflicts with these views. In that case 
 the Confederate government is characterized as one of 
 paramount force, and classed among the governments of 
 which the one maintained by Great Britain in Castine, 
 from September, 1814, to, the treaty of peace in 1815, and 
 the one maintained by the United States in Tampico, dur- 
 ing our war with Mexico, are examples. Whilst the British 
 retained possession of Castine the inhabitants were held to 
 be subject to such laws as the British government chose to 
 
 *8 Wall. 9. 
 
13 
 
 recognize and impose. Whilst the United States retained 
 possession of Tampico, it was held that it must be regarded 
 and respected as their territory. The Confederate gov- 
 ernment, the court observed, differed from these tempo- 
 rary governments in the circumstance that its authority 
 did not originate in lawful acts of regular war, but it was 
 not on that account less actual or less supreme ; and its 
 supremacy, while not justifying acts of hostility to the 
 United States, " made obedience to its authority in civil 
 and local matters not only a necessity but a duty." All 
 that was meant by this language was that as the actual 
 supremacy of the Confederate government existed over 
 certain territory, individual resistance to its authority 
 then would have been futile, and, therefore, unjustifiable. 
 In the face of an overwhelming force obedience in such 
 matters may often be a necessity, and in the interests of 
 order a duty. No concession is thus made to the right- 
 fulness of the authority exercised. 
 
 Nor is there anything in the decision of this court in 
 the Prize Cases which militates against the views ex- 
 pressed. It was there simply held, that when parties in 
 rebellion had occupied and held in a hostile manner a 
 portion of the territory of the country, declared their in- 
 dependence, cast off their allegiance, organized armies, 
 and commenced hostilities against the government of 
 the United States, war existed ; that the President was 
 bound to recognize the fact and meet it without waiting 
 for the action of Congress ; that it was for him to deter- 
 mine what degree of force the crisis demanded, and 
 whether the hostile forces were of such magnitude as to 
 require him to accord to them the character of belliger- 
 ents ; and that he had the right to institute a blockade 
 of ports in their possession, which neutrals were bound 
 to recognize. It was also held that as the rebellious 
 parties had formed a confederacy and thus become an 
 organized body, and the territory dominated by them 
 was defined, and the President had conceded to this or- 
 
14 
 
 ganization in its military character belligerent rights, all 
 the territory must be regarded as enemy's territory, and 
 its inhabitants as enemies whose property on the high 
 seas would be lawful subjects of capture. There is no- 
 thing in these doctrines which justified the Confederate 
 States in claiming the status of foreign states during the 
 war, or in treating the inhabitants of the loyal States as 
 alien enemies. 
 
 Nor is there anything in the citations so often made 
 from Wheaton and Vattel, as to the rights of contending 
 parties in a civil war, which, if properly applied, militates 
 against these views. After stating that according to Gro- 
 tius a civil war is public on the side of the established 
 government, and private on the part of the people resist- 
 ing its authority, Wheaton says: " But the general usage 
 of nations regards such a war as entitling both the con- 
 tending parties to all the rights of war as against each 
 other and even as respects neutral nations." * The writer 
 is here referring to the consideration with which foreign 
 nations treat a civil war in another country. So far as 
 they are concerned, the contending parties to such a war, 
 once recognized as belligerents, are regarded as entitled 
 to all the rights of war. As between the belligerent 
 parties, foreign nations, from general usage, are expected 
 to observe a strict neutrality. The language used has no 
 reference to the rights which a sovereign must concede, 
 or is expected to concede, to insurgents in armed rebel- 
 lion against his authority. Upon the doctrine stated in 
 the citation, the United States acted towards the contend- 
 ing parties in the civil war in South America. In speak- 
 ing on this subject in the case of Tfie Santissima Trinidad,^ 
 this court said: "The government of the United States 
 has recognized the existence of a civil war between Spain 
 and her colonies, and has avowed a determination to re- 
 main neutral between the parties, and to allow to each 
 
 * Wheaton's International Law, sec. 296. 
 f 7 Wheat. 337. 
 
15 
 
 the same rights of asylum and hospitality and inter- 
 course. Each party is, therefore, deemed by us a bellig- 
 erent nation, having, so far as concerns us, the sovereign 
 rights of war, and entitled to be respected in the exercise 
 of those rights. We cannot interfere to the prejudice of 
 either belligerent without making ourselves a party to 
 the contest and departing from the position of neutrality." 
 Vattel says: "A civil war breaks the bands of society 
 and government, or, at least, suspends their force and 
 effect ; it produces in the nation two independent parties, 
 who consider each other as enemies, and acknowledge no 
 common judge. Those two parties, therefore, must neces- 
 sarily be considered as thenceforward constituting, at 
 least for a time, two separate bodies two distinct socie- 
 ties. . . . On earth they have no common superior. 
 They stand, therefore, in precisely the same predicament 
 as two nations who engage in a contest, and, being un- 
 able to come to an agreement, have recourse to arms. 
 This being the case, it is very evident that the common 
 laws of war those maxims of humanity, moderation, 
 and honor, which we have already detailed in the course 
 of this work ought to be observed by both parties in 
 every civil war. For the same reasons which render the 
 observance of those maxims a matter of obligation be- 
 tween state and state, it becomes equally and even more 
 necessary in the unhappy circumstance of two incensed 
 parties lacerating their common country." * All that 
 Vattel means by this language is that in a civil war the 
 contending parties have a right to claim the enforcement 
 of the same rules which govern the conduct of armies in 
 wars between independent nations rules intended to 
 mitigate the cruelties which would attend mutual repri- 
 sals and retaliations. He has no reference to the exercise 
 of legislative power by either belligerent in furtherance 
 of its cause. The validity of such legislation depends 
 not upon the existence of hostilities, but upon the ulti- 
 mate success of the party by which it is adopted. 
 
 * Vattel's Law of Nations, p. 425. 
 
16 
 
 It is unnecessary to pursue the subject further. What- 
 ever de facto character may be ascribed to the Confederate 
 government consists solely in the fact, that it maintained 
 a contest with the United States for nearly four years and 
 dominated for that period over a large extent of territory. 
 When its military forces were overthrown, it utterly per- 
 ished, and with it all its enactments.* 
 
 Whilst thus holding that there was no validity in any 
 legislation of the Confederate States which this court can 
 recognize, it is proper to observe that the legislation of 
 the States stands on very different grounds. The same 
 general form of government, the same general laws for 
 the administration of justice and the protection of private 
 rights, which had existed in the States prior to the rebel- 
 lion, remained during its continuance and afterwards. 
 As far as the acts of the States did not impair or tend to 
 impair the supremacy of the national authority or the 
 just rights of citizens under the Constitution, they are in 
 general to be treated as valid and binding. As we said in 
 Horn v. Lockhart.-'f " The existence of a state of insurrec- 
 tion and war did not loosen the bonds of society, or do 
 away with civil government or the regular administra- 
 tion of the law. Order was to be preserved, police regu- 
 lations maintained, crime prosecuted, property protected, 
 contracts enforced, marriages celebrated, estates settled, 
 and the transfer and descent of property regulated pre- 
 cisely as in time of peace. No one, that we are aware of, 
 seriously questions the validity of judicial or legislative acts 
 in the insurrectionary States touching these and kindred 
 subjects, where they were not hostile in their purpose or 
 mode of enforcement to the authority of the national 
 government, and did not impair the rights of citizens 
 under the Constitution." The same doctrine has been 
 asserted in numerous other cases. 
 
 * Thorington v. Smith, 8 Wall. 9 ; see also Keppel's Adms. v. Peters- 
 burg R. R. Co., Chase's Decisions, 167. 
 1 17 Wall. 580. 
 
17 
 
 It follows from the views expressed that the State court 
 erred in overruling the demurrers to the special pleas. 
 Those demurrers should have been sustained, and the 
 plaintiffs should have had judgment upon the agreed 
 statement of facts for the amount of their claim with in- 
 terest from its maturity, deducting in the computation of 
 time the period between the 27th of April, 1861, at which 
 date the war is considered to have commenced in Vir- 
 ginia, and the 2d of April, 1866, when it is deemed to 
 have closed in that State.* 
 
 The action of the Court of Appeals of Virginia in re- 
 fusing a supersedeas of the judgment of the Circuit Court 
 must, therefore, be reversed, and the cause remanded for 
 further proceedings in accordance with this opinion ; and 
 it is so ordered. 
 
 * The Protector, 12 Wall. 702 ; Brown v. Hiatts, 15 Id. 185. 
 
WIVEIlSITr 
 
 03T 
 
Officers and soldiers of the army of the United States, in service 
 during the late Civil War, were not subject to the laws of the 
 enemy's country, which they invaded, for offences committed there 
 as such officers and soldiers. 
 
 OPINION 
 
 OP THE 
 
 UNITED STATES SUPREME COURT 
 
 IN 
 
 COLEMAN vs. TENNESSEE, 
 
 Delivered at October Term, 1878,* 
 BY 
 
 MR. JUSTICK 
 
 1. The thirtieth section of the act of March 3, 1863, (12 Stat. 731,) en- 
 
 titled "An act for enrolling and calling out the national forces, and 
 for other purposes," did not make the jurisdiction of the military 
 tribunals over the offences therein designated, when committed by 
 persons in the military service of the United States, and subject to 
 the articles of war, exclusive of that of such courts of the loyal 
 States as were open and in the undisturbed exercise of their juris- 
 diction. 
 
 2. When the territory of the States, which were banded together in hos- 
 
 tility to the national government, and making war against it, was in 
 the military occupation of the United States, the tribunals mentioned 
 in said section had, under the authority conferred thereby, and under 
 the laws of war, exclusive jurisdiction to try and punish offences of 
 every grade committed there by persons in the military service. 
 
 3. Officers and soldiers of the army of the United States were not subject 
 
 to the laws of the enemy, nor amenable to his tribunals for offences 
 
 * Reported in 97 U. S. Reports, 509. 
 
committed by them during the war. They were answerable only 
 to their own government, and only by its laws, as enforced by its 
 armies, could they be punished. 
 
 4. Unless suspended or superseded by the commander of the forces of 
 
 the United States which occupied Tennessee, the laws of that State, 
 so far as they affected its inhabitants among themselves, remained 
 in force during the war, and over them its tribunals, unless super- 
 seded by him, continued to exercise their ordinary jurisdiction. 
 
 5. A., charged with having committed murder in Tennessee, whilst he 
 
 was there in the military service of the United States during the 
 rebellion, was, by a court-martial, then and there convicted, and 
 sentenced to suffer death. The sentence, for some cause unknown, 
 was not carried into effect. After the constitutional relations of that 
 State to the Union were restored, he was, in one of her courts, in- 
 dicted for the same murder. To the indictment he pleaded his con- 
 viction before the court-martial. The plea being overruled, he was 
 tried, convicted, and sentenced to death. Held, 1. That the State 
 court had no jurisdiction to try him for the offence, as he, at the 
 time of committing it, was not amenable to the laws of Tennessee. 
 2. That his plea, although not proper, inasmuch as it admitted the 
 jurisdiction of that court to try and punish him for the offence, if it 
 were not for such former conviction, would not prevent this court 
 from given effect to the objection taken in this irregular way to such 
 jurisdiction. Accordingly, this court reverses the judgment, and di- 
 rects the discharge of A. from custody under the indictment. 
 
 Error to the Supreme Court of the State of Tennessee. 
 
 Mr. Justice FIELD, after stating the facts, delivered the 
 opinion of the Court. 
 
 This case comes before us from the Supreme Court of 
 Tennessee. The plaintiff in error, the defendant in the 
 court below, was indicted in the Criminal Court for the 
 District of Knox County in that State, on the 2d of Oc- 
 tober, 1874, for the murder of one Mourning Ann Bell, 
 alleged to have been committed in that county on the 
 7th of March, 1865. To this indictment he pleaded not 
 guilty, and a former conviction for the same offence by a 
 general court-martial regularly convened for his trial at 
 Knoxville, Tennessee, on the 27th of March, 1865, the 
 United States at that time, and when the offence was 
 
committed, occupying with their armies East Tennessee 
 as a military district, and the defendant being a regular 
 soldier in their military service, subject to the articles of 
 war, military orders, and such military laws as were there 
 in force by their authority. The plea states that, before 
 the said court-martial thus convened at Knoxville, then 
 the headquarters of the military district, the defendant 
 was arraigned upon a charge of murder, in having killed 
 the same person mentioned in the indictment, and that 
 he was afterwards, on the 9th of May, 1865, tried and 
 convicted of the offence by that tribunal, and sentenced 
 to death by hanging, and that said sentence is still stand- 
 ing as the judgment of the court-martial, approved as 
 required by law in such cases, without any other or fur- 
 ther action thereon. In consideration of the premises, 
 and by reason of the said trial and conviction, and of the 
 jeopardy involved in said proceedings, the defendant 
 prays that the indictment may be quashed. 
 
 Objection being taken by demurrer to this plea, it was 
 twice amended by leave of the court. The first amend- 
 ment consisted in setting forth with particularity the 
 organization of the court-martial and the proceedings 
 before it upon which the defendant was convicted of the 
 offence with which he is charged in the indictment. 
 The second amendment consisted in adding an averment 
 that the offence charged was committed, and that the 
 court-martial which tried the defendant was held in time 
 of civil war, insurrection, and rebellion. 
 
 To the plea thus amended a demurrer was sustained, 
 on two grounds; one of which was, in substance, that 
 the defendant's conviction of the offence charged by a 
 court-martial, under the laws of the United States, on the 
 9th of May, 1865, was not a bar to the indictment for the 
 same offence ; because by the murder alleged he was also 
 guilty of an offence against the laws of Tennessee. 
 
 The defendant was thereupon put upon his trial in the 
 criminal court, convicted of murder, and sentenced to 
 
death. On appeal to the Supreme Court of the State the 
 judgment was affirmed. 
 
 Pending the appeal to that court, the defendant was 
 brought before the Circuit Court of the United States for 
 the Eastern District of Tennessee on habeas corpus, upon 
 a petition stating that he was unlawfully restrained of 
 his liberty and imprisoned by the sheriff of Knox County, 
 upon the charge of murder, for which he had been in- 
 dicted, tried, and convicted as already mentioned; and 
 setting forth his previous conviction for the same 
 offence by a court-martial, organized under the laws of 
 the United States, substantially as in the plea to the in- 
 dictment. The sheriff made a return to the writ, that he 
 held the defendant upon a capias from the criminal court 
 for the offence of murder, and also upon an indictment 
 for assisting a prisoner in making his escape from jail. 
 The Circuit Court being of opinion that so far as the 
 defendant was held under the charge of murder, he was 
 held in contravention of the Constitution and laws of 
 the United States, ordered his release from custody upon 
 that charge. His counsel soon afterwards presented a 
 copy of this order to the Supreme Court of Tennessee, 
 and moved that he be discharged. That court took the 
 motion under advisement, and disposed of it together 
 with the appeal from the Criminal Court, holding, in a 
 carefully prepared opinion, that the act of Congress of 
 February 5, 1867, under which the writ of habeas corpus 
 was issued, did not confer upon the Federal Court, or 
 upon any of its judges, authority to interfere with the 
 State courts in the exercise of their jurisdiction over of- 
 fences -against the laws of the State, especially when, as 
 in this case, the question raised by the pleadings was 
 one which would enable the accused to have a revision 
 of their action by the Supreme Court of the United 
 States ; and, therefore, that the order of the Circuit Court 
 in directing the discharge of the defendant was a nullity. 
 And upon the question of the effect of the conviction by 
 
the court-martial, it held that the conviction constituted 
 no bar to the indictment in the State court for the same 
 offence, on the ground that the crime of murder, com- 
 mitted by the defendant whilst a soldier in the military 
 service, was not less an offence against the laws of the 
 State, and punishable by its tribunals, because it was 
 punishable by a court-martial under the laws of the 
 United States. 
 
 The case being brought to this court, it has been argued 
 as though its determination depended upon the construc- 
 tion given to the thirtieth section of the act of Congress 
 of March 3, 1863, to enroll and call out the national 
 forces, the defendant's counsel contending that the sec- 
 tion vested in general courts-martial and military com- 
 missions the right to punish for the offences designated 
 therein, when committed in time of war, by persons in 
 the military service of the United States, and subject to 
 the articles of war, to the exclusion of jurisdiction over 
 them by the State courts. That section enacts : 
 
 " That in time of war, insurrection, or rebellion, murder, assault 
 and battery with an intent to kill, manslaughter, mayhem, wound- 
 ing by shooting or stabbing with an intent to commit murder, 
 robbery, arson, burglary, rape, assault and battery with an intent 
 to commit rape, and larceny, shall be punishable by the sentence 
 of a general court-martial or military commission, when commit- 
 ted by persons who are in the military service of the United 
 States, and subject to the articles of war ; and the punishment for 
 such offences shall never be less than those inflicted by the laws 
 of the State, Territory, or district in which they may have been 
 committed." (12 Stat. 736.) 
 
 The section is part of an act containing numerous pro- 
 visions for the enrolment of the national forces, designat- 
 ing who shall constitute such forces ; who shall be exempt 
 from military service; when they shall be drafted for 
 service ; when substitutes may be allowed ; how deserters 
 and spies and persons resisting the draft shall be pun- 
 ished ; and many other particulars, having for their ob- 
 ject to secure a large force to carry on the then existing 
 war, and to give efficiency to it when called into service. 
 
G 
 
 It was enacted not merely to insure order and discipline 
 among the men composing those forces, but to protect 
 citizens not in the military service from the violence of 
 soldiers. It is a matter well known that the march even 
 of an army not hostile is often accompanied with acts of 
 violence and pillage by straggling parties of soldiers, 
 which the most rigid discipline is hardly able to prevent. 
 The offences mentioned are those of most common occur- 
 rence, and the swift and summary justice of a military 
 court was deemed necessary to restrain their commis- 
 sion. 
 
 But the section does not make the jurisdiction of the 
 military tribunals exclusive of that of the State courts. 
 It does not declare that soldiers committing the offences 
 named shall not be amenable to punishment by the State 
 courts. It simply declares that the offences shall be 
 " punishable," not that they shall be punished by the 
 military courts ; and this is merely saying that they may 
 be thus punished. 
 
 Previous to its enactment, the offences designated were 
 punishable by the State courts, and persons in the mili- 
 tary service who committed them were delivered over to 
 those courts for trial ; and it contains no words indicat- 
 ing an intention on the part of* Congress to take from 
 them the jurisdiction in this respect which they had 
 always exercised. With the known hostility of the 
 American people to any interference by the military with 
 the regular administration of justice in the civil courts, 
 no such intention should be ascribed to Congress in the 
 absence of clear and direct language to that effect. 
 
 We do not mean to intimate that it was not within the 
 competency of Congress, to confer exclusive jurisdiction 
 upon military courts over offences committed by persons 
 in the military service of the United States. As Congress 
 is expressly authorized by the Constitution " to raise and 
 support armies," and " to make rules for the government 
 and regulation of the land and naval forces," its control 
 
over the whole subject of the formation, organization, 
 and government of the national armies, including therein 
 the punishment of offences committed by persons in the 
 military service, would seem to be plenary. All we now 
 affirm is, that by the law to which we are referred, the 
 thirtieth section of the Enrolment Act, no such exclusive 
 jurisdiction is vested in the military tribunals mentioned. 
 No public policy would have been subserved by invest- 
 ing them with such jurisdiction, and many reasons may 
 be suggested against it. Persons in the military service 
 could not have been taken from the army by process of 
 the State courts without the consent of the military au- 
 thorities; and therefore no impairment of its efficiency 
 could arise from the retention of jurisdiction by the 
 State courts to try the offences. The answer of the mili- 
 tary authorities to any such process would have been, 
 " We are empowered to try and punish the persons who 
 have committed the offences alleged, and we will see that 
 justice is done in the premises." Interference with the 
 army would thus have been impossible; and offences 
 committed by soldiers, discovered after the army had 
 marched to a distance, when the production of evidence 
 before a court-martial would have been difficult, if not 
 impossible, or discovered after the war was over and the 
 army disbanded, would not go unpunished. Surely Con- 
 gress could not have intended that in such cases the 
 guilty should go free. 
 
 In denying to the military tribunals exclusive jurisdic- 
 tion, under the section in question, over the offences 
 mentioned, when committed by persons in the military 
 service of the United States and subject to the articles of 
 war, we have reference to them when they were held in 
 States occupying, as members of the Union, their normal 
 and constitutional relations to the Federal gorernment, 
 in which the supremacy of that government was recog- 
 nized, and the civil courts were open and in the undis- 
 turbed exercise of their jurisdiction. When the armies 
 
8 
 
 of the United States were in the territory of insurgent 
 States, banded together in hostility to the national gov- 
 ernment and making war against it, in other words, 
 when the armies of the United States were in the enemy's 
 country, the military tribunals mentioned had, under the 
 laws of war, and the authority conferred by the section 
 named, exclusive jurisdiction to try and punish offences 
 of every grade committed by persons in the military serv- 
 ice. Officers and soldiers of the armies of the Union 
 were not subject during the war to the laws of the enemy, 
 or amenable to his tribunals for offences committed by 
 them. They were answerable only to their own govern- 
 ment, and only by its laws, as enforced by its armies, 
 could they be punished. 
 
 It is well settled that a foreign army permitted to 
 march through a friendly country, or to be stationed . in 
 it, by permission of its government or sovereign, is ex- 
 empt from the civil and criminal jurisdiction of the place. 
 The sovereign is understood, said this court in the cele- 
 brated case of The Exchange, (7 Cranch, 139,) to cede a 
 portion of his territorial jurisdiction when he allows the 
 troops of a foreign prince to pass through his dominions : 
 " In such case, without any express declaration waiving 
 jurisdiction over the army to which this right of passage 
 has been granted, the sovereign who should attempt to 
 exercise it would certainly be considered as violating his 
 faith. By exercising it, the purpose for which the free 
 passage was granted would be defeated, and a portion of 
 the military force of a foreign independent nation would 
 be diverted from those national objects and duties to 
 which it was applicable, and would be withdrawn from 
 the control of the sovereign whose power and whose safety 
 might greatly depend on" retaining the exclusive com- 
 mand and disposition of this force. The grant of a free 
 passage, therefore, implies a waiver of all jurisdiction 
 over the troops during their passage, and permits the 
 foreign general to use that discipline and to inflict those 
 
punishments which the government of his army may 
 require." * 
 
 If an army marching through a friendly country would 
 thus be exempt from its civil and criminal jurisdiction, 
 a fortiori would an army invading an enemy's country 
 be exempt. The fact that war is waged between two 
 countries negatives the possibility of jurisdiction be- 
 ing exercised by the tribunals of the one country over 
 persons engaged in the military service of the other for 
 offences committed while in such service. Aside from 
 this want of jurisdiction, there would be something in- 
 congruous and absurd in permitting an officer or soldier 
 of an invading army to be tried by his enemy, whose 
 country he had invaded. 
 
 The fact that when the offence was committed, for 
 which the defendant was indicted, the State of Tennessee 
 was in the military occupation of the United States, with 
 a military governor at its head, appointed by the Presi- 
 dent, cannot alter this conclusion. Tennessee was one of 
 the insurgent States, forming the organization known as 
 the Confederate States, against w r hich the war was waged. 
 Her territory was enemy's country, and its character in 
 this respect was not changed until long afterwards. 
 
 *The same exemption from the civil and criminal jurisdiction of the 
 place is extended to an armed vessel of war entering the ports of a 
 friendly country by permission of its government, or seeking an asylum 
 therein in distress. She is accorded the rights of exterritoriality, and is 
 treated as if constituting a part of the territory of her sovereign. " She 
 constitutes," said the court in the same case, " a part of the military 
 force of her nation, acts under the immediate and direct command of the 
 sovereign, is employed by him in national objects. He has many and 
 powerful motives for preventing those objects from being defeated by 
 the interference of a foreign state. Such interference cannot take place 
 without affecting his power and his dignity. The implied license, there- 
 fore, under which such vessel enters a friendly port, may reasonably be 
 construed, and it seems to the court ought to be construed, as containing 
 an exemption from the jurisdiction of the sovereign within whose terri- 
 tory she claims the rights of hospitality." (7 Cranch, 144.) See also 
 Gushing on Belligerent Asylum, in Opinions of Att'ys-Gen. vol. vii, p. 
 122 ; Halleck, Int. Law, c. 7, sec. 25. 
 
 OT THE ^^ 
 
 r UFI7BRSIT7 
 
10 
 
 The doctrine of international law on the effect of mili- 
 tary occupation of enemy's territory upon its former laws 
 is well established. Though the late war was not be- 
 tween independent nations, but between different portions 
 of the same nation, yet having taken the proportions of 
 a territorial war, the insurgents having become formid- 
 able enough to be recognized as belligerents, the same 
 doctrine must be held to apply. The right to govern the 
 territory of the enemy during its military occupation is 
 one of the incidents of war, being a consequence of its 
 acquisition ; and the character and form of the govern- 
 ment to be established depend entirely upon the laws of 
 the conquering state or the orders of its military com- 
 mander. By such occupation the political relations be- 
 tween the people of the hostile country and their former 
 government or sovereign are for the time severed ; but the 
 municipal laws that is, the laws which regulate private 
 rights, enforce contracts, punish crime, and regulate the 
 transfer of property remain in full force, so far as they 
 affect the inhabitants of the country among themselves, 
 unless suspended or superseded by the conqueror. And 
 the tribunals by which the laws are enforced continue as 
 before, unless thus changed. In other words, the munici- 
 pal laws of the state, and their administration, remain 
 in full force so far as the inhabitants of the country are 
 concerned, unless changed by the occupying belligerent. 
 (Halleck, Int. Law, c. 33.) 
 
 This doctrine does not affect, in any respect, the exclu- 
 sive character of the jurisdiction of the military tribunals 
 over the officers and soldiers of the army of the United States 
 in Tennessee during the war ; for, as already said, they were 
 not subject to the laws nor amenable to the tribunals of 
 the hostile country. The laws of the State for the punish- 
 ment of crime were continued in force only for the pro- 
 tection and benefit of its own people. As respects them, 
 the same acts which constituted offences before the mili- 
 tary occupation constituted offences afterwards ; and the 
 
11 
 
 same tribunals, unless superseded by order of the military 
 commanders, continued to exercise their ordinary juris- 
 diction. 
 
 If these views be correct, the plea of the defendant of a 
 former conviction for the same offence by a court-martial 
 under the laws of the United States was not a proper plea 
 in the case. Such a plea admits the jurisdiction of the 
 criminal court to try the offence, if it were not for the 
 former conviction. Its inapplicability, however, will not 
 prevent our giving effect to the objection which the de- 
 fendant, in this irregular way, attempted to raise, that 
 the State court had no jurisdiction to try and punish him 
 for the offence alleged. The judgment and conviction in 
 the criminal court should have been set aside, and the 
 indictment quashed for want of jurisdiction. Their effect 
 was to defeat an act done, under the authority of the 
 United States, by a tribunal of officers appointed under 
 the law enacted for the government and regulation of the 
 army in time of war, and whilst that army was in a hos- 
 tile and conquered State. The judgment of that tribunal 
 at the time it was rendered, as well as the person of the 
 defendant, were beyond the control of the State of Ten- 
 nessee. The authority of the United States was then sov- 
 ereign and their jurisdiction exclusive. Nothing which 
 has since occurred has diminished that authority or im- 
 paired the efficacy of that judgment. 
 
 In thus holding, we do not call in question the correct- 
 ness of the general doctrine asserted by the Supreme 
 Court of Tennessee, that the same act may, in some in- 
 stances, be an offence against two governments, and that 
 the transgressor may be held liable to punishment by 
 both when the punishment is of such a character that it 
 can be twice inflicted, or by either of the two govern- 
 ments if the punishment, from its nature, can be only 
 once suffered. It may well be that the satisfaction which 
 the transgressor makes for the violated law of the United 
 States is no atonement for the violated law of Tennessee. 
 
12 
 
 But here there is no case presented for the application 
 of the doctrine. The laws of Tennessee with regard to 
 offences and their punishment, which were allowed to 
 remain in force during its military occupation, did not 
 apply to the defendant, as he was at the time a soldier in 
 the army of the United States and subject to the articles 
 of war. He was responsible for his conduct to the laws 
 of his own government only as enforced by the com- 
 mander of its army in that State, without whose consent 
 he could not even go beyond its lines. Had he been 
 caught by the forces of the enemy, after committing the 
 offence, he might have been subjected to a summary trial 
 and punishment by order of their commander; and there 
 would have been no just ground of complaint, for the 
 marauder and the assassin are not protected by any 
 usages of civilized warfare. But the courts of the State, 
 whose regular government was superseded, and whose 
 laws were tolerated from motives of convenience, were 
 without jurisdiction to deal with him. 
 
 This conclusion renders it unnecessary to consider the 
 question presented as to the effect to be given to the order 
 of the Circuit Court of the United States directing the 
 discharge of the defendant. It is sufficient to observe 
 that, by the act of Congress of February 5, 1867, the seve- 
 ral courts of the United States, and their judges, in their 
 respective jurisdictions, have, in addition to the authority 
 previously conferred, power to grant writs of habeas corpus 
 in all cases upon petition of any person restrained of his 
 liberty in violation of the Constitution or of any law of 
 the United States ; and if it appear, on the hearing had 
 upon the return of the writ, that the petitioner is thus 
 restrained, he must be forthwith discharged and set at 
 liberty. (Exparte Yerger, 8 Wall. 101.) 
 
 It follows, from the views expressed, that the judgment 
 of the Supreme Court of Tennessee must be reversed, and 
 the cause remanded with directions to discharge the de- 
 fendant from custody by the sheriff of Knox County on 
 
13 
 
 the indictment and conviction for murder in the State 
 court. But as the defendant was guilty of murder, as 
 clearly appears not only by the evidence in the record in 
 this case, but in the record of the proceedings of the 
 court-martial a murder committed, too, under circum- 
 stances of great atrocity and as he was convicted of the 
 crime by that court and sentenced to death, and it ap- 
 pears by his plea that said judgment was duly approved 
 and still remains without any action having been taken 
 upon it, he may be delivered up to the military authori- 
 ties of the United States, to be dealt with as required by 
 law. So ordered. 
 
12 
 
The exemption of an officer of the army of the United States, while 
 serving in the enemy's country during the late Civil War, from lia- 
 bility to an action in the courts of that country for injuries result- 
 ing from his military'orders or acts adjudged. 
 
 OF THE 
 
 UNITED STATES SUPREME COURT 
 
 IN 
 
 :DCTW -v-s. cronnsrsonsr, 
 
 Delivered at the October Term, 1879,* 
 BY 
 
 MR. JUSTICK KIKLD. 
 
 1. On the trial of an action at law, when the judges of the Circuit Court 
 
 are opposed in opinion on a material question of law, the opinion of 
 the presiding judge prevails; but the judgment rendered conforma- 
 bly thereto may, without regard to its amount, be reviewed on a 
 writ of error, upon their certificate stating such question. 
 
 2. An officer of the army of the United States, whilst serving in the 
 
 enemy's country during the rebellion, was not liable to an action in 
 the courts of that country for injuries resulting from his military 
 orders or acts; nor could he be required by a civil tribunal to justify 
 or explain them upon any allegation of the injured party that they 
 were not justified by military necessity. He was subject to the laws 
 of war, and amenable only to his own government. 
 
 3. When any portion of the insurgent States was in the occupation of 
 
 the forces of the United States during the rebellion, the municipal 
 laws, if not suspended or superseded, were generally administered 
 there by the ordinary tribunals for the protection and benefit of 
 persons not in the military service. Their continued enforcement 
 was not for the protection or the control of officers or soldiers of the 
 army. 
 
 4. A District Court of Louisiana continued in existence after the mili- 
 
 tary occupation of the State by the United States, and authorized 
 
 , _ -^^ ^^ ' 
 
 * Reported in 100 U.S. Reports, lf,s. 
 
 />,, 
 
by the commanding general to hear causes between parties sum- 
 moned a brigadier-general of the army of the United States to 
 answer a petition filed therein, setting forth that a military company 
 had, pursuant to his orders, seized and carried off certain personal 
 property of the plaintiff, who alleged that the seizure was unauthor- 
 ized by the necessities of war, or martial law, or by the superiors of 
 that officer. Judgment by default was rendered April 9, 1863, against 
 him for the value of the property. When sued in the Circuit Court 
 of the United States upon the judgment, he pleaded that the prop- 
 erty was taken to supply the army. Held, on demurrer to the plea, 
 that the State court had no jurisdiction of the cause of action, and 
 that the judgment was void. 
 
 Error to the Circuit Court of the United States for the 
 District of Maine. 
 
 Mr. Justice FIELD, after stating the facts, delivered the 
 opinion of the Court. 
 
 The defendant in the court below, the plaintiff in error 
 here, Neal Dow, was a brigadier-general in the army of 
 the United States during the late civil war, and in 1862 
 and 1863 was stationed in Louisiana in command of Forts 
 Jackson and St. Philip, on the Mississippi River, below 
 New Orleans. These forts surrendered to the forces of the 
 United States in April, 1862. The fleet under Admiral 
 Farragut had passed them and reached New Orleans on 
 the 25th of the month, and soon afterwards the city was 
 occupied by the forces of the United States under General 
 Butler. On taking possession of the city, the General 
 issued a proclamation, bearing date on the 1st of May, 
 1862, in which, among other things, he declared that until 
 the restoration of the authority of the United States the 
 city would be governed by martial law ; that all disorders, 
 disturbances of the peace, and crimes of an aggravated 
 nature, interfering with the forces or laws of the United 
 States, would " be referred to a military court for trial and 
 punishment;" that other misdemeanors would be subject 
 to the municipal authority, if it desired to act; and that 
 civil causes between parties would "be referred to the 
 
ordinary tribunals." Under this proclamation, the Sixth 
 District Court of the city and parish of New Orleans was 
 allowed to continue in existence, the judge having taken 
 the oath of allegiance to the United States. 
 
 In January, 1863, General Dow was sued in that court 
 by Bradish Johnson, the plaintiff in this case. The peti- 
 tion, which is the designation given in the system of pro- 
 cedure in Louisiana to the first pleading in a civil action, 
 set forth that the plaintiff was a citizen of New York, and 
 for several years had been the owner of a plantation and 
 slaves in Louisiana, on the Mississippi River, about forty- 
 three miles from New Orleans; that on the 6th of Sep- 
 tember, 1862, during his temporary absence, the steamer 
 "Avery," in charge of Captain Snell, of Company B of the 
 Thirteenth Maine Regiment, with a force under his com- 
 mand, had stopped at the plantation, and taken from it 
 twenty-five hogsheads of sugar; and that said force had 
 plundered the dwelling-house of the plantation and car- 
 ried off a silver pitcher, half a dozen silver knives, and 
 other table ware, the private property of the plaintiff, the 
 whole property taken amounting in value to $1,611.29; 
 that these acts of Captain Snell and of the officers and 
 soldiers under his command, which the petition charac- 
 terized as "illegal, wanton, oppressive, and unjustifiable," 
 were perpetrated under a verbal and secret order of Brig- 
 adier-General Neal Dow, then in the service of the United 
 States, and in command of Forts Jackson and St. Philip, 
 who, by his secret orders, which the petition declared 
 were " unauthorized by his superiors, or by any provision 
 of martial law, or by any requirements of necessity grow- 
 ing out of a state of war," wantonly abused his power 
 and inflicted upon the plaintiff the wrongs of which he 
 complained ; and therefore he prayed judgment against 
 the General for the value of the property. 
 
 To this suit General Dow, though personally served 
 with citation, made no appearance. He may have thought 
 that during the existence of the war, in a district where 
 
insurrection had recently been suppressed, and was only 
 kept from breaking out again by the presence of the 
 armed forces of the United States, he was not called upon 
 by any rule of law to answer to a civil tribunal for his 
 military orders, and satisfy it that they were authorized 
 by his superiors, or by the necessities growing out of a 
 state of war. He may have supposed that for his mili- 
 tary conduct he was responsible only to his military su- 
 periors and the government whose officer he was. 
 
 Be that as it may, or whatever other reason he may 
 have had, he made no response to the petition; he was 
 therefore defaulted. The Sixth District Court of the 
 parish of New Orleans did not seem to consider that it 
 was at all inconsistent with his duty as an officer in the 
 army of the United States to leave his post at the forts, 
 which guarded the passage of the Mississippi, nearly a 
 hundred miles distant, and attend upon its summons to 
 justify his military orders, or seek counsel and procure 
 evidence for his defence. Nor does it appear to have oc- 
 curred to the court that, if its jurisdiction over him was 
 recognized, there might spring up such a multitude of 
 suits as to keep the officers of the army stationed in its 
 district so busy that they would have little time to look after 
 the enemy and guard against his attacks. The default of 
 the General being entered, testimony was received, show- 
 ing that the articles mentioned were seized by a military 
 detachment sent by him and removed from the planta- 
 tion, and that their value amounted to $1,454.81. Judg- 
 ment was thereupon entered in favor of the plaintiff for 
 that sum, with interest and costs. It bears date April 9, 
 1863. 
 
 Upon this judgment t)ie present action was brought in 
 the Circuit Court of the United States for the District of 
 Maine. The declaration states the recovery of the judg- 
 ment mentioned, and makes profert of an authenticated 
 copy. To it the defendant pleaded the general issue, nul 
 tiel record, and three special pleas. The object of the 
 
special pleas is to show that the District Court had no 
 jurisdiction to render the judgment in question, for the 
 reason that at the time its district was a part of the country 
 in insurrection against the government of the United 
 States, and making war against it, and was only held in 
 subjection by its armed forces. It is not important to 
 state at length the averments of each of these pleas. It 
 will be sufficient to state the material parts of the second 
 plea and a single averment of the third. The second 
 plea, in substance, sets up that as early as February, 1861, 
 the State of Louisiana adopted an ordinance of secession, 
 by which she attempted to withdraw from the Union and 
 establish an independent government; that from that 
 time until after April 9, 1863, the date of the judgment 
 in question, she was in rebellion against the government 
 of the United States, making war against its authority; 
 that in consequence the military forces of the United 
 States engaged in suppressing the rebellion took forcible 
 possession of that portion of the State comprising the dis- 
 trict of the Sixth District Court of New Orleans, and held 
 military occupation of it until long after April 9, 1863, 
 during which time martial law was established there and 
 enforced; that the defendant was then a brigadier-general 
 in the military service of the United States, duly com- 
 missioned by the President, and acting in that State under 
 his orders and the articles of war; that by the general 
 order of the President of July 22, 1862, military com- 
 manders within the States of Virginia, South Carolina, 
 Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, 
 and Arkansas were directed, in an orderly manner, to seize 
 and use any property, real or personal, which might be 
 necessary or convenient for their several commands as 
 supplies, or for other military purposes ; that the defend- 
 ant, in the performance of his duty as a brigadier-general, 
 was in command of troops of the United States in Louis- 
 iana; and that the troops by his order seized from the 
 plaintiff, then a citizen of that State, certain chattels neces- 
 
sary and convenient for supplies for the army of the 
 United States, and other military purposes; and that for 
 that seizure the action was brought in the Sixth District 
 Court of New Orleans against him, in which the judg- 
 ment in question was rendered; but that the District 
 Court had no jurisdiction of the action or over the de- 
 fendant at its commencement, or at the rendition of the 
 judgment. 
 
 The third plea also avers that, for the purpose of sup- 
 pressing the rebellion and restoring the national author- 
 ity, the government of the United States, through its 
 proper officers, declared and maintained martial law in 
 Louisiana from May 1, 1862, until long after the 9th of 
 April, 1863, and deprived all the courts in that State, in- 
 cluding the Sixth District Court of New Orleans, of all 
 jurisdiction, except such as should be conferred on them 
 by authority of the officer commanding the forces of 
 the United States in that State, and that no jurisdiction 
 over persons in the military service of the United States, 
 for acts performed in the line of their duty, was by such 
 authority conferred upon that court. 
 
 To the first plea, that of nul tiel record, the plaintiff re- 
 plied that there was such a record, of which he prayed 
 inspection; and the record being produced, the court 
 found in his favor. To the special pleas the plaintiff re- 
 plied that the District Court had lawful jurisdiction over 
 parties and causes of action within its district at the time 
 and place mentioned, and to render the judgment in 
 question. To the replication the defendant demurred; 
 and upon the demurrer two questions arose, upon which 
 the judges in the Circuit Court were opposed in opinion, 
 namely : 1st, whether the, replication is a good and suffi- 
 cient reply to the special pleas; and, 2d, whether the Sixth 
 District Court, at the time and place mentioned, had ju- 
 risdiction of the parties and cause of action, to render the 
 judgment in question. 
 
 By statute, when the judges of the Circuit Court are 
 
opposed in opinion upon any question arising on the 
 trial of a cause, the opinion of the presiding justice pre- 
 vails, and judgment is entered in conformity with it. 
 Here the presiding justice was of opinion that the repli- 
 cation was a sufficient reply to the special pleas, and that 
 the District Court had jurisdiction over the parties and 
 the cause, and to render the judgment in question. 
 Accordingly, the plaintiff had final judgment upon the 
 demurrer, which was entered for $2.659.67 and costs; and 
 the defendant has brought the cause here by writ of error 
 on a certificate of division of opinion. 
 
 The important question thus presented for our deter- 
 mination is, whether an officer of the army of the United 
 States is liable to a civil action in the local tribunals for 
 injuries resulting from acts ordered by him in his mili- 
 tary character, whilst in the service of the United States, 
 in the enemy's country, upon an allegation of the injured 
 party that the acts were not justified by the necessities of 
 war. 
 
 But before proceeding to its consideration there is a 
 preliminary question of jurisdiction to be disposed of. 
 The act of February 16, 1875, " to facilite the disposition 
 of cases in the Supreme Court of the United States, and 
 for other purposes," provided, that whenever by the laws 
 then in force it was required that the matter in dispute 
 should exceed the sum or value of $2,000, exclusive of 
 costs, in order that the judgments and decrees of the Cir- 
 cuit Courts of the United States might be re-examined in 
 the Supreme Court, such judgments and decrees there- 
 after rendered should not be re-examined in the Supreme 
 Court, unless the matter in dispute should exceed the sum 
 or value of $5,000, exclusive of costs. (18 Stat. 315.) It 
 is therefore contended that a judgment cannot be re- 
 viewed by this court, upon a certificate of division of 
 opinion between the judges of the Circuit Court, if the 
 judgment be under $5,000; and the judgment in the pres- 
 ent case is under that amount. We do not think, how- 
 
8 
 
 ever, that this conclusion is warranted by the language 
 of the act in question. That act makes no change in the 
 previous laws, except as to amounts necessary to give the 
 court jurisdiction, when the amount is material. Where 
 before $2,000 was the sum required for that purpose, 
 afterwards $5,000 was the sum. But before that act ques- 
 tions arising in the progress of a trial could be brought 
 to this court for determination upon a certificate of divis- 
 ion of opinion, without reference to the amount in con- 
 troversy in the case. The original act of 1802, allowing 
 this mode of procedure, was always held to extend our 
 appellate jurisdiction to material questions of law arising 
 in all cases, criminal as well as civil, without regard to 
 the amount in controversy or the condition of the litiga- 
 tion. Its defect consisted in the delays it created by fre- 
 quently suspending proceedings in the midst of a trial. 
 To obviate this defect the first section of the act of June, 
 1872, was passed, requiring the case to proceed notwith- 
 standing the division, the opinion of the presiding justice 
 to prevail for the time being ; and this feature is retained 
 in the Revised Statutes. (Sees. 650, 652, 693.) The ben- 
 efit of the certificate can now r be had after judgment upon 
 a writ of error or appeal. That is the only material 
 change from the original law. We have no doubt, there- 
 fore, of our jurisdiction in this case. 
 
 This brings us to the consideration of the main ques- 
 tion involved, which we do not regard as at all difficult 
 of solution, when reference is had to the character of the 
 late war. That war, though not between independent 
 nations, but between different portions of the same nation, 
 was accompanied by the general incidents of an interna- 
 tional war. It was wag^d between people occupying dif- 
 ferent territories, separated from each other by well-defined 
 lines. It attained proportions seldom reached in the wars 
 of modern nations. Armies of greater magnitude and 
 more formidable in their equipments than any known in 
 the present century were put into the field by the contend- 
 
9 
 
 ing parties. The insurgent States united in an organiza- 
 tion known as the Confederate States, by which they acted 
 through a central authority, guiding their military move- 
 ments; and to them belligerent rights were accorded by 
 the Federal government. This was shown in the treat- 
 ment of captives as prisoners of war, the exchange of pris- 
 oners, the release of officers on parole, and in numerous 
 arrangements to mitigate as far as possible the inevitable 
 suffering and miseries attending the conflict. The people 
 of the loyal States on the one hand, and the' people of the 
 Confederate States on the other, thus became enemies to 
 each other, and were liable to be dealt with as such 
 without reference to their individual opinions or dispo- 
 sitions. Commercial intercourse and correspondence be- 
 tween them were prohibited, as well by express enact- 
 ments of Congress as by the accepted doctrines of 
 public law. The enforcement of contracts previously 
 made between them was suspended, partnerships were 
 dissolved, and the courts of each belligerent were closed 
 to the citizens of the other, and its territory was to the 
 other enemy's country. When, therefore, our armies 
 marched into the country which acknowledged the au- 
 thority of the Confederate government, that is, into the 
 enemy's country, their officers and soldiers were not sub- 
 ject to its laws, nor amenable to its tribunals for their acts. 
 They were subject only to their own government, and only 
 by its laws, administered by its authority, could they be 
 called to account. As was observed in the recent case of 
 Coleman v. Tennessee, it is well settled that a foreign army, 
 permitted to march through a friendly country, or to be 
 stationed in it by authority of its sovereign or govern- 
 ment, is exempt from its civil and criminal jurisdiction. 
 The law was so stated in the celebrated case of The Ex- 
 change, reported in the 7th of Cranch. Much more must 
 this exemption prevail where a hostile army invades an 
 enemy's country. There would be something singularly 
 absurd in permitting an officer or soldier of an invading 
 
10 
 
 army to be tried by his enemy, whose country it had in- 
 vaded. The same reasons for his exemption from criminal 
 prosecution apply to civil proceedings. There would be 
 as much incongruity, and as little likelihood of freedom 
 from the irritations of the war, in civil as in criminal pro- 
 ceedings prosecuted during its continuance. In both in- 
 stances, from the very nature of war, the tribunals of the 
 enemy must be without jurisdiction to sit in judgment 
 upon the military conduct of the officers and soldiers of 
 the invading army. It is difficult to reason upon a propo- 
 sition so manifest ; its correctness is evident upon its bare 
 announcement, and no additional force can be given to it 
 by any amount of statement as to the proper conduct of 
 war. It is manifest that if officers or soldiers of the army 
 could be required to leave their posts and troops, upon 
 the summons of every local tribunal, on pain of a judg- 
 ment by default against them, which at the termination 
 of hostilities could be enforced by suit in their own States, 
 the efficiency of the army as a hostile force would be ut- 
 terly destroyed. Nor can it make any difference with 
 what denunciatory epithets the complaining party may 
 characterize their conduct. If such epithets could confer 
 jurisdiction, they would always be supplied in every 
 variety of form. An inhabitant of a bombarded city 
 would have little hesitation in declaring the bombardment 
 unnecessary and cruel. Would it be pretended that he 
 could call the commanding general, who ordered it, be- 
 fore a local tribunal to show its necessity or be mulcted 
 in damages ? The owner of supplies seized or property 
 destroyed would have no difficulty, as human nature is 
 constituted, in believing and affirming that the seizure 
 and destruction were wanton and needless. All this is 
 too plain for discussion, and will be readily admitted. 
 
 Nor is the position of the invading belligerent affected, 
 or his relation to the local tribunals changed, by his tem- 
 porary occupation and domination of any portion of the 
 enemy's country. As a necessary consequence of such 
 
11 
 
 occupation and domination, the political relations of its 
 people to their former government are, for the time, sev- 
 ered. But for their protection and benefit, and the pro- 
 tection and benefit of others not in the military service, 
 or, in other words, in order that the ordinary pursuits 
 and business of society may not be unnecessarily deranged, 
 the municipal laws that is, such as affect private rights 
 of persons and property, and provide for the punishment 
 of crime are generally allowed to continue in force, and 
 to be administered by the ordinary tribu'nals as they were 
 administered before the occupation. They are considered 
 as continuing, unless suspended or superseded by the oc- 
 cupying belligerent. But their continued enforcement is 
 not for the protection or control of the army, or its offi- 
 cers or soldiers. These remain subject to the laws of war, 
 and are responsible for their conduct only to their own 
 government, and the tribunals by which those laws are 
 administered. If guilty of wanton cruelty to persons, or 
 of unnecessary spoliation of property, or of other acts not 
 authorized by the laws of war, they may be tried and 
 punished by the military tribunals. They are amenable 
 to no other tribunal, except that of public opinion, which, 
 it is to be hoped, will always brand with infamy all who 
 authorize or sanction acts of cruelty and oppression. 
 
 If now we apply the views thus expressed to the case 
 at bar, there will be no difficulty in disposing of it. The 
 condition of New Orleans and of the district connected 
 with it, at the time of the seizure of the property of the 
 plaintiff and the entry of the judgment against Dow, was 
 not that of a country restored to its nominal relations to 
 the Union, by the fact that they had been captured by our 
 forces, and were held in subjection. A feeling of intense 
 hostility against the government of the Union prevailed, 
 as before, with the people, which was ready to break out 
 into insurrection upon the appearance of the enemy in 
 force, or upon the withdrawal of our troops. The country 
 was under martial law; and its armed occupation gave 
 
12 
 
 no jurisdiction to the civil tribunals over the officers and 
 soldiers of the occupying army. They were not to be 
 harassed and mulcted at the complaint of any person ag- 
 grieved by their action. The jurisdiction which the District 
 Court was authorized to exercise over civil causes between 
 parties, by the proclamation of General Butler, did not 
 extend to cases against them. The third special plea 
 alleges that the court was deprived by the general govern- 
 ment of all jurisdiction except such as was conferred by 
 the commanding general, and that no jurisdiction over 
 persons in the military service for acts performed in the 
 line of their duty was ever thus conferred upon it. It 
 was not for their control in any way, or the settlement of 
 complaints against them, that the court was allowed to 
 continue in existence. It was, as already stated, for the 
 protection and benefit of the inhabitants of the conquered 
 country and others there not engaged in the military 
 service. 
 
 If private property there was taken by an officer or a 
 soldier of the occupying army, acting in his military 
 character, when, by the laws of war, or the proclamation 
 of the commanding general, it should have been exempt 
 from seizure, the owner could have complained to that 
 commander, who might have ordered restitution, or sent 
 the offending party before a military tribunal, as circum- 
 stances might have required, or he could have had re- 
 course to the government for redress. But there could be 
 no doubt of the right of the army to appropriate any 
 property there, although belonging to private individuals, 
 which was necessary for its support or convenient for its 
 use. This was a belligerent right, which was not ex- 
 tinguished by the occupation of the country, although the 
 necessity for its exercise was thereby lessened. However 
 exempt from seizure on other grounds private property 
 there may have been, it was always subject to be appro- 
 priated, when required by the necessities or convenience 
 of the army, though the owner of property taken in such 
 
13 
 
 case may have had a just claim against the government 
 for indemnity. 
 
 The case of Elphinstone v. Bedreechund is an authority, if 
 any were needed, that a municipal court has no jurisdic- 
 tion to adjudge upon the validity of a hostile seizure of 
 property; that is, a seizure made in the exercise of a bel- 
 ligerent right. There it appeared that a city of India 
 had been captured by the British forces, and a provisional 
 government established, which subsequently held undis- 
 turbed possession of the place. Several months after its 
 occupation, the members of the provisional government 
 seized the private property of a native, under the belief 
 that it was public property intrusted to his care by the 
 hostile sovereign. The native had been refused the 
 benefit of the articles of capitulation of a fortress, of which 
 he was governor, but had been permitted to reside under 
 military surveillance in his own house in the city, where 
 the seizure was made. At the time there were no hostili- 
 ties in the immediate neighborhood, and the civil courts 
 were sitting for the administration of justice; but the war 
 was not at an end throughout the country, and there was 
 a feeling of great hostility on the part of the people of the 
 place, which was only prevented from breaking out into 
 insurrection by the presence of an armed force. In these 
 respects the position of the place was similar to that of 
 New Orleans and the adjacent country under the com- 
 mand of General Butler. The property seized consisted 
 of gold coin, jewels, and shawls; and the owner having 
 died, an action for their value was brought by his execu- 
 tor against the members of the provisional government 
 who ordered the seizure, and judgment was rendered 
 against them in the Supreme Court of Bombay. That 
 court appeared to be controlled in its decision by the fact 
 that for some months before the seizure the city had been in 
 the undisturbed possession of the provisional government, 
 and that civil courts, under its authority, were sitting 
 there for the administration of justice. But on appeal to 
 
14 
 
 the Privy Council the judgment was reversed. "We 
 think," said Lord Tenterden, speaking for the Council, 
 "the proper character of the transaction was that of a 
 hostile seizure made, if not flagrante, yet nondum cessante 
 hello, regard being had both to the time, the place, and 
 the person; and, consequently, that the municipal court 
 had no jurisdiction to adjudge upon the subject, but that, 
 if anything was done amiss, recourse could only be had 
 to the government for redress." (1 Kn. 361.) Here, the 
 special pleas allege that the articles of property taken by 
 the military detachment under General Dow were seized 
 by his order, as necessary and convenient supplies for the 
 occupying army. It was a hostile seizure, as much so as 
 that of the property in the case cited, being made, like 
 that one, in the exercise of a belligerent right, upon the 
 propriety or necessity of which the municipal court had no 
 authority to adjudge. 
 
 This doctrine of non-liability to the tribunals of the 
 invaded country for acts of warfare is as applicable to 
 members of the Confederate army, when in Pennsylvania, 
 as to members of the national army when in the insur- 
 gent States. The officers or soldiers of neither army could 
 be called to account civilly or criminally in those tribu- 
 nals for such acts, whether those acts resulted in the de- 
 struction of property or the destruction of life; nor could 
 they be required by those tribunals to explain or justify 
 their conduct upon any averment of the injured party 
 that the acts complained of were unauthorized by the 
 necessities of war. It follows that, in our judgment, the 
 District Court of New Orleans was without jurisdiction 
 to render the judgment in question, and the special pleas 
 in this case constituted a-. perfect answer to the declara- 
 tion. See Coleman v. Tennessee, (97 U. S. 509 ; ) Ford v. 
 Surget, (Id. 594;) also LeCaux v. Eden, (2 Doug. 594;) 
 Lamar v. Browne, (92 U. S. 187;) and Coolidge v. Guthrie, 
 (2 Amer. Law Reg. N. S. 22.) 
 
 We fully agree with the presiding justice of the Circuit 
 
15 
 
 Court in the doctrine that the military should always be 
 kept in subjection to the laws of the country to which it 
 belongs, and that he is no friend to the Republic who ad- 
 vocates the contrary, The established principle of every 
 free people is, that the law shall alone govern; and to it 
 the military must always yield. We do not controvert 
 the doctrine of Mitchell v. Harmony, reported in the 13th 
 of Howard; on the contrary, we approve it. But it has 
 no application to the case at bar. The trading for which 
 the seizure was there made had been permitted by the 
 Executive Department of our government. The question 
 here is, What is the law which governs an army invading 
 an enemy's country? It is not the civil law of the in- 
 vaded country ; it is not the civil law of the conquering 
 country : it is military law the law of war and its su- 
 premacy for the protection of the officers and soldiers of 
 the army, when in service in the field in the enemy's 
 country, is as essential to the efficiency of the army as the 
 supremacy of the civil law at home, and, in time of peace, 
 is essential to the preservation of liberty. 
 
 Our decision upon the questions certified to us is, that 
 the replication is not a good and sufficient reply to the 
 special pleas; and that the Sixth District Court of New 
 Orleans, at the time and place mentioned, had not juris- 
 diction of the parties and cause of action to render the 
 judgment in question. The judgment of the Circuit Court 
 must, therefore, be reversed, and the cause remanded with 
 directions to that court to enter final judgment for the 
 defendant on the demurrer to the replications; and it is 
 
 So ordered. 
 
The United States not responsible for injury or de- 
 struction of private property caused by their military 
 operations during the late Civil War. 
 
 OPINION 
 
 OF THE 
 
 UNITED STATES SUPREME COURT 
 
 IN 
 
 UNITED STATES vs. PACIFIC RAILROAD 
 
 AND 
 
 PACIFIC KAILROAD vs. UNITED STATES. 
 
 Delivered at October Term, 1886,* 
 BY 
 
 MR. JUSTICK 
 
 The United States are not responsible for the injury or destruction of 
 private property caused by their military operations during the late 
 civil war ; nor are private parties chargeable for works constructed 
 on their property by the United States to facilitate such operations. 
 
 Accordingly, where bridges on the line of a railroad were destroyed dur- 
 ing the civil war by either of the contending forces, their subsequent 
 rebuilding by the United States as a measure of military necessity, 
 without the request of, or any contract with, the owner of the rail- 
 road, imposes no liability upon such owner. 
 
 Mr. Justice FIELD delivered the opinion of the Court. 
 
 The Pacific Railroad Company, the claimant in this 
 case, is a corporation created under the laws of Missouri, 
 and is frequently designated as the Pacific Railroad of 
 that State, to distinguish it from the Central Pacific Rail- 
 road Company incorporated under the laws of California, 
 and the Union Pacific Railroad Company incorporated 
 under an act of Congress, each of which is sometimes re- 
 ferred to as the Pacific Railroad Company. 
 
 * Reported in 120 U. S. Reports, 227. 
 
From the 14th of August, 1867, to the 22d of July, 
 1872, it rendered services by the transportation of pas- 
 sengers and freight, for which the United States are in- 
 debted to it in the sum of $136,196.98, unless they are 
 entitled to offset the cost of labor and materials alleged 
 to have been furnished by them, at its request, for the 
 construction of certain bridges on the line of its road. 
 The extent and value of the services rendered are not 
 disputed. It is only the offset or charge for the bridges 
 which is in controversy; and that charge arose in this 
 wise : During the civil war, the State of Missouri was the 
 theatre of active military operations. It was on several 
 occasions invaded by Confederate forces, and between 
 them and the soldiers of the Union conflicts were frequent 
 and sanguinary. The people of the State were divided 
 in their allegiance, and the country was ravaged by 
 guerrilla bands. The railroads of the State, as a matter 
 of course, were damaged by the contending forces; as 
 each deemed the destruction of that means of transporta- 
 tion necessary to defeat or embarrass the movements of 
 the other. In October, 1864, Sterling Price, a noted Con- 
 federate officer, at the head of a large force, invaded 
 the State and advanced rapidly towards St. Louis, ap- 
 proaching to within a few days' march of the city. 
 During this invasion, thirteen bridges upon the main 
 line and southwestern branch of the company's road 
 were destroyed. General Rosecrans was in command of 
 the Federal forces in the State, and some of the bridges 
 were destroyed by his orders, as a military necessity, to 
 prevent the advance of the enemy. The record does not 
 state by whom the others were destroyed ; but their de- 
 struction having taken place during the invasion, it seems 
 to have been taken for granted that it was caused by the 
 Confederate forces, and this conclusion was evidently 
 correct. All the bridges except four were rebuilt by the 
 company. These four were rebuilt by the government, 
 and it is their cost which the government seeks to offset 
 
against the demand of the company. Two of the four 
 (one over the Osage River and one over the Moreau River) 
 were destroyed by order of the commander of the Fed- 
 eral forces. The other two, which were over the Mara- 
 mec River, it is presumed, were destroyed by the Confed- 
 erate forces. 
 
 Soon after the destruction of the bridges, and during 
 the same month, General Rosecrans summoned to an in- 
 formal conference, in St. Louis, several gentlemen regarded 
 as proper representatives of the railroad company, being 
 its president, the superintendent, and the engineer of the 
 road, and several of the directors. The court below 
 makes the following finding as to what there occurred : 
 
 " By General Rosecrans it was stated that the immedi- 
 ate rebuilding of the bridges was a military necessity ; 
 that he should expect and require the company to do all 
 in their power to put the roads in working order at the 
 earliest possible moment; and that he intended to have 
 what work they did not do done by the government, and 
 withhold from the freight earnings of the road a sum 
 sufficient to repay the government for such outlays as in 
 law and fact it should be found entitled to have repaid. 
 
 "The gentlemen present assured General Rosecrans 
 that they would do all in their power to rebuild the 
 bridges and put the roads in working order at the earliest 
 moment, but they at the same time represented that 
 several of the bridges, as they believed, had been destroyed 
 by the proper military authority of the United States, and 
 that in such cases the government was properly respon- 
 sible for the loss, and should replace the bridges. Those 
 which the public enemy had destroyed they conceded 
 that the company should replace. 
 
 " General Rosecrans replied in substance: ' Gentlemen t 
 the question of the liability of the government for re- 
 pairing damages to this road is one of both law and fact, 
 and it is too early now to undertake the investigation of 
 that question in this stirring time. I 
 
 i^ViS-**^ 
 
 'UNIVERSITY: 
 
whether all the damages which you say the government 
 should be responsible for, will be found liable to be laid 
 to the charge of the government. Nevertheless, what- 
 ever is fair and right I should like to see done. You 
 tell me now, and I have been informed by some of your 
 representatives individually, that the company's means 
 are insufficient to make these large repairs and make 
 them promptly. Therefore, I want to say to you that, 
 as a military necessity, we must have the work done, and 
 shall be glad to have the company do everything it can> 
 and I will undertake to have the remainder done, and 
 we will reserve out of the freights money enough to make 
 the government good for that to which it shall be found 
 to be entitled for rebuilding any or all of the bridges, and 
 we will return the freights to you or settle with you on 
 principles of law and equity.' 
 
 "The gentlemen interested in the company reiterated 
 their view of the case, that the company should pay for 
 bridges destroyed by the public enemy, and that the 
 government should replace at its own cost the bridges 
 destroyed by its own military authorities." 
 
 The court also finds that these mutual representations 
 and assurances were not intended or understood on either 
 side to form a contract or agreement binding on the gov- 
 ernment or the company; that no formal action upon 
 them was taken by the board of directors; and that there 
 was no proof that they were ever communicated to the 
 directors, except as may be inferred from subsequent facts 
 and circumstances mentioned; but that the company,- 
 through its directors and officers, promptly exerted itself, 
 to its utmost power, to restore the roads to running order, 
 and to that end co-operated .with the government. 
 
 At the same time, General Rosecrans informed the 
 Secretary of War that the rebuilding of the bridges was 
 " essential, and a great military necessity " in the defence 
 of the State, and requested that Colonel Myers should be 
 authorized " to have them built at once, the United States 
 
to be reimbursed the cost out of freight on the road." 
 The Secretary referred the matter to the Quartermaster- 
 General, who recommended that General McCallum, 
 Superintendent of Military Roads, be directed to take the 
 necessary measures immediately for that purpose. The 
 Secretary approved the recommendation, and General 
 McCallum was thereupon ordered to cause the bridges to 
 be rebuilt by the quickest and surest means possible. It 
 does not appear that the company had any notice of these 
 communications or of the order. 
 
 The bridge over the Osage River was destroyed on the 
 5th of October, 1864, by order of the officer commanding 
 the central district of Missouri, acting under instructions 
 from General Rosecrans to " use every means in his power 
 to prevent the advance of the enemy." The court finds 
 that the destruction was ordered for that purpose, and that 
 the exigency appeared to the officer, and, in fact, was, of 
 the gravest character, and an imperative military neces- 
 sity. The government rebuilt the bridge, at an expense 
 of $96,152.65 ; and this sum it seeks to charge against the 
 company. 
 
 The bridge across the Moreau was also destroyed by 
 command of the same officer, under the same military 
 exigency. The company commenced its reconstruction, 
 but, before it was completed, the work was washed away 
 by a freshet in the river. The government afterwards 
 rebuilt it at an expense of $30,801 ; and this sum it also 
 seeks to charge against the company. 
 
 The two bridges across the Maramec were destroyed 
 during the invasion, as already stated, but not by the 
 forces of the United States. They were, however, rebuilt 
 by the government as a military necessity, at an expense 
 of $54,595.24; and this sum, also, it seeks to charge 
 against the company. The Court of Claims allowed the 
 cost of three of the bridges to be charged against the 
 company, but rejected the charge for the fourth the one 
 over the Osage River. The United States and the claim- 
 
ant both appealed from its judgment; the claimant, be- 
 cause the cost of the three bridges was allowed ; the United 
 States, because the charge for one of the four was disal- 
 lowed. 
 
 The cost of the four bridges rebuilt by the government 
 amounted to $181,548.89. The question presented is, 
 whether the company is chargeable with their cost, assum- 
 ing that there was no promise on its part, express or im- 
 plied, to pay for them. That there was no express promise 
 is clear. The representations and assurances at the con- 
 ference called by General Rosecrans to urge the rebuild- 
 ing of the bridges were not intended or understood to 
 constitute any contract; and it is so found, as above stated, 
 by the court below. They were rebuilt by the govern- 
 ment as a military necessity to enable the Federal forces 
 to carry on military operations, and not on any request 
 of or contract with the company. As to the two bridges 
 destroyed by the Federal forces, some of the officers of 
 the company at that conference insisted that they should 
 be rebuilt by the government without charge to the com- 
 pany, and, though they appeared to consider that those 
 destroyed by the enemy should be rebuilt by the com- 
 pany, there was no action of the board of directors on the 
 subject. What was said by them was merely an expres- 
 sion of their individual opinions, which were not even 
 communicated to the board. Nor can any such promise 
 be implied from the letter of the president of the com- 
 pany to the Quartermaster-General in November, subse- 
 quent to the destruction of the bridges, informing him 
 that the delay of the War Department in rebuilding them 
 had prompted the company to "unusual resources;" that 
 it was constructing the bridges over the Gasconade and 
 the Moreau Rivers, and that the only bridge on the main 
 line to be replaced by the government was the one 
 over the Osage River, the company having replaced 
 all the smaller, and was then replacing all the larger, 
 ones. The letter only imparts information as to the 
 
work done and to be done in rebuilding the bridges 
 on the main line. It contains no promise, as the court 
 below seems to have thought, that, if the government 
 would rebuild the bridge over the Osage River, it should 
 be reimbursed for any other it might rebuild on the main 
 line of the company. Nor do we think that any promise 
 can be implied from the fact that the company resumed 
 the management and operation of the road after the 
 bridges were rebuilt; but on that point we will speak 
 hereafter. Assuming, for the present, that there was no 
 such implication, we are clear that no obligation rests 
 upon the company to pay for work done, not at its re- 
 quest or for its benefit, but solely to enable the govern- 
 ment to carry on its military operations. 
 
 It has been held by this court in repeated instances 
 that, though the late war was not between independent 
 nations, yet, as it was between the people of different 
 sections of the country, and the insurgents were so thor- 
 oughly organized and formidable as to necessitate their 
 recognition as belligerents, the usual incidents of a war 
 between independent nations ensued. The rules of war, 
 as recognized by the public law of civilized nations, be- 
 came applicable to the contending forces. Their adoption 
 was seen in the exchange of prisoners, the release of offi- 
 cers on parole, the recognition of flags of truce, and other 
 arrangements designed to mitigate the rigors of warfare. 
 The inhabitants of the Confederate States on the one 
 hand, and of the States which adhered to the Union on the 
 other, became enemies, and subject to be treated as such, 
 without regard to their individual opinions or disposi- 
 tions; while during its continuance commercial inter- 
 course between them was forbidden, contracts between 
 them were suspended, and the courts of each were closed 
 to the citizens of the other. (Brown v. Hiatts, 15 Wall. 
 177, 184.) 
 
 The war, whether considered with Reference to the 
 number of troops in the field, the extent of military opcr- 
 
8 
 
 ations, and the number and character of the engage- 
 ments, attained proportions unequalled in the history of 
 the present century. More than a million of men, were 
 in the armies on each side. The injury and destruction 
 of private property caused by their operations, and by 
 measures necessary for their safety and efficiency, were 
 almost beyond calculation. For all injuries and destruc- 
 tion which followed necessarily from these causes no com- 
 pensation could -be claimed from the government. By 
 the well-settled doctrines of public law it was not respon- 
 sible for them. The destruction or injury of private prop- 
 erty in battle, or in the bombardment of cities and towns, 
 and in many other ways in the war, had to be borne by 
 the sufferers alone as one of its consequences. Whatever 
 would embarrass or impede the advance of the enemy, as 
 the breaking up of roads or the burning of bridges, or 
 would cripple and defeat him, as destroying his means of 
 subsistence, were lawfully ordered by the commanding 
 general. Indeed, it was his imperative duty to direct their 
 destruction. The necessities of the war called for and 
 justified this. The safety of the state in such cases over- 
 rides all considerations of private loss. Salus populi is 
 then, in truth, suprema lex. 
 
 These views are sustained in treatises of text-writers, by 
 the action of Congress, and by the language of judicial 
 tribunals. (Respublica v. Sparhawk, 1 Dall. 357; Parham 
 v. The Justices, 9 Geo. 341 ; Taylor v. Nashville & Chatta- 
 nooga Railroad, 6 Coldwell, 646; Mayor v. Lord, 18 Wend. 
 126.) 
 
 Vattel, in his Law of Nations, speaks of damages sus- 
 tained by individuals in war as of two kinds those done 
 by the state and those done by the enemy. And after 
 mentioning those done 'by the state deliberately and 
 by way of precaution, as when a field, a house, or a 
 garden, belonging to a private person, is taken for the 
 purpose of erecting on the spot a town rampart or other 
 piece of fortification ; or when his standing corn or his 
 
9 
 
 storehouses are destroyed to prevent their being of use to 
 the enemy ; and stating that such damages are to be made 
 good to the individual, who should bear only his quota of 
 the loss, he says : " But there are other damages, caused 
 by inevitable necessity, as, for instance, the destruction 
 caused by the artillery in retaking a town from the 
 enemy. These are merely accidents ; they are misfort- 
 unes which chance deals out to the proprietors on whom 
 they happen to fall. The sovereign, indeed, ought to 
 show an equitable regard for the sufferers, if the sit- 
 uation of his affairs will admit of it ; but no action 
 lies against the state for misfortunes of this nature for 
 losses which she has occasioned, not wilfully, but through 
 necessity and by mere accident, in the exertion of her 
 rights. The same may be said of damages caused by the 
 enemy. All the subjects are exposed to such damages ; 
 and woe to him on whom they fall ! The members of a 
 society may well encounter such risk of property, since 
 they encounter a similar risk of life itself. Were the 
 state strictly to indemnify all those whose property is in- 
 jured in this manner, the public finances would soon be 
 exhausted, and every individual in the state would be 
 obliged to contribute his share in due proportion, a thing 
 utterly impracticable."* (Book III, c. 15, 232.) 
 
 * Mais d'autres dommages sont causes par uue n^cessite* inevitable : 
 tels sont, par example, les ravages de 1'artillerie, dans une ville que 1'on 
 reprend sur 1'ennemi. Ceux-ci sont des accidents, des maux de la for- 
 tune, pour les proprie"taires sur qui ils tombent. Le souverain doit e"quit- 
 ablement y avoir e"gard, si I'e'tat de ses affaires le lui permet ; mais on 
 n'a point d'action centre 1'Etat pour des malheurs de cette nature, pour 
 des pertes qu'il n'a point cause"es librement, mais par n^cessite" et par 
 accident, en usaut de ses droits. J'en dis autant des dommages causes 
 par 1'ennemi. Tous les sujets sont exposes a ces dommages; malheur a 
 celui sur qui ils tombent! On peut bien, dans une socie'te', courir ce 
 risque pour les biens, puisqu'on le court pour la vie. Si 1'Etat devait a 
 la rigueur de'dommager tous ceux qui perdent de cette maniere, les 
 finances publiques seraient bientot e"puisees ; il faudrait que chacun con- 
 tribuat du sien, dans une juste proportion ; ce qui serai t impracticable. 
 (Vattel Droit des Gens, Liv. 3, c. 15, | 232 ; Vol. 3, p. 115, ed Pradier- 
 Fodere", Paris, 1863.) 
 
10 
 
 Three cases in Congress, one before the House of Rep- 
 resentatives in 1797, and two before the Senate, one in 
 1822 and one in 1872, illustrate this doctrine. In the 
 first of these a Mr. Frothingham, of Massachusetts, pre- 
 sented a petition to the House of Representatives, asking 
 compensation for a dwelling-house, the property of his 
 mother, burned at Charlestown, in March, 1776, by order 
 of General Sullivan, then commanding the American 
 troops at that place. The Committee on Claims, to whom 
 it was referred, made a report that they found that the 
 house for which compensation was sought was, with seve- 
 ral other buildings in the vicinity, at that time in posses- 
 sion of the British troops; and that, for the purpose of 
 dislodging them, the general sent a party of troops with 
 orders to set fire to the buildings, which was done accord- 
 ingly ; and that they apprehended that the loss of houses 
 and other sufferings by the general ravages of war had 
 never been compensated by this or any other government; 
 that in the history of our Revolution, sundry decisions of 
 Congress against claims of this nature might be found ; 
 and that the claim presented rested upon the same basis 
 with all others where sufferings arose from the ravages of 
 war. As the government had not adopted a general rule 
 to compensate individuals who had suffered in a similar 
 manner, the committee were of opinion that the prayer of 
 the petitioner could not be granted; and no further action 
 was had upon the claim. (American State Papers, Class 
 XIV, Claims, p. 199.) 
 
 In the second of the cases referred to, a Mr. Villiers, of 
 Louisiana, presented a petition to the House of Represen- 
 tatives, stating that during the invasion of the British in 
 1814-'15, after the enemy had landed near the city of New 
 Orleans, in order to prevent him from bringing up his 
 cannon and other ordnance to the city, General Morgan, 
 commanding the Louisiana militia, caused the levee to be 
 cut through, at or near the plantation of the petitioner, 
 whereby the greater part of his plantation was inundated, 
 
11 
 
 and remained so till after the departure of the invading 
 army from the State; that in consequence the petitioner 
 had suffered great losses in the destruction of his sugar 
 cane, cane plants, and in the expenses of repairing the 
 levee, appraised at $19,250; for which he prayed compen- 
 sation. The Committee on Claims, to whom the petition 
 was referred, recommended that its prayer should not be 
 granted, on the ground that the losses were sustained in 
 the necessary operations of war, for which the United 
 States were not liable; and their recommendation was 
 adopted. (American State Papers, Class XIV, Claims, p. 
 835; Annals of Congress, 17th Cong. 1st Sess. Part 1, p. 
 311.) 
 
 The third of the cases referred to is that of J. Milton 
 Best, which was much discussed in the Senate. His claim 
 was for the value of a dwelling-house and contents, de- 
 stroyed by order of the officer commanding the Union 
 forces in defence of the city of Paducah, Kentucky, in 
 March, 1864. The city being attacked by the Confeder- 
 ates in force, the Federal troops, numbering seven hun- 
 dred, were withdrawn into Fort Anderson. The claim- 
 ant's house, which was about one hundred and fifty yards 
 from the fort, was taken possession of by the sharpshoot- 
 ers of the enemy, who did great execution picking off 
 men at the guns within the defences. They were driven 
 from the house by shells from the fort and gunboats, and 
 late that night the Confederates retired from their assault 
 without success. They appeared with reinforcements 
 the next morning, and the Union officer, regarding his 
 command in great peril, his ammunition being nearly 
 exhausted, gave orders for the destruction of all houses 
 within musket range of the fort. The claimant's loyalty 
 was unquestioned. The officers in command at the post 
 from time to time during the war testified to his reliabil- 
 ity and the effective aid he rendered the Union cause. 
 
 The Senate Committee on Claims reported the case as 
 one presenting the " simple question of who shall pay for 
 
12 
 
 the destruction of a loyal citizen's property, destroyed by 
 the order of a commanding officer to save his imperilled 
 army, at the claimant's home, a place never in pos- 
 session of the enemy, and in a non-seceding State." Upon 
 this question they say : " It appears to your committee 
 that the facts establish a just claim against the govern- 
 ment for private property taken and destroyed to prevent 
 a greater destruction of its own property and the mas- 
 sacre of its troops." 
 
 They reported that " the injuries to the claimant's house, 
 by shelling out the rebels in the battle of the 25th of 
 March [the day preceding the destruction of the prop- 
 erty,] may be regarded as a casualty by the general rav- 
 ages of war, which might properly be deducted from the 
 amount of loss proved by claimant," and they made what 
 they deemed a proper deduction on that account in the 
 bill presented by them for the payment of the damages. 
 The bill was intended to cover the value of his property 
 at the time it was burned to prevent its use by the rein- 
 forced enemy on the following day. In the debate which 
 followed it was contended by advocates of the bill that, 
 while the damage by shelling from our own fort during 
 the battle came within the ravages of war, the subsequent 
 burning of the house to prevent its being used by the 
 sharpshooters of the enemy was a taking by the govern- 
 ment of private property for public use, for which com- 
 pensation should be made. 
 
 The bill 'passed in the Senate, January 5, 1871, but was 
 not acted upon by the House during that Congress. It 
 again passed in the Senate, April 8, 1872, and in the 
 House, May 18, 1872. It was vetoed by the President, 
 June 1, 1872. In his message to the Senate the President, 
 after speaking of the cfaim as one for compensation on 
 account of the ravages of war, and observing that its pay- 
 ment would invite the presentation of demands for very 
 large sums of money against the government for neces- 
 sary and unavoidable destruction of property by the 
 
13 
 
 army, said : " It is a general principle of both international 
 and municipal law that all property is held subject, not 
 only to be taken by the government for public uses, in 
 which case, under the Constitution of the United States, 
 the owner is entitled to just compensation, but also sub- 
 iect to be temporarily occupied, or even actually destroyed, 
 in times of great public danger, and when the public 
 safety demands it; and in this latter case governments 
 do not admit a legal obligation on their part to compen- 
 sate the owner. The temporary occupation of, injuries 
 to, and destruction of property caused by actual and ne- 
 cessary military operations is generally considered to fall 
 within the last-mentioned principle. If a government 
 makes compensation under such circumstances, it is a 
 matter of bounty rather than of strict legal right." (Cong. 
 Globe, 42d Cong. 2d Sess. Part V, p. 4155.) 
 
 The message was referred to the Committee on Claims, 
 and on the 7th of February, 1873, it was reported back 
 with a recommendation that the bill be passed, the objec- 
 tion of the President to the contrary notwithstanding. 
 On the 24th of the same month the bill was reached on 
 the calendar, and was passed over upon objection. No 
 further action was ever taken upon it in the Senate, and 
 consequently it never reached the House. 
 
 The claim has been repeatedly presented to Congress 
 since, but has never been considered by either House. 
 The principle that, for injuries to or destruction of pri- 
 vate property in necessary military operations during the 
 civil war, the government is not responsible is thus con- 
 sidered established. Compensation has been made in 
 several such cases, it is true ; but it has generally been, as 
 stated by the President in his veto message, " a matter of 
 bounty rather than of strict legal right." 
 
 In what we have said as to the exemption of govern- 
 ment from liability for private property injured or de- 
 stroyed during war, by the operation of armies in the 
 field, or by measures necessary for their safety and effi- 
 
14 
 
 ciency, we do not mean to include claims where property 
 of loyal citizens is taken for the service of our armies, 
 such as vessels, steamboats, and the like, for the trans- 
 port of troops and munitions of war; or buildings to be 
 used as storehouses and places of deposit of war material, 
 or to house soldiers or take care of the sick, or claims for 
 supplies seized and appropriated. In such cases it has been 
 the practice of the government to make compensation for 
 the property taken. Its obligation to do so is supposed 
 to rest upon the general principle of justice that compen- 
 sation should be made where private property is taken 
 for public use, although the seizure and appropriation of 
 private property under such circumstances by the mili- 
 tary authorities may not be within the terms of the con- 
 stitutional clause. (Mitchell v. Harmony, 13 How. 115, 
 134; United States v. Russell, 13 Wall. 623.) 
 
 While the government cannot be charged for injuries 
 to, or destruction of, private property caused by military 
 operations of armies in the field, or measures taken for 
 their safety and efficiency, the converse of the doctrine is 
 equally true that private parties cannot be charged for 
 works constructed on their lands by the government to 
 further the operations of its armies. Military necessity 
 will justify the destruction of property, but will not com- 
 pel private parties to erect on their own lands works 
 needed by the government, or to pay for such works when 
 erected by the government. The cost of building and 
 repairing roads and bridges to facilitate the movements 
 of troops, or the transportation of supplies and munitions 
 of war, must, therefore, be borne by the government. 
 
 It is true that in some instances the works thus con- 
 structed may, afterwards, be used by the owner; a house 
 built for a barrack, or for the storage of supplies, or for a 
 temporary fortification, might be converted to some pur- 
 poses afterwards by the owner of the land, but that cir- 
 cumstance would impose no liability upon him. When- 
 ever a structure is permanently affixed to real property 
 
15 
 
 belonging to an individual, without his consent or request, 
 he cannot be held responsible because of its subsequent 
 use. It becomes his by being annexed to the soil; and 
 he is not obliged to remove it to escape liability. He is 
 not deemed to have accepted it so as to incur an obliga- 
 tion to pay for it, merely because he has not chosen to 
 tear it down, but has seen fit to use it. (Zottman v. San 
 Francisco, 20 Cal. 96, 107.) Where structures are placed 
 on the property of another, or repairs are made to them, 
 he is supposed to have the right to determine the manner, 
 form, and time in which the structures shall be built, or 
 the repairs be made, and the materials to be used; but 
 upon none of these matters was the company consulted 
 in the case before us. The government regarded the in- 
 terests only of the army ; the needs or wishes of the com- 
 pany were not considered. No liability, therefore, could 
 be fastened upon it for work thus done. 
 
 We do not find any adjudged cases on this particular 
 point ; whether the government can claim compensation 
 for structures erected on land of private parties, or an- 
 nexed to their property, not by their request, but as a 
 matter of military necessity, to enable its armies to prose- 
 cute their movements with greater efficiency ; and we are 
 unable to recall an instance where such a claim has been 
 advanced. 
 
 It follows from these views that the government can 
 make no charge against the railroad company for the four 
 bridges constructed by it from military necessity. The 
 court will leave the parties where the war and the mili- 
 tary operations of the government left them. 
 
 The judgment of the Court of Claims must, therefore, be 
 reversed, and judgment be entered for the full amount claimed 
 by the railroad company for its services; and it is so ordered. 
 
 UFI7ERSIT7 
 
THE POWER "OF THE STATE 
 
 TO 
 
 CONTROL THE COMPENSATION 
 
 RECEIVABLE FOB 
 
 THE USE OF PRIVATE PROPERTY, 
 
 AND FOR 
 
 SERVICES IN CONNECTION WITH IT 
 
 CONSIDERED. 
 
THE POWER OF THE STATE TO CONTROL THE COMPEN- 
 SATION RECEIVABLE FOR THE USE OF PRIVATE 
 PROPERTY, AND FOR SERVICES IN CON- 
 NECTION WITH IT, CONSIDERED. 
 
 THE DISSENTING OPINIONS 
 
 OF 
 
 CTTJSTICE IF 1 ! IE L ID, 
 
 OF U. S. SUPREME COURT, 
 
 THE CHICAGO ELEVATOR CASE, 
 
 AND 
 
 THE GRANGER CASES, 
 
 DECIDED MARCH, 1877. 
 
By that act, public warehouses, as defined in the con- 
 stitution, were divided into three classes, the first of 
 which embraced all warehouses, elevators, or granaries 
 located in cities having not less than one hundred thou- 
 sand inhabitants, in which grain was stored in bulk, 
 and the grain of different owners was mixed together, 
 or stored in such manner, that the identity of different 
 lots or parcels could not be accurately preserved. To 
 this class the elevator of the defendants belonged. The 
 act prescribed the maximum of charges, which the 
 proprietor, lessee, or manager of the warehouse was 
 allowed to make for storage and handling of grain, in- 
 cluding the cost of receiving and delivering it, for the 
 first thirty days or any part thereof, and for each suc- 
 ceeding fifteen days or any part thereof; and it re- 
 quired him to procure from the circuit court of the 
 county a license to transact business as a public ware- 
 houseman, and to give a bond to the people of the state 
 in the penal sum often thousand dollars for the faithful 
 performance of his duty as such warehouseman of the 
 first class, and for his full and unreserved compliance 
 with all laws of the state in relation thereto. The 
 license was made revocable by the circuit court up- 
 on a summary proceeding for any violation of such 
 laws. And a penalty was imposed upon every person 
 transacting business as a public warehouseman of the 
 first class without first procuring a license, or continuing 
 in such business after his license had been revoked, of 
 not less than one hundred or more than five hundred 
 dollars for each day on which the business was thus 
 carried on. The court was also authorized to refuse 
 for one year to renew the license, or to grant a new one 
 to any person whose license had been revoked. The 
 maximum of charges prescribed by the act for the 
 receipt and storage of grain was different from that 
 which the defendants had previously charged, and 
 which had been agreed to by the owners of the grain. 
 
More extended periods of storage were required of them 
 than they formerly gave for the same charges. What 
 they formerly charged for the first twenty days of stor- 
 age, the act allowed them to charge only for the first 
 thirty days of storage ; and what they formerly charged 
 for each succeeding ten days after the first twenty, the 
 act allowed them to charge only for each succeeding 
 fifteen days after the first thirty. The defendants, 
 deeming that they had a right to use their own prop- 
 erty in such manner as they desired, not inconsistent 
 with the equal right of others to a like use, and deny- 
 ing the power of the legislature to fix prices for the 
 use of their property and their services in connection 
 with it, refused to comply with the act by taking out 
 the license and giving the bond required ; but contin- 
 ued to carry on the business and to charge for receiving 
 and storing grain such prices as they had been accus- 
 tomed to charge, and as had been agreed upon between 
 them and the owners of the grain. For thus transact- 
 ing their business without procuring a license as re- 
 quired by the act, .they were prosecuted and fined, and 
 the judgment against them was affirmed by the su- 
 preme court of the state. 
 
 The question presented, therefore, is one of the 
 greatest importance : whether it is within the compe- 
 tency of a state to fix the compensation which an indi- 
 vidual may receive for the use of his own property in 
 his private business and for his services in connection 
 with it ? 
 
 The declaration of the constitution of 1870, that pri- 
 vate buildings used for private purposes shall be deemed 
 public institutions, does not make them so. The re- 
 ceipt and storage of grain in a building erected by 
 private means for that purpose does not constitute the 
 building a public warehouse. There is no magic in 
 the language, though used by a constitutional conven- 
 tion, which can change a private business into a public 
 
one, or alter the character of the building in which the 
 business is transacted. A tailor's or a shoemaker's 
 shop would still retain its private character even though 
 the assembled wisdom of the state should declare by 
 organic act or legislative ordinance that such a place 
 was a public workshop, and that the workmen were 
 public tailors or public shoemakers. One might as 
 well attempt to change the nature of colors by giving 
 them a new designation. The defendants were no 
 more public warehousemen, as justly observed by 
 counsel, than the merchant who sells his merchandise 
 to the public is a public merchant, or the blacksmith 
 who shoes horses for the public is a public blacksmith ; 
 and it was a strange notion that by calling them so 
 they would be brought under legislative control. 
 
 The supreme court of the state divided, it is true, 
 by three to two of its members has held that this leg- 
 islation was a legitimate exercise of state authority 
 over private business ; and the Supreme Court of the 
 United States, two only of its members dissenting, has 
 decided that there is nothing in the Constitution of the 
 United States, or its recent amendments, which im- 
 pugns its validity. It is, therefore, with diffidence I 
 presume to question the soundness of the decision. 
 
 The validity of the legislation was, among other 
 grounds, assailed in the state court as being in conflict 
 with that provision of the state constitution which de- 
 clares that no person shall be deprived of life, liberty, 
 or property without due process of law, and with that 
 provision of the 14th amendment of the Federal Con- 
 stitution which imposes a similar restriction upon the 
 action of the state. The state court held in substance 
 that the constitutional provision was not .violated so 
 long as the owner was not deprived of the title and 
 possession of his property ; and that it did not deny to 
 the legislature the power to make all needful rules and 
 regulations respecting the use and enjoyment of the 
 
property, referring, in support of the position, to in- 
 stances of its action in prescribing the interest on 
 money, in establishing and regulating public ferries 
 and public mills, and fixing the compensation in the 
 shape of tolls, and in delegating power to municipal 
 bodies to regulate the charges of hackmen and dray, 
 men and the weight and price of bread. In this court 
 the legislation was also assailed on the same ground, 
 our jurisdiction arising upon the clause of the 14th 
 amendment ordaining that no state shall deprive any 
 person of life, liberty, or property without due process 
 of law. But it would seem from its opinion that the 
 court, holds that property loses something of its pri- 
 vate character when employed in such a way as to be 
 generally useful. The doctrine declared is that prop- 
 erty u becomes clothed with a public interest when 
 usefl. in a manner to make it of public consequence and 
 affect the community a.t large;" and from such cloth- 
 ing the right of the legislature is deduced to control 
 the use of the property and to determine the compen- 
 sation which the owner may receive for it. When Sir 
 Matthew Hale, and the sages of the law in his day, 
 spoke of property as affected by a public interest, and 
 ceasing from that cause to be juris privati solely, that 
 is, ceasing to be held merely in private right, they re- 
 ferred to property dedicated by the owner to public 
 uses, or to property the use of which was granted by 
 the government, or in connection with which special 
 privileges were conferred. Unless the property was 
 thus dedicated, or some right bestowed by the govern- 
 ment was held with the property, either by specific 
 grant or by prescription of so long a time as to imply 
 a grant originally, the property was not v affected by 
 any public interest so as to be taken out of the cate- 
 gory of property held in private right. But it is not 
 in any such sense that the terms " clothing property 
 with a public interest " are used in this case. From 
 
the nature of the business under consideration the 
 storage of grain which, in any sense in which the 
 words can be used, is a private business, in which the 
 public are interested only as they are interested in the 
 storage of other products of the soil, or in articles of 
 manufacture, it is clear that the court intended to de- 
 clare that whenever one devotes his property to a busi- 
 ness which is useful to the public " affects the com- 
 munity at large" the legislature can regulate the 
 compensation which the owner may receive for its use 
 and for his own services in connection with it. " When, 
 therefore," says the court, "one devotes his property 
 to a use in which the public has an interest, he, in 
 effect, grants to the public an interest in that use, and 
 must submit to be controlled by the public for the 
 common good to the extent of the interest he has thus 
 created. He may withdraw his grant by discontinu- 
 ing the use, but so long as he maintains the use he 
 must submit to the control." The building used by 
 the defendants was for the storage of grain; in such 
 storage, says the court, the public has an interest ; 
 therefore the defendants, by devoting the building to 
 that storage, have granted to the public an interest in 
 that use, and must submit to have their compensation 
 regulated by the legislature. 
 
 If this be sound law, if there be no protection either 
 in the principles upon which our republican govern- 
 ment is founded, or in the prohibitions of the Consti- 
 tution against such invasion of private rights, all prop- 
 erty and all business in the state are held at the mercy 
 of a majority of its legislature. The public has no 
 greater interest in the use of buildings for the storage 
 of grain than it has in the use of buildings for the 
 residences of families, nor, indeed, anything like so 
 great an interest ; and according to the doctrine an- 
 nounced, the legislature may fix the rent of all tene- 
 ments used for residences without reference to the cost 
 
9 
 
 of their erection. If the owner does not like the rates 
 prescribed he may cease renting his houses. He has 
 granted to the public, says the court, an interest in 
 the use of the buildings, and " he may withdraw his 
 grant by discontinuing the use; but so long as he 
 maintains the use he must submit to the control." The 
 public is interested in the manufacture of cotton, wool- 
 en, and silken fabrics, in the construction of machin- 
 ery, in the printing and publication of books and 
 periodicals, and in the making of Utensils of every 
 variety, useful and ornamental; indeed, there is hardly 
 an enterprise or business engaging the attention and 
 labor of any considerable portion of the community 
 in which the public has not an interest in the sense in 
 which that term is used by the court in its opinion; 
 and the doctrine which allows the legislature to inter- 
 fere with and regulate the charges which the owners 
 of property thus employed shall make for its use, that 
 is, the rates at which all these different kinds of busi- 
 ness shall be carried on, has never before been as- 
 serted, so far as I am aware, by any judicial tribunal, 
 in the United States. 
 
 The doctrine of the state court, that no one is de- 
 prived of his property, within the meaning of the 
 constitutional inhibition, so long as he retains its title 
 and possession, and the doctrine of this court, that 
 whenever one's property is used in such a manner as 
 to affect the community at large, it becomes by that 
 fact clothed with a public interest and ceases to be 
 juris privati only, appear to me to destroy for all use- 
 ful purposes the efficacy of the constitutional guaranty. 
 All that is beneficial in property arises from its use, and 
 the fruits of that use; and whatever deprives a person 
 of them deprives him of all that is desirable or valu- 
 able in the title and possession. If the constitutional 
 guaranty extends no further than to prevent a depriva- 
 tion of title and possession, and allows a deprivation of 
 
10 
 
 use and the fruits of that use, it does not merit the 
 encomiums it has received. Unless I have misread the 
 history of the provision now incorporated into all our 
 state constitutions, and by the fifth and fourteenth 
 amendments into our Federal Constitution, and have 
 misunderstood the interpretation it has received, it is 
 not thus limited in its scope and thus impotent for 
 good. It has a much more extended operation than 
 either court, state or federal, has given to it. The 
 provision, it is to be observed, places property 
 under the same protection as life and liberty. Except 
 by due process of law no state can deprive any person 
 of either. The provision has been supposed to secure 
 to every individual the essential conditions for the 
 pursuit of happiness, and for that reason has not been 
 heretofore, and should never be, construed in any nar- 
 row or restricted sense. 
 
 No state " shall deprive any person of life, liberty, or 
 property without due process of law," says the 14th 
 amendment to the Constitution. By the term " life," 
 as here used, something more is meant than mere ani- 
 mal existence. The inhibition against its deprivation 
 extends to all those limbs and faculties by which life 
 is enjoyed. The provision equally prohibits the mutila- 
 tion of the body by the amputation of an arm or leg, 
 or the putting out of an eye, or the destruction of any 
 other organ of the body through which the soul com- 
 municates with the outer world. The deprivation, not 
 only of life, but of whatever God has given to every one 
 'with life, for its growth and enjoyment, is prohibited 
 by the provision in question, if its efficacy be not frit- 
 tered away by judicial decision. 
 
 By the term "liberty," as used in the provision, 
 something more is meant than mere freedom from 
 physical restraint or the bounds of a prison. It means 
 freedom to go where one may choose, and to act in 
 such manner, not inconsistent with the equal rights of 
 
11 
 
 others, as his judgment may dictate for the promotion 
 of his happiness that is, to pursue such callings and 
 avocations as may be most suitable to develop his 
 capacities and give to them their highest enjoyment.' 
 
 The same liberal construction which is required for 
 the protection of life and liberty, in all particulars in 
 which life and liberty are of any value, should be 
 applied to the protection of private property. If the 
 legislature of a state, under pretence of providing for 
 the public good, or for any other reason, can determine, 
 against the consent of the owner, the uses to which 
 private property shall be devoted, or the prices which 
 the owner shall receive for its uses, it can deprive him 
 of the property as completely as by a special act for its 
 confiscation or destruction. If, for instance, the owner 
 is prohibited from using his building for the purposes 
 for which it was designed, it is of little consequence 
 that he is permitted to retain the title and possession. 
 Or if he is compelled to take as compensation for its 
 use less than the expenses to which he is subjected by 
 its ownership, he is for all practical purposes deprived 
 of the property, as effectually as if the legislature had 
 ordered his forcible dispossession. If it be admitted 
 that the legislature has any control over the compensa- 
 tion, the ..extent of that compensation becomes a mere 
 matter of legislative discretion. The amount fixed will 
 operate as a partial destruction of the value of the 
 property, if it fall below the amount which the owner 
 would obtain by contract, and, practically, as a com- 
 plete destruction, if it be less than the cost of retaining 
 its possession. There is, indeed, no protection of any 
 value under the constitutional provision which does 
 not extend to the use and income of the property as 
 well as to its title and possession. 
 
 This court has heretofore held in many instances 
 that a constitutional provision intended for the protec- 
 tion of rights of private property should be liberally 
 
12 
 
 construed. It has so held in the numerous cases whejje 
 it has been called upon to give effect to the provision 
 prohibiting the states from legislation impairing the 
 obligation of contracts ; the provision being construed 
 not only to secure the contract itself from direct attack, 
 but all the essential incidents which give it value and 
 enable its owner to enforce it. Thus, in Bronson vs. 
 Kinzie, reported in the 1st of Howard, it was held 
 that an act of the legislature of Illinois giving to a 
 mortgagor twelve months within which to redeem his 
 mortgaged property from a judicial sale, and prohibit- 
 ing its sale for less than two-thirds of its appraised 
 value, was void as applied to mortgages executed .prior 
 to its passage. It was contended, in support of the act, 
 that it affected only the remedy of the mortgagee and 
 did not impair the contract; but the court replied that 
 there was no substantial difference between a retro- 
 spective law declaring a particular contract to be abro- 
 gated and void and one which took away all remedy to 
 enforce it, or encumbered the remedy with conditions 
 that rendered it useless or impracticable to pursue it. 
 And, referring to the constitutional provision, the court 
 said, speaking through Mr. Chief Justice Taney, that 
 " it would be unjust to the memory of the distinguished 
 men who framed it to suppose that it was designed to 
 protect a mere barren and abstract right, without any 
 practical operation upon the business of life. It was 
 undoubtedly adopted as a part of the Constitution for a 
 great and useful purpose. It was to maintain the in- 
 tegrity of contracts and to secure their faithful execu- 
 tion throughout this Union by placing them under the 
 protection of the Constitution of the United States. 
 And it would but ill become this court, under any cir- 
 cumstances, to depart from the plain meaning of the 
 words used and to sanction a distinction between the 
 right and the remedy which would render this provis- 
 ion illusive and nugatory, mere words of form, afford- 
 ing uo protection and producing no practical result." 
 
13 
 
 And in Pumpelly vs. Green Bay Company, reported 
 in the 13th of Wallace, the language of the court is 
 equally emphatic. That case arose in Wisconsin, the 
 constitution of which declares, like the constitutions of 
 nearly all the states, that private property shall not be 
 taken for public use without just compensation ; and 
 this court held that the flooding of one's land by a dam 
 constructed across a river under a law of the state was 
 a taking within the prohibition, and required compen- 
 sation to be made to the owner of the land thus flooded. 
 The court, speaking through Mr. Justice Miller, said : 
 " It would be a very curious and unsatisfactory result, 
 if, in construing a provision of constitutional law, 
 always understood to have been adopted for protection 
 and security to the rights of the individual as against 
 the government, and which has received the commen- 
 dation of jurists, statesmen and commentators, as pla- 
 cing the just principles of the common law on that 
 subject beyond the power of ordinary legislation to 
 change or control them, it shall be held that if the 
 government refrains from the absolute conversion of 
 real property to the uses of the public it can destroy its 
 value entirely, can inflict irreparable and permanent 
 injury to any extent, can, in effect, subject it to total 
 destruction, without making any compensation, because, 
 in the narrowest sense of the word, it is not taken for 
 the public use. Such a construction would pervert the 
 constitutional provision into a restriction on the rights 
 of the citizen, as those rights stood at the common law, 
 instead of the government, and make it an authority 
 for invasion of private right under the pretext of the 
 public good, which had no warrant in the laws or 
 practices of our ancestors." The views expressed in 
 these citations, applied to this case, would render the 
 constitutional provision invoked by the defendants 
 effectual to protect them in the uses, income, and rev- 
 enues of their property as well as in its title and pos- 
 
14 
 
 session. The construction actually given by the state 
 court and by this court makes the provision, in the 
 language of Taney, a protection to " a mere barren and 
 abstract right, without any practical operation upon the 
 business of life," and renders it "illusive and nuga- 
 tory, mere words of form, affording no protection and 
 producing no practical result." 
 
 The power of the state over the property of the 
 citizen under the constitutional guaranty is well de- 
 fined. The state may take his property for public 
 uses upon just compensation being made therefor. It 
 may take a portion of his property by way of taxation 
 for the support of the government. It may control the 
 use and possession of his property so far as may be 
 necessary for the protection of the rights of others, and 
 to secure to them the equal use and enjoyment of their 
 property. The doctrine that each one must so use his 
 own as not to injure his neighbor sic utere tuo ut alie- 
 num non Icedas is the rule by which every member 
 of society must possess and enjoy his property ; and 
 all legislation essential to secure this common and 
 equal enjoyment is a legitimate exercise of state au- 
 thority. Except in cases where property may be de- 
 stroyed to arrest a conflagration or the ravages of 
 pestilence, or be taken under the pressure of an im- 
 mediate and overwhelming necessity to prevent a 
 public calamity, the power of the state over the 
 property of the citizen does not extend beyond such 
 limits. 
 
 It is true that the legislation which secures to all 
 protection in their rights and the equal use and enjoy- 
 ment of their property embraces an almost infinite 
 variety of subjects. Whatever affects the peace, good 
 order, morals, and health of the community comes 
 within its scope, and every one must use and enjoy his 
 property subject to the restrictions which such legisla- 
 tion imposes. What is termed the police power of the 
 
15 
 
 state, which from the language often used respecting 
 it one would suppose to be an undefined and irrespon- 
 sible element in government, can only interfere with 
 the conduct of individuals in their intercourse with 
 each other, and in the use of their property, so far as 
 may be required to secure these objects. The com- 
 pensation which the owners of property, not having 
 any special rights or privileges from the government 
 in connection with it, may demand for its use, or for 
 their own services in union with it, forms no element 
 of consideration in prescribing regulations for that 
 purpose. If one construct a building in a city, the 
 state, or the municipality exercising a delegated power 
 from the state, may require its walls to be of sufficient 
 thickness for the uses intended; it may forbid the em- 
 ployment of inflammable materials in its construction, 
 so as not to endanger the safety of his neighbors; if 
 designed as a theater, church, or public hall, it may 
 prescribe ample means of egress so as to afford facility 
 for escape in case of accident; it may forbid the stor- 
 age in it of powder, nitro-glycerine, or other explosive 
 material; it may require its occupants daily to remove 
 decayed vegetable and animal matter which would 
 otherwise accumulate and engender disease; it may 
 exclude from it'all occupations and business calculated 
 to disturb the neighborhood or infect the air. Indeed, 
 there is no end of regulations with respect to the use 
 of property which may not be legitimately prescribed, 
 having for their object the peace, good order, safety, 
 and health of the community, thus securing to all the 
 equal enjoyment of their property; but in establishing 
 these regulations it is evident that compensation to 
 the owner for the use of his property, or for his services 
 in union with it, is not a matter of any importance; 
 whether it be one sum or another does not affect the 
 regulation, either in respect to its utility or mode of 
 enforcement. One may go in like manner through 
 
the whole round of regulations authorized by legisla- 
 tion, state or municipal, under what is termed the 
 police power, and in no instance will he find that the 
 compensation of the owner for the use of his property 
 has any influence in establishing them. It is only 
 where some right or privilege is conferred by the gov- 
 ernment or municipality upon the owner which he can 
 use in connection with his property, or by means of 
 which the use of his property is rendered more valu- 
 able to him, or he thereby enjoys an advantage over 
 others, that the compensation to be received by him be- 
 comes a legitimate matter of regulation. Submission 
 to the regulation of compensation in such cases is an 
 implied condition of the grant, and the state in exer- 
 cising its power of prescribing the compensation only 
 determines the conditions upon which its concession 
 shall be enjoyed. When the privilege ends the power 
 of regulation ceases. 
 
 Jurists and writers on public law find authority for 
 the exercise of this police power of the state and the 
 numerous regulations which it prescribes in the doc- 
 trine already stated, that every one must use and enjoy 
 his property consistently with the rights of others and 
 the equal use and enjoyment by them of their prop- 
 erty. " The police power of the state," says the Su- 
 preme Court of Vermont, " extends to the protection 
 of the lives, limbs, health, comfort, and quiet of all 
 persons, and the protection of all property in the state. 
 According to the maxim, sic utere tuo ut alienum non 
 Icedas, which being of universal application, it must, 
 of course, be within the range of legislative action to 
 define the mode and manner in which every one may so 
 use his own as not to -injure others."* " We think it a 
 settled principle growing out of the nature of well 
 ordered civil society," says the Supreme Court of Mas- 
 sachusetts, "that every holder of property, however 
 
 * Thorpe vs. Rutland & Burlington R. R. Co., 27 Vt., 149. 
 
17 
 
 absolute and unqualified may be his title, holds it 
 under the implied liability that his use of it shall not 
 be injurious to the equal enjoyment of others having an 
 equal right to the enjoyment of their property, nor injurious 
 to the rights of the community."* In his commentaries, 
 after speaking of the protection afforded by the Con- 
 stitution to private property, Chancellor Kent says : 
 " But though property be thus protected, it is still to 
 be understood that the lawgiver has the right to pre- 
 scribe the mode and manner of using it, so far as may 
 be necessary to prevent the abuse of the right, to the injury 
 or annoyance of others, or of the public. The govern- 
 ment may, by general regulations, interdict such uses of 
 property as would create nuisances and become dan- 
 gerous to the lives, or health, or peace, or comfort of 
 the citizens. Unwholesome trades, slaughter-houses, 
 operations offensive to the senses, the deposit of pow- 
 der, the application of steam power to propel cars, the 
 building with combustible materials, and the burial of 
 the dead may all be interdicted by law, in the midst of 
 dense masses of population, on the general and rational 
 principle that every person ought so to use his property as 
 not to injure his neighbors, and that private interest must 
 be subservient to the general interests of the community."^ 
 
 The italics in these citations are mine. The citations 
 show what I have already stated to be the case, that 
 the regulations which the state, in the exercise of its 
 police power, authorizes with respect to the use of 
 property are entirely independent of any question of 
 compensation for such use or for the services of the 
 owner in connection with it. 
 
 There is nothing in the character of the business of 
 the defendant as warehousemen which called for the 
 interference complained of in this case. Their buildings 
 are not nuisances ; their occupation of receiving and 
 
 * Commonwealth vs. Alger, 7 Gushing, 84. 
 t 2 Kent, 340. 
 
18 
 
 storing grain infringes upon no rights of others, disturbs 
 no neighborhood, infects not the air, and in no respect 
 prevents others from using and enjoying their property 
 as to them may seem best. The legislation in question 
 is nothing Jess than a bold assertion of absolute power 
 by the state to control at its discretion the property 
 and business of the citizen, and fix the compensation 
 he shall receive. The will of the legislature is made 
 the condition upon which the owner shall receive the 
 fruits of his property and the just reward of his labor, 
 industry, and enterprise. "That government," says 
 Story, " can scarcely be deemed to be free where the 
 rights of property are left solely dependent upon the 
 will of a legislative body without any restraint. The 
 fundamental maxims of a free government seem to re- 
 quire that the rights of personal liberty and private 
 property should be held sacred."* The decision of the 
 court in this case gives unrestrained license to legisla- 
 tive will. 
 
 The several instances mentioned by counsel in the 
 argument and by the court in its opinion, in which leg- 
 islation has fixed the compensation which parties may 
 receive for the use of their property and services, do 
 not militate against the views I have expressed of the 
 power of the state over the property of the citizen. 
 They were mostly cases of public ferries, bridges, and 
 turnpikes, of wharfingers, hackrnen, and draymen, and 
 of interest on money. In all these cases, except that 
 of interest on money, which I shall presently notice, 
 there was sorde special privilege granted by the state 
 or municipality ; and no one, I suppose, has ever con- 
 tended that the state had not a right to prescribe the 
 conditions upon which such privilege should be en- 
 joyed. The state in such cases exercises no greater 
 right than an individual may exercise over the use of 
 his own property when leased or loaned to others 
 
 * Wilkeson vs. Leland, 2 Peters, 657. 
 
19 
 
 The conditions upon which the privilege shall be en- 
 joyed being stated or implied in the legislation author- 
 izing its grant, no right is, of course, impaired by their 
 enforcement. The recipient of the privilege in effect 
 stipulates to comply with the conditions. It matters 
 not how limited the privilege conferred, its acceptance 
 implies an assent to the regulation of its use and the 
 compensation for it. The privilege which the hack- 
 man and drayman have to the use of stands on the 
 public streets, not allowed to the ordinary coachman 
 or laborer with teams, constitutes a sufficient warrant 
 for the regulation of their fares. In the case of the 
 warehousemen of Chicago, no right or privilege is con- 
 ferred by the government upon them, and hence no 
 assent of theirs can be alleged to justify any interfer- 
 ence with their charges for the use of their property. 
 The quotations from the writings of Sir Matthew 
 Hale, so far from supporting the positions of the court, 
 do not recognize the interference of the government 
 even to the extent which I have admitted to be legiti- 
 mate. They state merely that the franchise of a public 
 ferry belongs to the king, and cannot be used by the 
 subject except by license from him, or prescription 
 time out of mind ; and that when the subject has a 
 public wharf by license from the king, or from having 
 dedicated his private wharf to the public, as in the case 
 of a street opened by him through his own land, he 
 must allow the use of the wharf for reasonable and 
 moderate charges. Thus, in the first quotation, which 
 is taken from his treatise "De Jure Maris," Hale says 
 that the king has a " right of franchise or privilege, 
 that no man may set up a common ferry for all passen- 
 gers without a prescription time out of mind or a 
 charter from the king. He may make a ferry for his 
 own use or the use of his family, but not for the com- 
 mon use of all the king's subjects passing that way ; 
 because it doth in consequent tend to a common charge, 
 
20 
 
 and is become a thing of public interest and use, and 
 every man for his passage pays a toll, which is a com- 
 mon charge, and every ferry ough^to be under a publick 
 regulation, viz., that it give attendance at due times, 
 keep a boat in due order, and take but reasonable toll ; 
 for if he fail in these he is fineable." Of course one 
 who obtains a license from the king to establish a pub- 
 lic ferry at which " every man for his passage pays a 
 toll," must take it on condition that he charge only 
 reasonable toll, and indeed subject to such regulations 
 as the king may prescribe. 
 
 In the second quotation, which is taken from his 
 treatise " De Portibus Maris," Hale says : " A man, for 
 his own private advantage, may, in a port or town, set 
 up a wharf or crane, and may take what rates he and 
 his customers can agree for cranage, wharfage, housel- 
 lage, pesage ; for he doth no more than is lawful for 
 any man to do, viz., makes the most of his own. . . . 
 If the king or subject have a publick wharf, unto 
 which all persons that come to that port must come 
 and unlade or lade their goods as for the purpose, be- 
 cause they are the wharves only licensed by the king, 
 ... or because there is no other wharf in that port, 
 as it may fall out where a port is newly erected, in 
 that case there cannot be taken arbitrary and excessive 
 duties for cranage, wharfage, pesage, &c., neither can 
 they b enhanced to an immoderate rate, but the 
 duties must be reasonable and moderate, though settled 
 by the king's license or charter. For now the wharf 
 and crane and other conveniences are affected with a 
 publick interest, and they cease to be juris privati only; 
 as if a man set out a-street in new building on his own 
 land, it is now no longer bare private interest, but is 
 affected by the publick interest." The purport of 
 which is that if one have a public wharf, by license 
 from the government or his own dedication, he must 
 exact only reasonable compensation for its use. By its 
 
21 
 
 dedication to public use a wharf is as much brought 
 under the common law rule of subjection to reasonable 
 charges as it would be if originally established or 
 licensed by the crown. All property dedicated to pub- 
 lic use by an individual owner, as in the case of land 
 for a park or street, falls at once, by force of the dedi- 
 cation, under the law governing property appropriated 
 by the government for similar purposes. 
 
 I do not doubt the justice of the encomiums passed 
 upon Sir Matthew Hale as a learned jurist of his day, but 
 I am unable to perceive the pertinency of his observations 
 upon public ferries and public wharves, found in his 
 treatises on The Rights of the Sea and on The Ports of 
 the Sea, to the questions presented by the warehousing 
 law of Illinois undertaking to regulate the compensation 
 receivable by the owners of private property, when that 
 property is used for private purposes. 
 
 The principal authority cited in support of the ruling 
 of the court is that of Alnutt vs. Inglis, decided by the 
 King's Bench and reported in the 12th of East. But 
 that case, so far from sustaining the ruling, establishes, 
 in my judgment, the doctrine that every one has a 
 right to charge for his property, or for its use, what- 
 ever he pleases, unless he enjoys in connection with it 
 some right or privilege from the government not ac- 
 corded to others ; and even then it only decides what 
 is above stated in the quotations from Sir Matthew 
 Hale, that he must submit, so long as he retains the 
 right or privilege, to reasonable rates. In that case 
 the London Dock Company, under certain acts of Par- 
 liament, possessed the exclusive right of receiving 
 imported goods into their warehouses before the duties 
 were paid ; and the question was whether the company 
 was bound to receive them for a reasonable reward or 
 whether it could arbitrarily fix its compensation. In 
 deciding the case, the Chief Justice, Lord Ellen- 
 borough, said : " There is no doubt that the general 
 
22 
 
 principle is favored both in law and justice, that every 
 man may fix what price he pleases upon his own prop- 
 erty, or the use of it ; but if, for a particular purpose, 
 the public have a right to resort to his premises and 
 make use of them, and he have a monopoly in them 
 for that purpose, if he will take the benefit of that 
 monopoly, he must, as an equivalent, perform the 
 duty attached to it on reasonable terms." And coming 
 to the conclusion that the company's warehouses were 
 invested with " the monopoly of a public privilege," 
 he held that by law the company must confine itself to 
 take reasonable rates ; and added that if the crown 
 should thereafter think it advisable to extend the privi- 
 lege more generally to other persons and places, so 
 that the public would not be restrained from exercising 
 a choice of warehouses for the purpose, the company 
 might be enfranchised from the restriction which at- 
 tached to a monopoly; but so long as its warehouses 
 were the only places which could be resorted to for 
 that purpose, the company was bound to let the trade 
 have the use of them for a reasonable hire and reward. 
 The other judges of the court placed their concurrence 
 in the decision upon the ground that the company pos- 
 sessed a legal monopoly of the business, having the 
 only warehouses where goods imported could be law- 
 fully received without previous payment of the duties. 
 From this case it appears that it is only where some 
 privilege in the bestowal of the government is enjoyed 
 in connection with the property, that it is affected with 
 a public interest in any proper sense of the term. It is 
 the public privilege conferred with the use of the prop- 
 erty which creates the public interest in it. 
 
 In the case decided by the Supreme Court of Ala- 
 bama, where a power granted by the city of Mobile 
 to license bakers and to regulate the weight and price 
 of bread, was sustained so far as regulating the weight 
 of the bread was concerned, no question was made as 
 
23 
 
 to the right to regulate the price.* There is no doubt 
 of the competency of the state to prescribe the weight 
 of a loaf of bread, as it may declare what weight shall 
 constitute a pound or a ton. But I deny the power of 
 any legislature under our government to fix the price 
 which one shall receive for his property of any kind. 
 If the power can be exercised as to one article it may 
 as to all articles, and the prices of everything from a 
 calico gown to a city mansion may, be the subject of 
 legislative direction. 
 
 Other instances of a similar character may no doubt 
 be cited of attempted legislative interference with the 
 rights of property. The act of Congress of 1820, men- 
 tioned by the court, is one of them. There Congress 
 undertook to confer upon the city of Washington 
 power to regulate the rates of wharfage at private 
 wharves, and the fees for sweeping chimneys. Until 
 some authoritative adjudication is had upon these' and 
 similar provisions, I must adhere, notwithstanding the 
 legislation, to my opinion that those who own property 
 have the right to fix the compensation at which they 
 will allow its use, and that those who control services 
 have a right to fix the compensation at which they 
 will be rendered. The chimney-sweeps may, I think, 
 safely claim all the compensation which they can ob- 
 tain by bargain for their work. In the absence of 
 any. contract for property or services the law allows 
 only a reasonable price or compensation, but what is a 
 reasonable price in any case will depend upon a variety 
 of considerations, and is not a matter for legislative 
 determination. 
 
 The practice of regulating by legislation the interest 
 receivable for the use of money, when considered with 
 reference to its origin, is only the assertion of a right of 
 the government to 'control the extent to which a privi- 
 lege granted by it may be exercised and enjoyed. By 
 
 *3Ala., 137. 
 
24 
 
 the ancient common law it was unlawful to take anjr 
 money for the use of money; all who did so were 
 called usurers, a term of great reproach, and were ex- 
 posed to the censure of the church. And if after the 
 death of a person it was discovered that he had been a 
 usurer whilst living, his chattels were forfeited to the 
 king, and his lands escheated to the lord of the fee. 
 No action could be maintained on any promise to pay 
 for the use of money, because, of the unlawfulness of 
 the contract. Whilst the common law thus condemned 
 all usury, Parliament interfered and made it lawful to 
 take a limited amount of interest. It was not upon 
 the theory that the legislature could arbitrarily fix the 
 compensation which one could receive for the use of 
 property, which by the general law was the subject of 
 hire for compensation, that Parliament acted, but in 4 
 order to confer a privilege which the common law de- 
 nied. The reasons which led to this legislation origi- 
 nally have long since ceased to exist, and if the legis- 
 lation is still persisted in, it is because a long acquies- 
 cence in the exercise of a power, especially when it 
 was rightfully assumed in 'the first instance, is gener- 
 ally received as sufficient evidence of its continued 
 lawfulness.* 
 
 There were also recognized in England by the 
 ancient common law certain privileges as belonging to 
 the lord of the manor, which grew out of the state of 
 the country, the condition of the people, and the rela- 
 tion existing between him and his tenants under the 
 fendal system. Among these was the right of the lord 
 
 * 10 Bacon's Abridgment,' 264. The statute of 13 [Elizabeth, C. 8, 
 which allows ten per cent, interest, recites "that all usury being for- 
 bidden by the law of God is sin and detestable ;" and the statute of 21 
 James the First, reducing the rate to eight per cent., provided that 
 nothing in the law should be ''construed to allow the practice of usury 
 in point of religion or conscience," a clause introduced, it is said, to 
 satisfy the bishops, who would not vote for the bill without it. 
 
25 
 
 to compel all the tenants within his manor to grind 
 their corn at his mill. No one, therefore, could set up 
 a mill except by his license or by the license of the 
 crown, unless he claimed the right by prescription, 
 which presupposed a grant from the lord or crown, 
 and, of course, with such license went the right to 
 regulate the tolls to be received.* Hence originated 
 the doctrine which at one time obtained generally in 
 this country, that there could be no mill to grind corn 
 for the public without a grant or license from the pub- 
 lic authorities. It is still, I believe, asserted in some 
 states. This doctrine being recognized, all the rest 
 followed. The right to control the toll accompanied 
 the right to control the establishment of the mill. 
 
 It requires no comment to point out the radical 
 differences between the cases of public mills and in- 
 terest on money and that of the warehouses in Chicago. 
 No prerogative or privilege of the crown to establish 
 warehouses was ever asserted at the common law. The 
 business of a warehouseman was at common law a pri- 
 vate business, and is so in its nature. It has no special 
 privileges connected with it, nor did the law ever ex- 
 tend to it any greater protection than it extended to all 
 other private business. No reason can be assigned to 
 justify legislation interfering with the legitimate profits 
 of that business that would not equally justify an inter- 
 meddling with the business of every man in the com- 
 munity, so soon at least as his business became gener- 
 ally useful. 
 
 I am of opinion that the judgment of the Supreme 
 Court of Illinois should be reversed. 
 
 STRONG, J. When the judgment in this case was 
 announced by direction of a majority of the court, it 
 was well known by all my brethren that I did not 
 
 * Woolrych on the Law of Waters, chap, vi., of Mills. 
 
26 
 
 concur in it. It had been my purpose to prepare a 
 dissenting opinion, but I found no time for the prepar- 
 ation, and I was reluctant to dissent in such a case 
 without stating ray reasons. Mr. Justice Field has 
 now stated them as fully as I can, and I concur in what 
 he has said. 
 
SUPREME COURT OF THE UNITED STATES. 
 
 "THE GRANGER CASES." 
 
 The Chicago, Burlington and Quincy 
 Railroad Company 
 
 vs. 
 
 M. E.' Cutts, Attorney-General 
 
 Appeal from the Cir- 
 cuit Court of the 
 United States for 
 the District of 
 Iowa. 
 
 of Iowa. 
 And five other railroad cases. 
 Mr. Justice FIELD dissenting. 
 
 I dissent from the judgments of the court in the 
 several railroad cases arising in the states of Illinois, 
 Wisconsin, Iowa, and Minnesota, commonly known as 
 " The Granger Cases," and from the reasons on which 
 the judgments are founded. These cases involved a 
 consideration of the charters of the different companies, 
 and of the extent of the power of the legislature over 
 them, as well in the absence of any reservation of a 
 right to alter or repeal them, as when such reservation 
 was embodied in them or in the constitutions under 
 which they were granted. On the one hand, it was 
 contended that the legislature of each state possessed 
 the power, irrespective of any reservation, to regulate 
 at its discretion the compensation which the companies 
 chartered by it might charge for the carriage of per- 
 sons and merchandise, without reference to the ex- 
 penses of the carriage, or the obligations incurred in 
 the construction of the roads. Unlimited power over 
 every railroad corporation in respect to the business it 
 should carry on, and the compensation it should receive, 
 was asserted, except where these were specifically 
 designated and permanently fixed in the charter. 
 
28 
 
 On the other hand, it was contended that the charters 
 of the companies constituted contracts between the 
 states creating them and the corporators, within the 
 provision of the Federal Constitution prohibiting leg- 
 islation impairing the obligation of contracts; and that 
 they could not, therefore, be changed in any material 
 particular, unless the power to make the change was 
 reserved in the charters or in some constitutional pro- 
 vision of the states ; that the right of the companies 
 to operate their respective roads and charge reasonable 
 compensation for transportation of persons and mer- 
 chandise was the essential franchise granted, and that 
 what was reasonable compensation in any case, depend- 
 ing, as it must, upon a varietj T of considerations upon 
 which the parties had a right to be heard, was a judi- 
 cial question and not a matter for legislative determin- 
 ation. 
 
 It was also contended, that the clause in the 
 constitution of some of the states, reserving a power 
 to their legislatures to alter acts of incorporation, did 
 not authorize an entire change in the charter of a 
 corporation or its destruction ; and that any just inter- 
 pretation of the clause would prevent such a regulation 
 of fares as would take from a company the power to 
 meet its just obligations by which the means were 
 obtained to construct and equip its road. 
 
 The questions thus presented are of the gravest im- 
 portance, and their solution must materially affect the 
 value of property invested in railroads to the amount 
 of many hundreds of millions, and will have a great 
 influence in encouraging or repelling future invest- 
 ments in such property. They w,ere ably and elabor- 
 ately argued by eminent counsel, and nothing was 
 omitted which could have informed or enlightened the 
 court. The opportunity was presented for the court to 
 define the limits of the power of the state over its cor- 
 porations after they have expended money and incur- 
 
29 
 
 red obligations upon the faith of the grants to them, 
 and the rights of the corporators, so that on the one 
 hand the property interests of the stockholder would be 
 protected from practical confiscation, and on the other 
 hand the people would be protected from arbitrary and 
 extortionate charges. This has not been done, but the 
 doctrine advanced in the Chicago Elevator Case has 
 been applied to all railroad companies and their busi- 
 ness, and they are thus practically placed at the mercy 
 of the legislature of every state. 
 
 In the Elevator Case, the court has declared as its 
 solemn judgment that property " becomes clothed with 
 a public interest when it is used in v such a manner as 
 to be of public consequence and affect the community 
 at large," and thus loses enough of its private character 
 to make its use subject to regulation, not only in the 
 manner of the use, but as to the compensation which 
 the owner may receive for it. " When, therefore," 
 says the court, " one devotes his property to a use in 
 which the public has an interest, he, in effect, grants 
 to the public an interest in that use, and must submit 
 to be controlled by the public for the common good to 
 the extent of the interest he has thus created. He 
 may withdraw his grant by discontinuing the use, but 
 so long as he maintains the use he must submit to the 
 control." There is no business or enterprise involving 
 expenditures to any extent which is not of public con- 
 sequence and which does not affect the community at 
 large. There is no industry or employment, no trade 
 or manufacture, and no avocation which does not in a 
 greater or less extent affect the community at large, 
 and in which the public has not an interest in the sense 
 used by the court. 
 
 There is no doubt of the power of the legislature to 
 prescribe in the charter of any corporation the com- 
 pensation it may receive for services rendered, or to 
 reserve the power to regulate such compensation sub- 
 
30 
 
 sequently. The power to prescribe the conditions of 
 use and enjoyment necessarily accompanies the power 
 to grant. But the charter of a corporation being a 
 contract, a sufficient consideration for the privileges 
 and franchises conferred being found in the duties and 
 liabilities assumed by the corporators, the subsequent 
 power of the legislature is restrained by its terms. 
 This has been so often judicially declared that it has 
 been supposed to be no longer open to discussion. 
 The first question, therefore, for consideration in all 
 cases where legislation affects the constitution of a 
 corporation, or its beneficial operation, is, what is the 
 true construction of its charter, and consequently, what 
 privileges does it confer and what restraint does it im- 
 pose upon legislative interference. The rights and 
 privileges implied in the contract are equally as invio- 
 able as those expressed. This question is not met by 
 the court in its opinion, the several cases being dis- 
 posed of by the novel doctrine announced in the .Ele- 
 vator Case, that the legislature has a right to regulate 
 the compensation for the use of ail property, and for 
 services in connection with it, the use of which affects 
 the u community at large," and the further doctrine, 
 equally novel, that although the charter of a company 
 confers the power to make reasonable charges, the 
 whole matter is reserved to be regulated by the state 
 in its discretion. 
 
 If it be admitted that the reserved power to alter 
 all laws creating corporations authorizes the legislature 
 to regulate the rates of charges of a railroad company 
 for the transportation of persons and property, it should 
 not, in common honesty, be so' used as to destroy or 
 essentially impair the value of mortgages and other 
 obligations executed under express authority of the 
 state. The reserved power has not generally been 
 supposed to authorize the legislature to revoke the 
 contracts of the corporation with third parties, or to 
 
31 
 
 
 
 impair any vested rights acquired under them. But 
 no considerations of this kind are of any weight under 
 the decision in the Elevator Case. 
 
 So long as that decision remains, it will -be a waste 
 of words to discuss the questions argued by counsel in 
 these cases. That decision in its wide sweep practi- 
 cally destroys all the guaranties of the Constitution and 
 of the common law invoked by counsel for the protection 
 of the rights of the railroad companies. Of what avail 
 is the constitutional provision that no state shall de- 
 prive any person of his property except by due process 
 of law, if the state can, by fixing the compensation 
 which he may receive for its use, take from him all 
 that is] valuable in the property? To what purpose 
 can the constitutional prohibition upon the state against 
 impairing the obligation of contracts be invoked, if 
 the state can, in the face of a charter authorizing a 
 company to charge reasonable rates, prescribe what 
 rates shall be*deemed reasonable for services rendered? 
 That decision will justify the legislature in fixing the 
 price of all articles and the compensation for all serv- 
 ices. It sanctions intermeddling with all business and 
 pursuits 'and >property in the community, leaving the 
 use and enjoyment of property and compensation for 
 its use to the discretion of the legislature. Having 
 already'expressed my objections to that decision in a 
 dissenting opinion, I need not repeat them here. 
 
 STRONG, J. I concur in this dissent. 
 
THE POWER OF CONGRESS TO AUTHORIZE THE CORPO- 
 RATIONS OF ONE STATE TO DO BUSINESS IN ANOTHER 
 STATE WITHOUT THE LATTER'S CONSENT DENIED. 
 
 SUPREME COURT OF THE UNITED STATES. 
 OCTOBER TERM, 1877. 
 
 The Pensacola Telegraph Co., Appellant, "I Appeal from the Circuit 
 yg > Court of the United States 
 
 j for the Northern District 
 The Western Union Telegraph Co. j of Florida. 
 
 DISSENTING OPINION OF MR. JUSTICE FIELD. 
 
 I am compelled to dissent from the judgment of the court in this case, 
 and from the reasons upon which it is founded ; and I will state with as 
 much brevity as possible the grounds of my dissent. 
 
 The bill was filed to obtain an injunction restraining the defendant 
 from erecting, using, or maintaining a telegraph line in the county of 
 Escambia, Florida, on the ground that by a statute of the state, passed 
 in December, 1866, the complainant had acquired the exclusive right to 
 erect and use lines of telegraph in that county for the period of twenty 
 years. The court below denied the injunction and dismissed the bill, 
 upon the ground that the statute was in conflict with the act of Congress 
 of July 24th, 1866, entitled "An act to aid in the construction of tele- 
 graph lines, and to secure to the government the use of the same for 
 postal, military, and other purposes."* 
 
 The statute of Florida incorporated the Pensacola Telegraph Company, 
 which had been organized in December of the previous year, and in 
 terms declared that it should enjoy " the sole and exclusive privilege 
 and right of establishing and maintaining lines of electric telegraph in 
 the counties of Escambia and Santa Rosa, either from different points 
 within said counties, or connecting with lines coming into said counties, 
 or either of them, from other points in this or any other state." 
 
 Soon after its organization and in 1866 the company erected a line of 
 telegraph from the city of Pensacola, through the county of Escambia, 
 to the southern boundary of Alabama, a distance of forty-seven miles, 
 which has since been open and in continuous operation. It was located, 
 by permission of the Alabama and Florida Railroad Company, along its 
 line of railway. After the charter was obtained, the line was substan- 
 tially rebuilt, and two other lines in the county were erected by the 
 company. 
 
 In February, 1873, the legislature of Florida passed an act granting to 
 the Pensacola and Louisville Railroad Company, which had become the 
 
 * 14 Statutes at Large, 221. 
 
assignee of the Alabama and Florida Railroad Company, the right to con- 
 struct and operate telegraph lines upon its right-of-way from the bay of 
 Pensacola to the junction of its road with the Mobile and Montgomery rail- 
 road, and to connect the same with the lines of other companies. By an 
 amendatory act passed in the following year (February, 1874), the rail- 
 road company was authorized to construct and operate the lines, not only 
 along its road as then located, but as it might be thereafter located, 
 and along connecting roads in the county, to the boundary of Alabama, 
 and to connect and consolidate them with other telegraph companies, 
 and to sell and assign the property appertaining to them, and the rights, 
 privileges, and franchises conferred by the act ; and it empowered the 
 assignee, in such case, to construct and operate the lines and to enjoy these 
 rights, privileges, and franchises. 
 
 Under this amendatory act, and soon after its passage, the railroad 
 company assigned the rights, privileges, and franchises thus acquired 
 to the Western Union Telegraph Company, the defendant herein, a 
 corporation created under the laws of the State of New York, which 
 at once proceeded to erect a line from the city of Pensacola to the 
 southern boundary of Alabama, along the identical railway on which 
 the complainant's line was erected in 1866, and has been located 
 ever since, with the avowed intention of using it to transmit for 
 compensation messages for the public in the county and state. By 
 the erection and operation of this line, the complainant alleges that its 
 property would become valueless, and that it would lose the benefits of 
 the franchises conferred by its charter. 
 
 There can be no serious question that the State of Florida possessed 
 the absolute right to confer upon a corporation created by it the exclu- 
 sive privilege for a limited period to construct and operate a telegraph 
 line within its borders. Its constitution, in existence at the time, em- 
 powered the legislature to grant exclusive privileges and franchises 
 to private corporations for a period not exceeding twenty years. The 
 exclusiveness of a privilege often constitutes the only inducement for 
 undertakings holding out little prospect of immediate returns. The un- 
 certainty of the results of an enterprise will often deter capitalists, natu- 
 rally cautious and distrustful, from making an investment without some 
 assurance that in case the business become profitable they shall not en- 
 counter the danger of its destruction or diminution by competition. It 
 has, therefore, been a common practice in all the states to encourage 
 enterprises having for their object the promotion of the public good, such 
 as the construction of bridges, turnpikes, railroads, and canals, by grant- 
 ing for limited periods exclusive privileges in connection with them. 
 Such grants, so far from being deemed encroachments upon any riulits 
 or powers of the United States, are held to constitute contracts, and to 
 be within the protecting clause of the Constitution prohibiting any im- 
 pairing of their obligation. 
 
 The grant to the complainant was invaded by the subsequent grant to 
 the Pensacola and Louisville Railroad Company. If the first grant was 
 valid, the second was void, according to all the decisions of this court 
 upon the power of a state to impair its grant since the Dartmouth Col- 
 lege Case. The court below did not hold otherwise, and I do not un- 
 derstand that a different view is taken here; but it decided, and this 
 
court sustains the decision, that the statute making the first grant was 
 void by reason of its conflict with the act of Congress of July 24th, 1866. 
 
 With all deference to my associates, I cannot see that the act of Con- 
 gress has anything to do- with the case before us. In ray judgment, it 
 has reference only to telegraph lines over and along military and post 
 roads on the public domain of the United States. The title of the act 
 expresses its purpose, namely, "to aid in the construction of telegraph 
 lines and to secure to the government the use of the same for postal, 
 military, and other purposes." The aid conferred was the grant of a 
 right of way over the public domain ; the act does not propose to give 
 aid in any other way. Its language is that any telegraph company or- 
 ganized under the laws of a state " shall have the right to construct, 
 maintain, and operate lines of telegraph through and over any portion 
 of the public domain, over and along any of the military and post roads 
 which have been or may hereafter be declared such by act of Congress, 
 and over and across the navigable streams or waters of the United 
 States." The portion of the public domain which may be thus used is 
 designated by reference to the military and post roads upon it. 
 Were there any doubt that this is the correct construction of the act, 
 the provision which follows in the same section would seem to remove it, 
 namely, that any of the said companies shall " have the right to take 
 and use from such public lands the necessary stone, timber, and other 
 materials for its posts, piers, stations, and other needful uses in the con- 
 struction, maintenance, and operation of said lines of telegraph, and 
 may pre-empt and use such portion of the unoccupied public lands, sub- 
 ject to pre-emption, through which its said lines of telegraph may be 
 located, as may be necessary for its stations, not exceeding forty acres for 
 each station, but such sections shall not be within fifteen miles of each 
 other." In the face of this language, the italics of which are mine, there 
 ought not to be a difference of opinion as to the object of the act, ox as 
 to its construction. The conclusion reached by the majority of the court 
 not only overlooks this language, but implies that Congress intended to 
 give aid to the telegraph companies of the country those existing or 
 thereafter to be created not merely by allowing them to construct their 
 lines over and along post roads upon the public lands, but also over and 
 along such roads within the states which are not on the public lands, 
 where heretofore it has not been supposed that it could rightfully exer- 
 cise any power. 
 
 The only military roads belonging to the United States within the 
 states are in the military reservations; and to them the act obviously 
 does not apply. And there are no post roads belonging to the United 
 States within the states. The roads upon which the mails are carried 
 by parties, under contract with the government, belong either to the 
 states or to individuals or to corporations, and are declared post roads 
 only to protect the carriers from being interfered with, and the mails 
 from being delayed in their transportation, and the postal service from 
 frauds. The government has no other control over them. It has no 
 proprietary interest in them or along them to bestow upon any one* It 
 cannot use them without paying the tolls chargeable to individuals for 
 
similar uses; it cannot prevent the state from changing or discontinuing 
 them at its pleasure ; and it can acquire no ownership or property inter- 
 est in them, except in the way in which it may acquire any other prop- 
 erty in the states, namely, by purchase or by appropriation upon making 
 just compensation.* 
 
 The public streets in some of our cities are post roads under the decla- 
 ration of Congress ;f and it would be a strange thing if telegraph lines 
 could be erected by a foreign corporation along such streets without the 
 consent of the municipal and state authorities, and, of course, without 
 power on their part to regulate its charges or control its management. Yet 
 the doctrine asserted by the majority of the court goes to this length : 
 that if the owners of the property along the streets consent to the erec- 
 tion of such lines by a foreign corporation, the municipality and the 
 state are powerless to prevent it, although the exclusive right to erect 
 them may have been granted by the state to a corporation of its own 
 creation. 
 
 If by making a contract with a party to carry the mails over a par- 
 ticular road in a state, which thus becomes by act of Congress for that 
 purpose a post road, Congress acquires such rights with respect to the 
 road that it can authorize corporations of other states to construct along 
 and over it a line of telegraph, why may it not authorize them to con- 
 struct along the road a railway, or a turnpike, or a canal, or any other 
 work which may be used for the promotion of commerce? If the 
 authority exist in the one case, I cannot see why it does not equally 
 exist in the other. And if Congress can authorize the corporations 
 of one state to construct telegraph lines and railways in another state, 
 it must have the right to authorize them to condemn private property 
 for that purpose. The act under consideration does not, it is true, pro- 
 vide for such condemnation, but if the right exist to authorize the con- 
 struction of the lines it cannot be defeated from the inability of the 
 corporations to acquire the necessary property by purchase. The power 
 to grant implies a power to confer all the authority necessary to make 
 the grant effectual. It was for a long time a debated question whether 
 the United States, in order to obtain property required for their own 
 purposes, could exercise the right of eminent domain within a state. It 
 has been decided, only within the past two years, that the government, 
 if such property cannot be obtained by purchase, may appropriate it upon 
 making just compensation to the owner ; J but never has it been sug- 
 gested that the United States could enable a corporation of one state to 
 condemn property in another state, in order that it might transact its 
 private business there. 
 
 We are not called upon to say that (Congress may not construct a rail- 
 road as a post road, or erect for postal purposes a telegraph line. It may 
 be that the power to establish post roads is not limited to designating the 
 roads which shall be used as postal routes; a limitation which has been 
 asserted by eminent jurists and statesmen. If it be admitted that the 
 
 * Dickey vs. Turnpike Co., 7 Dana, 114. 
 
 f Rev. Stats., sec. 3,964. 
 
 t Kohl vs. U. St., 1 Otto, 367. 
 
 Elliott's Debates, edition of 1836, 433, 487 ; Views of President Monroe accompany- 
 ing his veto message of May 4th, 1822 ; Views of Judge McLean in his dissenting opinion 
 in the Wheeling Bridge Case, 18 How., p. 441-2. 
 
power embraces also the construction of such roads, it does not follow that 
 Congress can authorize the corporation of one state to construct and op- 
 erate a railroad or telegraph line in another state for the transaction of 
 private business, or even to exist there, without the permission of the lat- 
 ter state. By reason of its previous grant to the complainant Florida 
 was incompetent to give such permission to the assignor of the defend- 
 ant, or to any other company, to construct a telegraph line in the county 
 of Escambia. The act of the state of February 3d, 1874, in the face of 
 this grant, can only be held to authorize the construction of telegraph 
 lines by different companies in other counties. If, therefore, the defend- 
 ant has any rights in that county they are derived solely from the act of 
 Congress. 
 
 A corporation can have no legal existence beyond the limits of the 
 sovereignty which created it. In The Bank of Augusta vs. Earle, it was 
 said by this court that "it must dwell in the place of its creation and 
 cannot migrate to another sovereignty."* And in Paul vs. Virginia we 
 added that " the recognition of its existence even by other states, and 
 the enforcement of its contracts made therein, depend purely upon the 
 comity of those states, a comity which is never extended where the ex- 
 istence of the corporation or the exercise of its powers is prejudicial 
 to their interests or repugnant to their policy. Having no absolute right 
 of recognition in other states, but depending for such recognition and 
 the enforcement of its contracts upon their assent, it follows, as a matter 
 of course, that such assent may be granted upon such terms and con- 
 ditions as those states may think proper to impose. They may exclude 
 the foreign corporation entirely; they may restrict its business to par- 
 ticular localities, or they may exact such security for the performance 
 of its contracts with their citizens as in their judgment will best promote 
 the public interest. The whole matter rests in their discretion. "f If, 
 therefore, foreign corporations.can exist in the State of Florida, and do 
 business there by the authority of Congress, it must be because Congress 
 can create such corporations for local business, a doctrine to which I 
 cannot assent, and which to ray mind is pregnant with evil consequences. 
 
 In all that has been said of i.he importance of the telegraph as a means 
 of intercourse, and of its constant use in commercial transactions, I fully 
 concur. Similar language may be used with regard to railways ; indeed, 
 of the two the railway is much the more important instrument of com- 
 merce. But it is difficult to see how from this fact can be deduced the 
 right of Congress to authorize the corporations of one state to enter within 
 the borders of another state and construct railways and telegraph lines 
 in its different counties for the transaction of local business. The grant 
 to the complainant in no way interferes with the power of Congress, if it 
 possess such power, to construct telegraph lines or railways for postal 
 service or for military purposes, or with its power to regulate commerce 
 between the states. The imputation that Florida designed by the grant 
 to obstruct the powers of Congress in these respects, is not warranted by 
 anything in her statute. A like imputation, and with equal justice, 
 might be made against every state in the Union which has authorized 
 the construction of a railway or telegraph line in any one of its counties, 
 
 * 13 Peters, 588. 
 |8 Wallace, 181. 
 
6 
 
 with a grant of an exclusive right to operate the road or line for a limited 
 period. It is true the United States, equally with their citizens, may be 
 obliged in such cases to use the road or line, but it has not heretofore been 
 supposed that this fact impaired the right of the state to make the grant. 
 When the general government desires to transact business within a state 
 it necessarily makes use of the highways and modes of transit provided 
 under the laws of the slate, in the absence of those of its own creation. 
 The position advanced, that if a corporation be in any way engaged 
 in commerce it can enter and do business in another state without the 
 latter's consent, is novel and startling. There is nothing in the opinion 
 in Paul vs. Virginia which gives any support to it. The statute of Vir- 
 ginia, which was under consideration in that case, provided that no in- 
 surance company not incorporated under its laws should do business 
 within the state without previously obtaining a license for that purpose ; 
 and that it should not receive such license until it had deposited with 
 the treasurer of the state bonds of a specified character to an amount 
 varying from thirty to fifty thousand dollars. No such deposit was re- 
 quired of insurance companies incorporated by the state for carrying on 
 their business within it ; and in that case the validity of the discriminating 
 provisions of the statute, between the corporations of the state and 
 those of other states, was assailed. It was contended, among other 
 things, that the statute was in conflict with the power vested in Congress 
 to regulate commerce among the several states ; that the power included 
 commerce carried on by corporations as well as that carried on by 
 individuals ; and that the issuing of a policy of insurance upon prop- 
 erty in one state by a corporation of another state was a transaction of 
 inter-state commerce. The court replied that it was true that the language 
 of the grant to Congress made no reference to the instrumentalities by 
 which commerce might be carried on; that it was general, and included 
 alike commerce by individuals, partnerships, associations, and corpora- 
 tions ; and that therefore there was nothing in the fact, that the insurance 
 companies of New York were corporations, which impaired the argument 
 of counsel ; but that its delect lay in the character of the business ; that 
 issuing a policy of insurance was not a transaction of commerce ; that 
 the policies were mere contracts of indemnity against loss by fire and not 
 articles of commerce in any proper meaning of the term. In other 
 words, the court held that the power of Congress to regulate commerce 
 was not affected by the fact that such commerce was carried on by cor- 
 porations, but that a contract of insurance made by a corporation of one 
 state upon property in another state, was not a transaction of inter-state 
 commerce. It would have been outside of the case for the court to have 
 expressed an opinion as to the power of Congress to authorize a foreign 
 corporation to do business in a, state upon the assumption that issuing a 
 policy of insurance was a commercial transaction. And it is impossible 
 to see any bearing of the views, which were expressed, upon the doctrine 
 advanced here, that a corporation of one state, in any way engaged in 
 commerce, can enter another state and do business there without the lat- 
 ter's consent. Let this doctrine be once established, and the greater part 
 of the trade and commerce of every state will soon be carried on by 
 corporations created without it. The business of the country is to a 
 large extent conducted or. controllod by corporations, and it may be, 
 
as was said by this court in the case referred to, "of the highest 
 public interest that the number of corporations in the state should be 
 limited, that they should be required to give publicity to their trans- 
 actions, to submit their affairs to proper examination, to be subject to 
 forfeiture of their corporate rights in case of mismanagement, and that 
 their officers should be held to a strict accountability for the manner in 
 which the business of the corporations is managed, and be liable to sum- 
 mary removal." All these guards against corporate abuses the state 
 would be incapable of taking against a corporation of another state 
 operating a railway or a telegraph line within its borders under the 
 permission of Congress, however extortionate its charges or corrupt its 
 management. The corporation might have a tariff of rates and charges 
 prescribed by its charter, which would be beyond the control of the state ; 
 and thus, by the authority of Congress, a state might be reduced to the 
 condition of having the rates of charges for* transportation of persons and 
 freight and messages within its borders regulated by another state. In- 
 deed, it is easy to see that there will remain little of value in the reserved 
 rights of the states if the doctrine announced in this case be accepted 
 as the law of the land. 
 
 The power vested in Congress to regulate commerce " among the sev- 
 eral states" does not authorize any interference with the commerce which 
 is carried on entirely within a state. " Comprehensive as the word 
 'among' is," says Chief Justice Marshall, " it may very properly be re- 
 stricted to that commerce which concerns more states than one," and 
 "the completely internal commerce of a state, then, may be considered 
 as reserved for the state itself."* That commerce embraces the greater 
 part of the business of every state. Every one engaged in the transpor- 
 tation of property or persons, or in sending messages, between different 
 points within the state, not destined to points beyond it, or in the pur- 
 chase or sale of merchandise within its borders, is engaged in its com- 
 merce ; and the doctrine that Congress can authorize foreign corporations 
 to enter within its limits and participate in this commerce without the 
 state's consent is utterly subversive of our system of local state govern- 
 ment. State control in local matters would thus be impossible. 
 
 The late war was carried on at an enormous cost of life and property 
 that the Union might be preserved ; but unless the independence of the 
 states within their proper spheres be also preserved the Union is valueless. 
 In our form of government the one is as essential as the other; and a 
 blow at one strikes both. The general government was formed for na- 
 tional purposes, principally that we might have within ourselves uni- 
 formity of commercial regulations, a common currency, one postal system, 
 and that the citizens of the several states might have in each equality of 
 right and privilege; and that in our foreign relations we might present 
 ourselves as one nation. But the protection and enforcement of private 
 rights of both persons and property, and the regulation of domestic 
 affairs, were left chiefly with the states, and unless they are allowed to re- 
 main there it will be impossible for a country of such vast dimensions as 
 ours, with every variety of soil and climate, creating different pursuits and 
 conflicting interests in different sections, to be kept together in peace. 
 As long as the general government confines itself to its great but limited 
 
 * Gibbons vs. Ogden, 9 Wheaton, 194-5. 
 
sphere, and the states are left to control their domestic affairs and busi- 
 ness, there can be no ground for public unrest and disturbance. Disquiet 
 can only arise from the exercise of ungranted powers. 
 
 Over no subject is it more important for the interests and welfare of a 
 state that it should have control, than over corporations doing business 
 within its limits. By the decision now rendered, congressional legislation 
 can take this control from the state, and even thrust within its borders 
 corporations of other states in no way responsible to it. It seems to me 
 that, in this instance, the court has departed from long established doc- 
 trines, the enforcement of which is of vital importance to the efficient 
 and harmonious working of our national and state governments. 
 
FOR WHAT CAUSE CAN ATTORNEYS AND COUNSELLORS 
 AT LAW BE DISBARRED ? 
 
 SUPREME COURT OF THE UNITED STATES. 
 
 OCTOBER TERM, 1882. 
 J. B. Wall. 
 
 s ^ n Potion f r a mandamus. 
 
 DISSENTING OPINION OF MR. JUSTICE FIELD. 
 
 I am unable to concur with my associates in their disposition of 
 this case, and I will briefly state the grounds of my dissent. 
 
 I appreciate to the fullest extent the indignation of the district 
 judge at the lawless proceedings of the mob in his district in forci- 
 bly taking a prisoner from jail and putting him to death. There 
 is no language of reprobation too severe for such conduct; for, 
 however great the offence of the prisoner, the law prescribed its 
 punishment and appointed the officers by whom it was to be exe- 
 cuted. The usurpation of their duties, and the infliction of another 
 punishment, were themselves the greatest of crimes, for which the 
 actors should be held amenable to the violated laws of the state. 
 
 I join, also, with the learned justice of this court who expresses 
 the views of the majority, in his denunciation of all forms of law- 
 less violence; and I agree with him that the enormity of the of- 
 fence is increased, when the violence is aided and encouraged 
 by an attorney, bound by his oath of office to uphold the admin- 
 istration of justice in the established tribunals- of the country. N"or 
 can the offence be palliated by the statement of counsel, that the 
 fury of the mob had been excited by the attempt of the victim of 
 its violence to outrage the person of a young female. 
 
 The question here is, not what indignation may justly be ex- 
 pressed for the alleged offence of the victim, or for that of his as- 
 sailants; nor what should be done with a person thus guilty of par- 
 ' ticipating in and encouraging the lawless proceedings of the mob, 
 but in what way is his guilt to be determined; when does the law 
 declare him guilty, so that the court may upon such established 
 guilt proceed to inflict punishment for the offence and remove 
 him from the bar. 
 
 I do not think that the Circuit Court of the United States could 
 declare the petitioner in this case guilt} 7 of a crime against the laws 
 of Florida upon information communicated to its judge on the 
 streets, and thereupon cite him to show cause why he should not 
 be stricken from the roll of attorneys of the court and be dis- 
 barred from practicing therein. 
 
And though the declaration of the court, upon what was as- 
 sumed to have been the conduct of the petitioner, contained in 
 the recital of the order directing the citation, be treated, contrary 
 to its language, merely as a charge against him, and not as a judg- 
 ment upon his conduct, I cannot think that the court had authority 
 to formulate a charge against him of criminal conduct not con- 
 nected with his professional duties, upon the verbal statements of 
 others, made to its judge outside of the court and without the 
 sanction of an oath. And I cannot admit that upon a charge 
 thus formulated the petitioner could be summarily tried. In jio 
 well ordered system of jurisprudence, by which justice is admin- 
 istered, can a person be tried for a criminal offence by a court, 
 the judge of which is himself the accuser. 
 
 The first proceeding disclosed by the record is the following 
 order: 
 
 " Circuit Court of the ' U. S., Southern District of Florida, 
 March Term, 1882. 
 
 " Whereas it has come to the knowledge of this court that one 
 J. B. Wall, an attorney of this court, did, on the sixth day of this 
 present month, engage in and with an unlawful, tumultuous, and 
 riotous gathering, he advising and encouraging thereto, to take 
 from the jail of Hillsborough County, and hang by the neck until 
 he was dead, one John, otherwise unknown, thereby showing such 
 an utter disregard and contempt for the law and its provisions, 
 which, as a sworn attorney, he was bound to respect and support, 
 as shows him to be totally unfitted to occupy such position: It is 
 hereby ordered that said J. B. Wall be cited to appear and show 
 cause, by eleven o'clock Wednesday, the eighth instant, why his 
 name should not be stricken from the roll of attorneys, and he be 
 disbarred and prohibited from practicing herein. 
 
 " JAMES W. LOCKE, 
 
 " TAMPA, FLORIDA, March 7, 1882. District Judge." 
 
 How these matters came to the knowledge of the court is not 
 here disclosed, but in the return of the judge to the alternative 
 writ of mandamus from this court we are enlightened on this 
 point. He states that on the 6th of March, 1882, on the ad- 
 journment of the court for dinner, in passing from the court- 
 house he saw a person brought to the jail by two officers; that on 
 his return to the court-house^ a little over an hour afterwards, he 
 saw the dead body of the prisoner hanging from a tree in front of 
 the court-house door, whereby he became personally informed of 
 the commission of a most serious offence against the laws. He 
 also states that on the same afternoon " he was informed of the 
 active participation in said crime of one J. B. Wall, an attorn ey 
 of said court, by an eye-witness in whom the most implicit confi- 
 dence could be placed, but who declined to make any charge or 
 affidavit of such fact on account of a fear of said Wall's influence 
 
and the local feeling it would cause against him, the said witness; 
 that not only from the direct statements of eye-witnesses, but 
 from numerous other sources, reliable information of like import 
 was received; whereupon said J. JB. Wall, the petitioner, was, on 
 the said seventh day of March, during a session of the Circuit 
 Court of the United States, in open court, charged in writing by 
 the respondent herein, as judge, with having, with an unlawful, 
 tumultuous, and riotous gathering, he advising and encouraging 
 thereto, taken from the jail of Hillsborough County, and hanged 
 to-a tree by the neck until he was dead, a man to the court known 
 only as John." 
 
 Here we have the words of the judge himself, that he acted 
 upon the statements of parties, whose names are not given, nor is 
 their language. His own conclusions as to their import, credibil- 
 ity, and weight are all that is furnished. The statements thus 
 made to him were not evidence before the court for any purpose 
 whatever; and would not justify its action upon any subject over 
 which it has jurisdiction. Suppose that he was called to the 
 stand, and asked why he had made the charge against the petitioner, 
 and what his knowledge was on the subject. He could only have 
 answered, ' I can state nothing of my own knowledge; I can 
 merely repeat what others have said to me; they decline to make 
 any charge themselves; they will not confront the accused; but I 
 have implicit confidence in their statements, though they will not 
 verify them by oath.' And yet, upon these outside, ex-parte, unsworn 
 sayings of others, who will not face the accused and whose words 
 are not given, he directs an order to be entered in the circuit 
 court reciting not that the petitioner is charged by others, 
 not that it appears by the sworn reports of eye-witnesses, but 
 that "it has come to the knowledge of the court" that the 
 petitioner had engaged in " an unlawful, tumultuous, and riotous 
 gathering, he advising and encouraging " the same, to take a 
 person from the county jail and hang him by the neck until he 
 was dead, thus showing an utter disregard and contempt for the 
 law and its provisions, and himself to be totally unfitted to occupy 
 the position of an attorney of the court. 
 
 This is not a charge against the petitioner either in form or lan- 
 guage, but a declaration of his guilt in advance of a hearing, 
 founded upon what is termed " knowledge of the court." For this 
 declared guilt he is summoned to show cause why he should not be 
 disbarred" According to the return of the judge, the recital in 
 the order is not correct. No such matter as is there stated ever 
 came, in any legal way, to the knowledge of the court. Informa- 
 tion which he gathered in conversation with others, rumors on 
 the streets, statements communicated outside of the court-room, 
 secret whisperings of men who dare not or will not speak openly 
 and verify their statements, do not constitute such " knowl- 
 edge of the court " as to make it the basis of judicial proceedings 
 
affecting any one's rights. Were not this the case, no man's rights 
 would be safe against the wanton accusation of parties on the 
 streets, whose stories might reach the ear of the judge- 
 
 The petitioner appeared upon the citation, and objected to the 
 authority and jurisdiction of the court to issue the rule and require 
 him to answer it, first, because the rule did not show that the mat- 
 ters there charged took place in the presence of the court, or were 
 brought to its knowledge by petition or complaint in writing, un- 
 der oath; and, second., because he was charged in the rule with a 
 high crime against the laws of Florida, not cognizable by the 
 court, and for which, if proven, he was liable to indictment and 
 prosecution before the state court. 
 
 The petitioner also denied counselling, advising, encouraging, or 
 assisting an unlawful, tumultuous, and riotous gathering, or mob, 
 in taking the person named from the jail of the county and caus- 
 ing his death by hanging, or that he had been guilty of any un- 
 professional or immoral conduct which showed him to be unfit for 
 the position of an attorney of the court. 
 
 The court overruled the objections, and called a witness to 
 prove the participation of the prisoner in the crime alleged. 
 The testimony of this witness, which was reduced to writing, 
 is contained in the record. It is to the effect that he saw the 
 petitioner and others go to the sheriff's house on the 6th of 
 March, and, having heard that a sheriff's posse had been sum- 
 moned to protect the jail, he thought, by their orderly manner, 
 that they were the posse going for instructions; that when they 
 came out he heard one of the party remark " we have got all of 
 you we want"; that he then thought something was wrong, and 
 followed them, and saw them coming out of the jail with the pris- 
 oner; that the petitioner was with the prisoner, walked beside 
 him, and, witness thinks, had hold of him until they crossed the 
 fence, that after that he did not see the petitioner any more until 
 the matter was all over. The witness further testified that he 
 could not name any man in the crowd, which numbered over a 
 hundred, except the sheriff; that he was excited and did not no-' 
 tice who they were. He did not see the petitioner leave the 
 crowd, though he might have done so without the witness seeing 
 him. Upon this uncertain, insufficient, and inconclusive testi- 
 mony, which does not show a participation of the petitioner in 
 "advising and encouraging-" the lawless proceedings, and is con- 
 sistent with his opposition to them, the judge was entirely satis- 
 fied. His language on the subject is: 
 
 " That the evidence, although of but a single witness, for grounds 
 already stated, was to your respondent positively conclusive be- 
 yond a reasonable doubt that said J. B. Wall had been guilty of 
 active participation in a most immoral and criminal act, and a 
 leader in a most atrocious murder, in defiance and contempt of all 
 law and justice, and thereby shown himself unfitted to longer re- 
 
tain the position of an attorney in any court over which your re- 
 spondent might have the honor to preside." 
 
 Nothing could more plainly illustrate the wisdom of the rule 
 that the accuser should not be the judge of the accusation. The 
 judge very naturally felt great indignation at the lawless proceed- 
 ings of the mob in hanging the prisoner, and, as he states, had 
 heard reports inculpating the petitioner as a participant therein. 
 His indignation, whether arising from such reported participation 
 or otherwise, must have possessed him when he had the petitioner 
 'before him, for nothing else can explain the extraordinary con- 
 clusion he reached upon the testimony taken. That testimony 
 shows merely a mingling of the petitioner with the crowd en- 
 gaged in the unlawful purpose; it does not necessarily show his 
 participation in the execution of that purpose. There was no evi- 
 dence that he encouraged the proceedings. There was no evi- 
 dence as to what he did say to the crowd. He may have advised 
 against their action. The witness said nothing on the subject, 
 nor did he see the petitioner after the crowd reached the fence. 
 The petitioner was not seen at the execution, nor is there any evi- 
 dence that he was present; and yet, the vague testimony of this 
 excited witness, as to matters entirely consistent with innocence, 
 is held by the judge " to be positively conclusive beyond a reason- 
 able doubt" that the petitioner was guilty of active participation 
 in a criminal act and " a leader in a most atrocious murder." 
 
 There are some other things also in the return of the judge 
 which are outside of the record of proceedings in the circuit court, 
 and inconsistent with them, as that the petitioner demanded that 
 proof should be made of the matter charged. His main position 
 was that the court had no jurisdiction to require him to answer at 
 all, because charged in the rule with a crime against the laws of 
 Florida, not cognizable in that court, and for which, if proven, he 
 was liable to indictment and conviction in the state court, a po- 
 sition inconsistent with a demand of proof of the charge. 
 
 Objection is taken here though not taken in the court below 
 to the form of the petitioner's denial to what is termed the charge 
 of the judge, it being called by my brethren a negative pregnant. 
 This is, indeed, a singular objection, in view of the fact that there 
 was, in truth, as already said, no formal charge against the peti- 
 tioner. The court assumed, and declared that it had come to its 
 knowledge, that he was guilty of a public offence which unfitted 
 him to be an attorney, and called upon him to show cause why he 
 should not be disbarred for it. If the court had such knowledge 
 a denial by him was useless, and the taking of testimony on 
 the subject an idle proceeding. He might have replied to the 
 judge who constituted the court : " Who made you a judge to 
 affirm my guilt, in advance of hearing, upon street rumors ? I 
 decline to answer you at all, you having thus prejudged and 
 condemned me." With what propriety could the court have then 
 
proceeded ? What legal reason could it have given for its action ? 
 I am unable to perceive that it could have given any. 
 
 Treating, however, the preannounced judgment of the court as 
 a charge, the answer of the petitioner might have been more 
 general than it was. It was sufficiently specific to meet all the 
 rules of pleading in criminal cases; and I do not think that the 
 nicety exacted in an answer to a bill of discovery in a chancery 
 suit was required. It was enough that the answer was a denial of 
 the offence alleged, and could in no way be tortured into any 
 admission of guilt. 
 
 But apart from the consideration of the form of the petitioner's 
 answer, or the weight to be given to the evidence of the excited 
 witness, I cannot assent to the doctrine that, by virtue of any power 
 which a court possesses over attorneys, it can try one for a felony 
 upon a proceeding to disbar him. The Constitution of the United 
 States and of every state has made it a part of the fundamental 
 law of the land that " no person shall be held to answer for a capi- 
 tal or otherwise infamous crime unless on a presentment or indict- 
 ment of a grand jury," except in cases arising in the land or naval 
 forces, or in the militia, when in actual service, in time of war or 
 public danger. A felony is an infamous crime. No person 
 charged therewith can be held to answer therefor, that is, can, in 
 any other form of proceeding, be required to explain his conduct 
 or vindicate his action. This provision excludes an inquiry, and, 
 of course, any possible punishment for an imputed crime, except 
 upon a conviction under such presentment or indictment. If 
 a party is otherwise tried and punished, the constitutional guar- 
 anty is violated in his person. 
 
 If one court can, upon information communicated to its judge, 
 in any other than a legal way, that a public offence has been com- 
 mitted by an attorney, call upon him to show satisfactorily that 
 the charge is unfounded or be disbarred, so may all courts which 
 have the power to admit attorneys, and, of course, this court. 
 And what a spectacle would be presented if, upon reports like 
 those in this case, or even upon written charges, that attor- 
 neys in different parts of the country have committed murder, 
 burglary, forgery, larceny, embezzlement, or some other public 
 offence, they could be cited here to answer summarily as to such 
 charges without being confronted by their accusers, without pre- 
 vious indictment, without- trial by jury, and, of course, without 
 the benefit of the presumptions of innocence which accompany 
 every one until legally convicted. With what curious and won- 
 dering eyes would such proceedings be watched, when A should 
 be summoned from one part of the country on a charge of murder, 
 13 from another part of the country on a charge of burglary, 
 from another part on a charge of larceny. D from still another 
 on a charge of having violated his marriage vows, and others on 
 charges embracing different felonies! Such proceedings would be 
 
scandalous, and would shock every one who regards with favor the 
 guarantees of personal rights in the Constitution. They would not 
 and ought not to be tolerated by the country; and yet how would 
 they differ from the case before us ? It is no excuse to say that the 
 punishment inflicted upon the petitioner is not that prescribed by the 
 law for the public offence charged, and that it is only the latter which 
 requires previous presentment or indictment. The Constitution 
 declares that "no person shall be held to answer " for any in- 
 famous offence, that is, to explain and justify his conduct upon 
 such a charge, except when made by the presentment or indict- 
 ment of a grand jury, without reference to the punishment that 
 m&y follow on its being established. That instrument looks to 
 the substance of things," and not to mere forms. Its purpose is to 
 protect every one against wanton complaints of the commission of 
 a public offence. It therefore confides the power of accusation for 
 such an offence to a specially constituted body; and interdicts all 
 trial, and, of course, all punishment, except upon its formal pre- 
 sentation. This interdict would be of little protection if it could 
 be evaded by a mere change in the extent or nature of the pun- 
 ishment. 
 
 In the test oath case from Missouri we have an illustration of an 
 attempt to evade a constitutional inhibition, and of its futility. 
 That state had in 1865 adopted a new constitution, which pre- 
 scribed an oath to be taken by persons filling certain offices and 
 trusts and pursuing various vocations within its limits. They were 
 required to deny that they had done certain things, or by act or 
 word had manifested certain desires and sympathies. The oath, 
 divided into its separate parts, embraced thirty distinct affirmations 
 respecting the past conduct of the affiant, extending even to his 
 words, desires, and sympathies. 
 
 Every person unable to take this oath was declared by the con- 
 stitution incapable of holding in the state " any office of honor, 
 trust, or profit under its authority, or of being an officer, council- 
 man, director or trustee, or other manager of any corporation, 
 public or private, now existing or hereafter established by its 
 authority, or of acting as a professor or teacher in any educational 
 institution, or in any common or other school, or of holding any 
 real estate or other property in trust for the use of any church, re- 
 ligious society, or congregation." 
 
 And every person, at the time the constitution took effect, 
 holding any of the offices, trusts, or positions mentioned, was re- 
 quired, within sixty days thereafter, to take the oath; and, if he 
 failed to comply with this requirement, it was declared that his 
 office, trust, or position should ipso facto become vacant. 
 
 N"o person, after the expiration of the sixty days, was permit- 
 ted, without taking the oath, " to practice as an attorney or coun- 
 sellor-at-law," nor after that period could " any person be compe- 
 tent, as a bishop, priest, deacon, minister, elder, or other clergy- 
 
man, of any religious persuasion, sect, or denomination, to teach, 
 or preach, or solemnize marriages." 
 
 Fine and imprisonment were prescribed as a punishment for 
 holding or exercising any of " the offices, positions, trusts, pro- 
 fessions, or functions " specified, without having taker* the oath ; 
 and false swearing or affirmation in taking it was declared to he 
 perjury, punishable by imprisonment in the penitentiary. 
 
 A priest of the Roman Catholic church was indicted in a circuit 
 court of Missouri and convicted of the crime of teaching and 
 preaching as a priest and minister of that religious denomina- 
 tion, without having first taken the oath, and was sentenced to pay 
 a fine of five hundred dollars, and to be committed to jail until the 
 same was paid. On appeal to the supreme court of the state the 
 judgment was affirmed and the case was brought on error to this 
 court. It was plain that if the power existed in the state to exact 
 from parties this oath respecting their past conduct, desires, arid 
 sympathies, as a condition of their being permitted to continue in 
 their vocations, or to hold certain trusts, it might be used, and, on 
 occasions of excitement to which all communities are subject, would 
 be used to their oppression and even ruin. The state might 
 require such oath for any period of their past lives, might call 
 upon them to affirm whether they had observed the ten com- 
 mandments, or had discharged any particular civil or moral duty, 
 or had entertained any particular sentiments, or desires, or sjmipa- 
 thies, as a condition of their being allowed to engage in one of 
 the ordinary pursuits of life, in a profession, trade, or business. It 
 might impose conditions which individuals and whole classes in the 
 community would be unable to comply with, and thus deprive 
 them of civil and political rights, Under this form of legislation 
 no oppression can be named which might not have been effected. 
 
 A large portion of the people of Missouri were unable to take 
 the oath. It was, therefore, contended that the clauses of its con- 
 stitution which required priests and clergymen to take and sub- 
 scribe the oath as a condition of their being allowed to continue 
 in the exercise of their professions, and preach and teach, op- 
 erated upon those who could not take it as a bill of attainder 
 within the meaning of the provision of the federal Constitution 
 prohibiting the states from passing bills of that character. With 
 respect to them the clauses amounted to a legislative deprivation 
 of their rights. 
 
 It was also contended that in thus depriving priests and clergy- 
 men of the right to preach and teach, the clauses imposed a pen- 
 alty for some acts which were innocent at the time they were com- 
 mitted, and increased the penalty for other acts which at the time 
 constituted public offences, and in both particulars violated the 
 provision of the federal Constitution prohibiting the passage by 
 the states of an ex post facto law. 
 
 On the other hand, it was contended that the provisions of the 
 
9 
 
 constitution of Missouri exacting the oath mentioned, merely pre- 
 scribed conditions upon which members of the political body might 
 exercise their various callings; that bills of pains and penalties, 
 which are included under the head of bills of attainder, and ex 
 post facto laws, are such as relate exclusively to crimes and their 
 punishments; that they are in terms acts defining and punishing 
 crimes and designating the persons to be affected by them, and 
 do not bear any resemblance to the provisions of the constitution 
 of Missouri. 
 
 There was much force in the objections thus urged to the 
 position that the clauses in the Missouri constitution consti- 
 tuted a bill of attainder and an ex post facto law; and had the 
 court looked to the form rather than to the substance of things, 
 they must have prevailed. But the court did not thus limit 
 its view. It regarded the constitutional guarantees as apply- 
 ing wherever private rights were to be protected against legisla- 
 tive deprivation, whatever the form of the legislation. And it 
 could not perceive any substantial difference between legislation 
 imposing upon parties impossible conditions as to past conduct 
 for the enjoyment of existing rights, and legislation in terms 
 depriving them of such rights, or imposing as a punishment 
 for past conduct the forfeiture of those rights. It therefore 
 adjudged the , clauses of the Missouri constitution in question 
 to be invalid on both grounds urged, as a bill of attainder and an 
 ex post facto law. They accomplished precisely what the most 
 formal enactments of that nature would have done, and were, 
 therefore, in like manner prohibited. " The legal result " said the 
 court, "must be the same, for what cannot be done directly can- 
 not be done indirectly. The Constitution deals with substance, not 
 shadows. Its inhibition was levelled at the thing, not the name. 
 It intended that the rights of the citizen should be secure against 
 deprivation for past conduct by legislative enactment, under any 
 form, however disguised. If the inhibition can be evaded by 
 the form of the enactment, its insertion in the fundamental law 
 was a vain and futile proceeding." 
 
 I have been thus particular in the statement of the Cummings 
 case, for it seems to me that the rule of construction there applied 
 should be extended so as to protect the citizen from answering in 
 any form, or being punished in any way for an infamous offence, 
 except, as the Constitution prescribes, on a presentment or indict- 
 ment of a grand jury. Here, under the form of a civil proceed- 
 ing, a party is summoned to answer, and is punished for an alleged 
 criminal offence, to try which this court has confessedly no juris- 
 diction, and which is in no way connected with his professional 
 conduct. The protection of the Constitution should not be thus 
 lost, though the punishment be not one prescribed by statute, 
 but one resting in the discretion of the court. I know, of course, 
 that this court has, with the exception of two of its members, been 
 2 
 
10 
 
 entirely changed in its personnel since the Curnmings case was 
 decided. I am the only living member of the majority of the 
 court which, sixteen years ago, gave that judgment. I would 
 fain hope, however, that this "change may not lead to a change 
 in the construction of clauses in the Constitution intended for 
 the protection of personal rights, even though its present mem- 
 bers, if then judges, might not have assented to the decision, 
 and however much they may be disposed to follow their own 
 peculiar views where rights of property only are involved. 
 I am of opinion that all the guarantees of the Constitution de- 
 signed to secure private rights, whether of person or property, 
 should be broadly and liberally interpreted so as to meet and pro- 
 tect against every form of oppression at which they were aimed, 
 however disguised and in whatever shape presented. The} 7 ought 
 not to be emasculated and their protective force and energy frit- 
 tered away and lost by a construction which will leave only the 
 dead letter for our regard when the living spirit is gone. 
 
 What, then, are the relations between attorneys and counsellors- 
 at-law and the courts; and what is the power which the latter 
 possess over them; and under what circumstances can they be dis- 
 barred ? There is much vagueness of thought on this subject in 
 discussions of counsel and in opinions of courts. Doctrines are 
 sometimes advanced upholding the most arbitrary power in the 
 courts, utterly inconsistent with any manly independence of the 
 bar. The books, unfortunately, contain numerous instances where, 
 for slight offences, parties have been subjected to oppressive fines, 
 or deprived of their offices, and, consequently, of their means of 
 livelihood, in the most arbitrary and tyrannical manner. The 
 power to punish for contempt a power necessarily incident to all 
 courts for the preservation of order and decorum in their pres- 
 ence was formerly so often abused for the purpose of gratifying 
 personal dislikes, as to cause general complaint, and lead to legis- 
 lation defining the power and designating the cases in which it 
 might be exercised. The act of Congress of March 2, 1831, c. 
 99, limits the power of the courts of the United States in this re- 
 spect to three classes of cases: first, where there has been misbe- 
 havior of a person in the presence of the court or so near thereto 
 as to obstruct the administration of justice; seco'nd, where there 
 has been misbehavior of any officer of the court in his official 
 transactions; and, third, where there has been disobedience or re- 
 sistance by any officer, party, juror, witness, or other person to any 
 lawful writ, process, order, rule, decree, or command of the court. 
 The power, as thus seen so far as the punishment of contempts is 
 concerned can only be exercised by the courts of the United 
 States to insure order and decorum in their presence; faithfulness 
 on the part of their officers in their official transactions; and obe- 
 dience to their lawful orders, judgments, and process. (Ex-parte, 
 Robinson, 19 Wall., 511.) 
 
11 
 
 The power to disbar attorneys in proper cases, though not, per- 
 haps, affected by this law, is not to be exercised arbitrarily or 
 tyrannically. Under our institutions arbitrary power over an- 
 other's lawful pursuits is not vested in any man nor in any tribunal. 
 It is odious wherever exhibited, and nowhere does it appear more 
 so than when exercised by a judicial officer toward a member of 
 the bar practicing before him. 
 
 Attorneys and counsellors-at-law and the two characters are in 
 ' this country generally united in the same person are officers of 
 the court, admitted to be such by its order upon evidence that they 
 possess sufficient learning to advise as to the legal rights of parties, 
 arid to conduct proceedings in the courts for their prosecution or 
 defence, and that they have such fair private characters as to in- 
 sure fidelity to the interests intrusted to their care. The order of 
 admission, as said in the Garland case, is the judgment of the court 
 that they possess the requisite qualifications of learning and char- 
 acter, and are entitled to appear as attorneys and counsellors and 
 to conduct causes therein. Thenceforth they are responsible t9 the 
 court for professional misconduct and entitled to hold their offices 
 during good behavior. (4 "Wall. 387.) 
 
 Their office, as was also said in the same case, is not held as a 
 matter of grace and favor. The right which it confers is some- 
 thing more than a mere license, revocable at the pleasure of 
 the court. It is a right of which they can be deprived only by 
 its judgment for moral or professional delinquency. 
 
 The oath which every attorney and counsellor is required to 
 take on his admission briefly expresses his duties. It is substan- 
 tially this: that he will support the Constitution of the United 
 States, and " conduct himself as an attorney and counsellor of the 
 court uprightly and according to law." This implies not only 
 obedience to the Constitution and laws, but that he will, to the 
 best of his ability, advise his clients as to their legal rights, and 
 will discharge with scrupulous fidelity the duties entrusted to him; 
 that he will at all times maintain the respect due to the courts and 
 judicial officers; that he will conform to the rules prescribed by 
 them for his conduct in the management of causes; that he will 
 never attempt to mislead them by artifice or any false statement 
 of fact or intentional misstatement of the law, and will never em- 
 ploy any means for the advancement of the causes confided to 
 him except such as are consistent with truth and honor. So long 
 as he carries out these requirements of his oath he will come 
 within the rule of " good behavior," and no complaint of his pro- 
 fessional standing can be made. The authority which the court 
 holds over him and the exercise of his profession extends so 
 far, and so far only, as to insure a compliance with these require- 
 ments. It is for a disregard of them, therefore, that is, for pro- 
 fessional delinquency and the loss of character for integrity and 
 trustworthiness, that is, for moral delinquency, which a disregard 
 
12 
 
 of them manifests, that the court will summarily act upon his 
 office and disbar him. In other words, the summary jurisdiction 
 of the court in this respect will only be exercised: first, for mis- 
 conduct of the attorney in cases and matters in which he has 
 been employed or consulted professionally, or matters in which, 
 from their nature, it must be presumed he was employed by 
 reason of his professional character; and, second, for such miscon- 
 duct outside of his profession as shows the want of that integrity 
 and trustworthiness which is essential to insure fidelity to interests 
 entrusted to him professionally. The commission of a felony or a 
 misdemeanor involving moral turpitude is of itself the strongest 
 proof of such misconduct as will justify an expulsion from the 
 bar; but the only evidence which the court can receive of the 
 commission of the offence, when it is not admitted by the party, 
 is a record of his conviction. Of this I shall presently speak. 
 
 When the charge against the attorney is of misconduct in his of- 
 fice, and that involves, as it sometimes may, the commission of a 
 public offence, for which he may be prosecuted criminally, the in- 
 quiry should proceed only so far as to determine the question of pro- 
 fessional delinquency, and he should be left to the proper tribunals 
 for the punishment, of the crime committed. And on such an in- 
 quiry no answer will be required of him which would tend to his 
 crimination. Thus, to illustrate, if he has collected money for 
 his client, and has not paid it over, the court, upon appropriate 
 complaint, will order him to be cited to show cause why he 
 should not pay it. If, upon the citation, a sufficient reason is not 
 given for the retention of the money, the court will enter an 
 order directing him to pay it immediately or by" a day desig- 
 nated. Should he still refuse, he may then be disbarred for diso- 
 bedience to the order and for the professional delinquency thereby 
 involved; but for the offence of embezzlement or other crime, 
 committed in the retention of the money, he will be turned over 
 to the criminal courts. Or, take the case suggested on the argu- 
 ment: should an attorney, in the course of a trial, get into a per- 
 sonal collision with the opposing counsel or with a witness, and 
 assault him with a deadly weapon, or kill him, the court would 
 undoubtedly require the offender to show cause why he should 
 not be expelled from the bar for the violence, disturbance, 
 and breach of the peace committed in its presence. It would be 
 sufficient to justify expulsion that he had so far forgotten the pro- 
 prieties of the place and the respect due to the court as to engage 
 in a violent assault in its presence. But for the trial of the offence 
 of committing a deadly assault, or for the homicide, he would be 
 turned over to the criminal courts. Or, take another case men- 
 tioned on the argument, where an attorney has presented a false 
 affidavit, or reprcsanted as genuine a fictitious paper. The use of 
 such documents, knowing their character, is a fraud upon tli 
 court, an attempt to deceive it, and constitutes such professional 
 
13 
 
 misconduct as to justify the imposition of a heavy fine upon him 
 or his temporary suspension or expulsion from the bar, without 
 reference to the materiality of the contents of the false affidavit 
 or of the fictitious paper; but for the crimes involved in their 
 use he should be sent to the proper tribunals, because he cannot 
 be tried therefor, on a motion to punish him for a contempt or to 
 disbar him. 
 
 It is because of this limitation upon the extent of judicial 
 enquiry into such matters that a proceeding for purely profes- 
 sional misconduct against an attorney may be taken in any way 
 which will sufficiently apprise him of the grounds upon which it is 
 founded, and afford him an opportunity to be heard. It is not as 
 thus limited a criminal proceeding in any proper sense, requiring 
 full and formal allegations with the precision of an indictment. 
 As said in Randall vs. Brigham, where a letter of a party de- 
 frauded, laid before a grand jury and communicated by its direc- 
 tion to the court, was the foundation of proceedings against an at- 
 torney: "Such proceedings are often instituted upon information 
 developed in the progress of a cause, or from what the court learns 
 of the conduct of the attorney from its own observation. Some- 
 times they are moved by third parties upon affidavit, and some- 
 times they are taken by the court upon its own motion. All that 
 is requsite to their validity is that when not taken for matters oc- 
 curring in open court, in the presence of the judges, notice shall 
 be given to the attorney of the charges made, and opportunity 
 afforded him for explanation and defence. The manner in which 
 the proceeding shall be conducted, so that it be without oppression 
 or unfairness, is a matter of judicial regulation." (7 Wall., 540.) 
 The objection here is that this recognized limitation upon judicial 
 inquiry in such cases is exceeded, and the civil proceeding is 
 made the means of inflicting punishment for a criminal offence 
 in no way connected with the party's professional conduct. 
 
 When the proceeding to disbar an attorney is taken for miscon- 
 duct ouside of his profession the inquiry should be confined to 
 such matters, not constituting indictable offences, as may show him 
 unfit to be a member of the bar, that is, as not possessing that in- 
 tegrity and trustworthiness which will ensure fidelity to the interests 
 entrusted to him professionally, and to the inspection of any record 
 of conviction against him for a felony or a misdemeanor involving 
 moral turpitude. It is not for every moral offence which may 
 leave a stain upon character that courts can summon an attorney 
 to account. Many persons, eminent at the bar, have been charge- 
 able with moral delinquencies which were justly a cause of re- 
 proach to them; some have been frequenters of the gaming table; 
 some have been dissolute in their habits; some have been indif- 
 ferent to their pecuniary obligations; some have wasted estates in 
 riotous living; some have been engaged in broils and quarrels dis- 
 turbing the public peace; but for none of these things could the 
 
14 
 
 court interfere and summon the attorney to answer, and if his con- 
 duct should not he satisfactorily explained, proceed to disbar him. 
 It is only for that moral delinquency which consists in a want of in- 
 tegrity and trustworthiness, and renders him an unsafe person to 
 manage the legal business of others that the courts can interfere 
 and summon him before them. He is disbarred in such case for 
 the protection both of the court and of the public. 
 
 A conviction of a felony or a misdemeanor involving moral 
 turpitude implies the absence of qualities which fit one for an 
 office of trust, where the rights and property of others are con- 
 cerned. The record of conviction is conclusive evidence on 
 this point. Such conviction, as already said, can follow only 
 a regular trial upon the presentment or indictment of a grand 
 'jury. It 'cannot follow from any proceeding of the court on 
 a motion to disbar, for the reason already given, that no one 
 can be required to answer for such an offence except in one 
 way. If a party indicted is, upon trial, acquitted, the court can- 
 not proceed to retry him for the offence upon such a motion. 
 He may answer, after acquittal, that he never committed the 
 offence, and that no tribunal can take any legal proceeding against 
 him on the assumption that he had been wrongfully acquitted. And 
 what the court cannot do after acquittal it cannot do by such a 
 proceeding before trial. If the court, after acquittal, can still pro- 
 ceed for the alleged offence, as a majority of my brethren declare 
 it may, and call upon him to show that he is not guilty or be 
 disbarred, there is a defect in our Constitution and laws which 
 has, up to this day, remained undiscovered. Hitherto it has al- 
 ways been supposed that the record of acquittal of a public offence, 
 after a trial by a jury, was conclusive evidence, at all times and 
 in all places, of the party's in-nocence. This doctrine, until to- 
 day, has been supposed to be immovably embedded in our juris- 
 prudence. 
 
 There are many cases in the books where the view I have taken of 
 the authority of the court over attorneys and counsellors-at-law is 
 recognized and acted upon. In an anonymous case in the Supreme 
 Court of New Jersey, given in the reports without a name out of 
 respect to the friends of the party implicated; an application was 
 made on behalf of members of the bar for a rule that a certain at- 
 torney show cause why his name should not be stricken from the 
 rolls, upon an allegation that he had been guilty of larceny. The 
 moving party stated in his application that it was a matter of noto- 
 riety that the attorney had purloined books, to a considerable 
 amount, from persons who were at the time in court and ready ,when 
 called upon, to substantiate the charge. The counsel, therefore, on 
 behalf of members of the bar, called upon the court to relieve them 
 from the reproach of having the man attached to their profession, 
 and from the disgrace of being compelled, in their professional du- 
 ties, to have intercourse with one with whom they would be ashamed 
 
to associate in private life; and that the court had undoubtedly the 
 power to grant the rule, for, as it was essential to the admission of 
 an attorney that he should be of good moral character, it must be 
 equally essential that he should continue to be such. But the 
 Chief Justice, said: " The offence of which it is alleged this man 
 lias been guilty is neither a contempt of court nor does it fall within 
 the denomination of malpractice. It would appear to me, therefore, 
 that he must be first convicted of the crime by a jury of his 
 countrymen before we can proceed against him for such an offence; 
 for, suppose he should be brought to the bar and should say he was 
 not guilty, we could not try the fact." 
 
 The case was then taken under advisement, and at a subsequent 
 day the court said, speaking by the Chief Justice: u We have re- 
 flected upon this case, and do not see how we can do anything in 
 it, because the court seems to be confined to cases of malpractice 
 or to crimes which are in the nature of crimenfalsi, and of which 
 there has been a conviction." Justice Ford, of the court, added: 
 " An attorney may be struck off' the ro\l, first, for a breach of the 
 rules of the court; second, for breach of an} 7 of his official duties; 
 third, for all such crimes and misdemeanors as affect his moral 
 character. But in this third class of cases we cannot proceed in 
 the ordinary way; there ought always to be a previous conviction 
 before this court can interfere. All the cases cited sanction this 
 distinction, except the case from the District of Columbia, which is 
 anomalous." The rule was, therefore refused. (2 Halstead's Law- 
 Reports, 197.) 
 
 In Ex-parte Steinman and Herisel (95 Pa. St., 237) the par- 
 ties, members of the bar of Lancaster County, in Pennsylvania, 
 were editors of a newspaper published in the county. In one of 
 its numbers an article appeared which charged that the judge of 
 the court of quarter sessions of the county had decided a case 
 wrongfully from motives of political partisanship. The court 
 thereupon sent for the parties, and on their appearance they ad- 
 mitted that they were editors of the paper and that as such they 
 were responsible for the publication. The court then entered a 
 rule upon them to show cause why they 'should not be disbarred 
 and their names striken from the roll of attorneys for misbehavior 
 in -their offices. To this rule they answered, setting up, among 
 other things, that if the charge was that they had published a 
 libelous article, it was that they had committed an indictable of- 
 fence, not in the presence of the court, or while acting as its offi- 
 cers, and, therefore, could not be called upon to answer the rule 
 until they should have been tried and convicted, according to law, 
 for the offence; and that the court was not competent to deter- 
 mine in that form of proceeding that they did unlawfully and ma- 
 liciously publish, out of court, a libel upon the court, and to hear 
 and determine disputed questions of fact involving the motives of 
 the parties and the official conduct of the court. The rule, hovy- 
 
16 
 
 ever, was made absolute, and the names of the parties were ordered 
 to be stricken from the roll of attorneys. They then took the case 
 on writ of error to the supreme court of the state, where the 
 judgment was reversed, and it was ordered that the parties be 
 restored to the bar. Chief Justice Sharswood, in delivering the 
 opinion of the court, said: 
 
 " No question can be made of the power of a court to strike a 
 member of the bar from the roll for official misconduct in or out 
 of court. By the seventy-third section of the act of April 14, 
 1834, it is expressly enacted that if any attorney-at-law shall mis- 
 behave himself in his office of attorney he shall be liable to sus- 
 pension, removal from office, or to such other penalties as have 
 heretofore been allowed in such cases by the laws of this com- 
 monwealth. We do not mean to say for the case does not call 
 for such an opinion that there ma} T not be cases of misconduct 
 not strictly professional which would clearly show a person not to 
 be fit to be an attorney, nor fit to associate with honest men. 
 Thus, if he was proved to be a thief, a forger, a perjurer, or guilty 
 of other offences of the crimenfalsi. But no one, we suppose, will 
 contend that for such an offence he can be summarily convicted 
 and disbarred by the court without a formal indictment, trial, and 
 conviction by a jury, or upon confession in open court. Whether 
 a libel is an often ce of such a character may be a question, but 
 certain it is that if the libel in this case had been upon a private 
 individual, or upon a public officer, such even as the district at- 
 torney, the court could not have summarily convicted the defend- 
 ants and disbarred them." 
 
 A similar doctrine obtains in the courts of England. Thus, in a 
 case in 5th Barnewall & Adolphus, 1088, the Solicitor-General of 
 England moved the Court of King's Bench for a rule calling on two 
 attorneys of the court to show cause why they should not be struck 
 off the roll, on affidavits charging them with professional miscon- 
 duct in certain pecuniary transactions. Lord Dennian, the Chief 
 Justice, replied: " The facts stated amount to an indictable of- 
 fence. Is it not more satisfactory that the case should go to a 
 trial? I have known applications of this kind, after conviction, 
 upon charges involving professional misconduct; but we should 
 be cautious of putting parties in a situation where, by answering, 
 they might furnish a case against themselves, on an indictment to 
 be afterwards preferred. 'On an application calling upon an at- 
 torney to answer the matters of an affidavit, it is not usual to 
 grant the rule if an indictable oftence is charged." The court, 
 however, desired the solicitor-general to see if any precedent could 
 be found of such an application having been granted. The solic- 
 itor-general afterwards stated that he had been unable to find any, 
 and the rule was discharged. M} T brethren are mistaken in sup- 
 posing that in this case the attorneys were required to answer 
 under oath the charges made. 
 
17 
 
 And in a case in 3rd Neville & Perry's Reports, 389, a motion 
 was made to the Court of Queen's Bench to strike an attorney oft' 
 the roll on an affidavit alleging a distinct case of perjury by him. 
 The attorney had sworn to the sum of 374 as the expenses of wit- 
 nesses, which was reduced before the master to 47. It was con- 
 tended that the court could exercise its summary jurisdiction on the 
 ground of the perjury. But the Chief Justice replied: "Would 
 not an indictment for perjury lie upon these facts ? We are not 
 in the habit of interposing in such a case, unless there is something 
 amounting to an admission on the part of the attorney which 
 would render the interposition of a jury unnecessary." The mov- 
 ing counsel answered that there was enough in the affidavit to 
 show a distinct case of perjury, but that there was no admission. 
 The rule was, therefore, refused. 
 
 To the same purport are numerous other adjudications, and their 
 force is not weakened by the circumstance that it is also held that 
 it is no objection to the exercise of the summary jurisdiction of 
 the court that the conduct constituting the delinquency, for which 
 disbarment is moved, may subject the party to indictment. When 
 such is the case he is not required to answer the affidavits 
 charging the official delinquency, for no one can be compelled to 
 criminate himself, and the court confines its inquiry strictly to 
 such acts as are inconsistent with the attorney's duty in his pro- 
 fession. It looks only to the professional conduct of the attorney, 
 and acts upon that. 
 
 In Stephens vs. Hill, which was before the Court of Exchequer, 
 a distinction was drawn between the misconduct of an attorney 
 outside of a proceeding in court which might subject him to an 
 indictment, and such misconduct committed by him in a proceed- 
 ing in court. For the former no motion to disbar would be enter- 
 tained; for the latter the motion would be heard. There an at- 
 torney for the defendants had persuaded a material witness for the 
 plaintiff to absent himself from the trial of the cause, and had 
 undertaken to indemnify him for any damage he might sustain 
 for so doing. Upon affidavits disclosing this matter, application 
 was made to disbar the attorney. It was objected that the court 
 would not exercise its summary jurisdiction when the misconduct 
 charged amounts to an indictable offence, as was. the conspiracy 
 in which the attorney was engaged. But the Chief Baron, Lord 
 Abinger, answered that he never understood that an attorney 
 might not be struck. off' the roll for misconduct in a cause in which 
 he was an attorney merely because the offence imputed to him was 
 of such a nature that he might have been indicted for it; that 
 so long as he had been in Westminster Hall he had never heard 
 of such a rule, though the court would not require the attorney to 
 answer the. affidavits. " If, indeed," said the Chief Baron, speak- 
 ing for the court, " a case should occur where an attorney has been 
 guilty of some professional misconduct, for which the court by its 
 3 
 
18 
 
 summary jurisdiction might compel him to do justice, and at the 
 same time has been guilty of something indictable in itself, but 
 not arising out of the cause, the court would not inquire into that 
 with a view of striking him off the roll, but would leave the party 
 aggrieved to his remedy by a criminal prosecution." And, again, 
 " Where, indeed, the attorney is indicted for some matter not con- 
 nected with the practice of his profession of an attornej 7 , that also 
 is a ground for striking him off the roll, although in that case it 
 cannot be done until after conviction by a jury." (10 M. & W., 
 31, 32.) The conduct of the attorney in that case tended to de- 
 feat the administration of justice, and was grossly dishonorable. 
 He had employed for the success of his cause means inconsis- 
 tent with truth and honor. He was, therefore, rightly disbarred 
 without reference to his liabilit}* to a criminal prosecution for his 
 conduct. 
 
 There is no case I have been able to .find, after a somewhat 
 extended examination 'of the reports, where, for an indictable 
 offence, wholly distinct from the attorney's professional con- 
 duct, the commission of which was not. admitted, he has been 
 compelled, in advance of trial and conviction, to show cause why 
 he should not be disbarred, except one in Tennessee for accepting 
 a challenge to fight a duel and killing his antagonist. (Smith vs. 
 Tennessee, 1 Yerger, 228.) This case is exceptional and finds no 
 support in the decisions of the courts of other states. There is no 
 case at all like the one at bar to be found in the reports of the courts 
 of England or of any of the states of the Union. 
 
 In the numerous cases cited in the opinion of my brethren, the 
 matter which was the subject of complaint, and the ground of the 
 action of the court, related to the conduct of the party in his 
 professional business or in business connected with or growing 
 out of his profession. Thus, the advertisement of an attorney that 
 he could procure divorces for causes not known to the law, with- 
 out publicity, or reference to the parties' residence; colluding with 
 a wife to manufacture evidence to procure a divorce; .the misap- 
 plication by him of funds collected; his bribery of witnesses, hiring 
 them to keep out of the way, or to disregard a subpoena; his falsely 
 personating another in legal proceedings; instituting suits without 
 authority; knowingly taking insufficient security; forging an affi- 
 davit to change a venue; substituting the name of his client for 
 his own in an affidavit to-jDroeure alimony; altering a letter to 
 a judge in order to secure the allowance of bail; attempting to 
 make an opposing attorney drunk, in order to obtain an ad- 
 vantage of him on the trial of a cause; obtaining money from a 
 client by false representations respecting the latter's title to 
 lands, and advances for taxes; and many other like matters, 
 which operated as a fraud upon the court and tended to deceive 
 it, and were inconsistent with professional honor and integrity, 
 were very properly considered as sufficient grounds for tempo- 
 
vary suspension or absolute expulsion from the bar. And in this 
 class of cases we sometimes find objections were taken that the 
 offences charged subjected the attorney to liability for indictment, 
 and for that reason should not be considered; and it was in answer 
 to such objections that language was used which apparently con- 
 flicts with the views I have expressed, but not really so when 
 read in connection with the facts. In those cases the conduct 
 of the attorney, even when furnishing ground for indictment, was, 
 independently of its criminal character, open to consideration on 
 a motion to disbar, so far as it affected him professionally; and 
 so it was said that it was no objection to such consideration that 
 he might have been also indicted for the offence committed 
 language which can have no application where the offence, as in 
 this case, had no connection with the party's professional conduct. 
 
 In illustration of this statement I will make a brief refer- 
 ence to some of the cases cited by my brethren and upon 
 which they seem chiefly to rel}'. That of Stephens vs. Hill, in 
 the Court of Exchequer, already explained, confirms what I have 
 said. There, while holding that the fact that the matter complained 
 of might subject the attorney to an indictment would not prevent 
 an enquiry into it, so far as it affected his professional conduct, 
 Lord Abinger takes particular pains to say, as appears from the 
 quotation from his opinion which I have given, that where the 
 matter is not connected with the practice of the attorney's profes- 
 sion, though it might be ground for striking him from the roll, 
 " in that case it cannot be done until after conviction by a jury." 
 
 In the matter of Francis Blake, (3 Ellis & Ellis, Queen's Bench, 
 34,) the court held that its summary jurisdiction over its attor- 
 neys is not limited to cases in which they have been guilty of 
 misconduct, such as amounts to an indictable offence, or arises in 
 the ordinary course of their professional practice, but extends to 
 all cases of gross misconduct on their part, in any matter in which 
 they may, from its nature, be fairly presumed to have been em- 
 ployed in .consequence of their professional character. In that 
 case money had been lent to an attorney, previously known and 
 employed as such, upon his note, and a deed of assignment of a 
 mortgage on an estate in Ireland, by which a greater amount was 
 secured to him. The estate getting into the Irish Encumbered 
 Estates Court, the attorney borrowed the deed -from his creditor 
 for the purpose, as alleged, of supporting his claim in that court, 
 but in reality in order to obtain the payment of the amount 
 secured to him. Having established his right to that payment, 
 he returned the deed to the creditor, and afterwards received 
 the whole amount secured and appropriated it to his own use. 
 It is with reference to these facts that Chief Justice Cockburn 
 uses the language quoted by my brethren. He said that al- 
 though Blake applied to the lender in the first instance, as an 
 attorney, he thought the transaction had ultimately resolved 
 
20 
 
 itself into a mere loan between them as individuals. Bnt the 
 transaction had evidently grown out of their former relation as 
 attorney and client. Mr. Justice Crampton, in concurring with 
 the Chief Justice, said: " In the present case, I cannot say that 
 Blake's fraud was not committed in a matter connected with his 
 professional character. If lie did not act in it as an attorney, he 
 at all events took advantage of his professional position to de- 
 ceive Beevirs" (the lender). 
 
 In Re Hill, (Law Reps., 3 Q. B., 543,) an attorney, acting as a 
 clerk to a firm of attorneys, in completing the sale of certain 
 property, received the balance of the purchase-money and ap- 
 propriated it to his own use. On affidavits stating the facts, a 
 motion was made to strike him off the rolls. He admitted 
 the misappropriation and was accordingly suspended for twelve 
 months. Said Chief Justice Cockburn: "In this case, if the de- 
 linquent had been proceeded against criminally upon the facts 
 admitted by him, it is plain that he would have been convicted of 
 embezzlement, and upon that conviction being brought before us 
 we should have been bound to act. If there had been a conflict 
 of evidence upon the affidavits that might be a very sufficient 
 reason why the court should not interfere until the conviction had 
 taken place; but here we have the person against whom the ap- 
 plication is made admitting the facts." It is difficult to see the 
 pertinency of this decision to the position taken by my brethren. 
 These two cases are, in the language used, the strongest to be 
 found in the reports on that side; but their facts give it no 
 strength whatever. 
 
 In Penobscot Bar vs. Kimball, (o4 Me., 140,) the attorney had 
 been convicted of forging a deposition used by him in a suit 
 against his wife for a divorce; arid though pardoned for the crime, 
 the fraud upon the court remained, and for that and for other dis- 
 reputable practices and professional misconduct, rendering him 
 " unfit and unsafe to be entrusted with the powers, duties, and 
 responsibilities of the legal profession," he was disbarred. 
 
 In Delano's case, (58 5. H., 5,) where an attorney was disbarred 
 by the Supreme Court of ^ew Hamshire for wrongfully appropri- 
 ating to his own use money of a town received by him as a col- 
 lector of taxes, the commission of the offence was admitted. This 
 is evident from the statement of the court in its opinion that " he 
 and his wife and family -did what they could to make good the 
 loss to the town but with only partial success." 
 
 In Perry vs. State of Iowa, (3 Greene's Rep., 550,) the false 
 swearing charged as one of the grounds of complaint against the 
 attorney was committed in a cause managed by him, in which he 
 voluntarily appeared as a witness, thus practicing a fraud upon 
 the court by employing to sustain his cause means inconsistent 
 with truth and honor. 
 
 In Ex-parte Wells, (64 Ind.,461.) the attorney had forged an 
 
21 
 
 affidavit to obtain a change of venue, and had thus grossly im- 
 posed upon the court. For this imposition, independently of the 
 crime committed, he was properly disbarred. 
 
 In Ex-parte Burr, (2 Crarich C. C., 380,) the charges against 
 the attorney were for malpractice in his profession, in advising a 
 person in jail, who was either a recognized witness or a defendant 
 for whom some person was special bail, to run away; instituting 
 suits against parties, and appearing for parties without authority; 
 bringing vexatious and frivolous suits, many of them for persons 
 utterly insolvent; purchasing a lot at a trustees sale of an in- 
 solvent's estate under unfair circumstances; making fictitious 
 claims and bringing suits with a view to extort money; and taking 
 a bill of sale from one about to be distrained for rent to prevent 
 such distress. These charges having been sustained, the attorney 
 was rightly suspended from practice for one year. 
 
 In Re John Percy, (36 N. Y., 651,) there were several charges 
 against the attorney, such as that his general reputation was bad; 
 that he had been several times indicted for perjury, one or more 
 of which indictments were pending; that he was a common mover 
 and maintainer of suits on slight and frivolous pretexts; and that 
 his personal and professional reputation had been otherwise im- 
 peached in a trial at the circuit. But the court appears to have 
 based its action upon the character of the attorney as a vexations 
 mover of suits on frivolous grounds. " He was crowding the cal- 
 endar," said the court, " with vast numbers of libel suits in his 
 own favor, and in the habit of indicating additional libel suits up- 
 on the answers to those previously brought by him. In one in- 
 stance, at least, he had sued his client in a justice's court, and when 
 beaten upon trial, instead of appealing from the judgment he 
 commenced numerous other suits against him in different forms 
 for the same cause, when he must have known that the demand 
 was barred by the first judgment rendered. The only inquiry is 
 whether, in such a case, the court has the power to protect the 
 public by preventing such persons from practicing as attorneys 
 and counsellors in the courts of the state, and by that means har- 
 ass its citizens." And the court held that it had the power under 
 a special statute of the state authorizing the removal or suspen- 
 sion of attorneys and counsellors, when guilty of any deceit, mal- 
 practice or misdemeanor; and that its power was not limited to 
 cases where such deceit, malpractice or misdemeanor were prac- 
 ticed or committed in the exercise of the profession only, but un- 
 der the statute extended to cases where there was general bad 
 character and misconduct. 
 
 None of these cases, as is manifest from the statement I have 
 made covers that of an indictable offence, whollj* distinct from the 
 attorney's professional conduct. None of them countenances the 
 extraordinary authority of the courts over attorneys and counsel- 
 lors asserted by my brethren. And, indeed, if the law be that a cir- 
 
cuit court of the United States, upon whisperings in the ear of one 
 of its judges on the streets, or upon information derived from rumor, 
 or in some other irregular way, that an attorney has committed a 
 public offence, having no relation to the discharge of his profes- 
 sional duties, can summon him to answer for the offence in advance 
 of trial or conviction and summarily punish him, it is time the law 
 was changed by statute. Such a power cannot be safely entrusted 
 to any tribunal. It might be exercised under the excitement of 
 passion and prejudice, as the records of courts abundantly show. 
 Its maintenance would tend to repress all independence on the 
 part of the bar. Men of high honor would hesitate to join a 
 profession in which their conduct might be subjected to inves- 
 tigation, censure, and punishment from imputations and charges 
 thus secretly made. 
 
 Seeing that this must be the inevitable result of such an un- 
 limited power of the court over its attorneys, my brethren are 
 careful to express the opinion that it should seldom be exercised, 
 when the offence charged against the attorney is indictable, until 
 after trial and conviction, unless its commission is admitted. 
 
 But the possession of the power being conceded, and its. exer- 
 cise, being discretionary, there is in the hands of an unscrupu- 
 lous, vindictive, or passionate judge, means of oppression and 
 cruelty which should not be allowed in any free government. 
 To disbar an attorney is to inflict upon him a punishment of the 
 severest character. He is admitted to the bar only after years of 
 study. The profession may be to him the source of great emolu- 
 ment. If possessed of fair learning and ability he may reasonably 
 expect to receive from his practice an income of several thousand 
 dollars a year equal to that derived from a capital of one or more 
 hundred thousand dollars. To disbar him having such a practice 
 is equivalent to depriving him of this capital. It would often 
 entail poverty upon himself, and destitution upon his family. 
 Surely the tremendous power of inflicting such a punishment should 
 never be permitted to be exercised unless absolutely necessary to 
 protect the court and the public from one shown by the clearest- 
 legal proof to be unfit to be a member of an honorable profession. 
 
 To disbar an attorney for an indictable offence not connected 
 with his professional conduct, before trial and conviction, is also to 
 inflict an additional wrong upon him. It is to give the moral 
 weight of the court's judgment against him upon the trial on an 
 indictment for that offence. 
 
 I am of opinion, therefore, that the prayer of the petitioner 
 should be granted, and a peremptory mandamus directed to the 
 circuit court to vacate the order of expulsion and restore him to 
 the bar. The writ is the appropriate remedy in a case where the 
 court below, in disbarring an attorney, has exceeded its jurisdic- 
 tion. (Ex-parte Bradley, 7 Wall. ,364; Ex-parte Robinson, 19 Id., 
 506.) 
 
POWERS AND DUTIES 
 
 OF 
 
 GRAND JURIES 
 
 IN THE 
 
 COURTS OF THE UNITED STATES. 
 
 CHARGE TO THE GRAND JURY 
 
 OF THE 
 
 U. S. CIRCUIT COURT, DTSTRICT OF CALIFORNIA, 
 August 26, 1872, 
 
 BY 
 
 MR. JUSTICE FIELD, 
 
 o/ the Supreme Court of the United States. 
 
POWERS AND DUTIES 
 
 OF 
 
 GRAND JURIES IN THE COURTS OF THE 
 UNITED STATES. 
 
 At a term of the circuit court of the United States for 
 the district of California, held at San Francisco on the 
 26th of August, 1872, a grand jury was empaneled, and 
 to its foreman the following oath was administered : 
 
 " You, as foreman of this inquest for the body of the 
 district of California, do swear that you will diligently 
 inquire, and true presentment make, of such articles, 
 matters and things as shall be given you in charge, or 
 otherwise come to your knowledge, touching the present 
 service. The government's counsel, your fellows, and 
 your own you shall keep secret; you shall present no one 
 for envy, hatred or malice; neither shall you leave any 
 one unpresented for fear, favor, affection, hope of reward 
 or gain, but shall present all things truly as they come to 
 your knowledge, according to the best of your understand- 
 ing. So help you God ! " 
 
 Then to the rest of the grand jurors the following oath 
 was administered: 
 
 " The same oath which your foreman has taken on his 
 part, you and every one of you, shall well and truly ob- 
 serve on your part. So help you God ! " 
 
 Mr. Justice FIELD, the presiding judge, then charged 
 the grand jury as follows: 
 
 Gentlemen of the Grand Jury You are summoned as 
 grand jurors of the circuit court of the United States for 
 
the district of California, and the duties with which you 
 are charged are of the highest importance to the due ad- 
 ministration of justice. By the constitution of the United 
 States, no person can be held to answer for a capital, or 
 otherwise infamous crime, unless on a presentment or in- 
 dictment of a grand jury, except in cases arising in the 
 land or naval forces, or in the militia when in actual 
 service in time of war or public danger. No steps, there- 
 fore, can be taken, with the exceptions mentioned, for the 
 prosecution of any crime of an infamous character and 
 under that designation the whole series of felonies is 
 classed beyond the arrest, examination and commitment 
 of the party accused, until the grand jury have deliberated 
 and acted upon the accusation. Your functions are, 
 therefore, not only, as already stated, important ; they are 
 indispensable to the administration of criminal justice. 
 
 The institution of the grand jury is of very ancient 
 origin in the history of England ; it goes back many cen- 
 turies. For a long period its powers were not clearly de- 
 fined; and it would seem, from the accounts of commen- 
 tators on the laws of that country, that it was at first a 
 body, which not only accused, but which also tried public 
 offenders. However this may have been in its origin, it 
 was, at the time of the settlement of this country, an in- 
 forming and accusing tribunal only, without whose pre- 
 vious action no person charged with a felony could, ex- 
 cept in certain special cases, be put upon his trial.* And 
 
 * There were a few exceptional cases in England in which a party could 
 be arraigned and tried for a felony without the previous action of a grand 
 jury. Thus in a case of death, a party could be arraigned upon the in- 
 quisition of a coroner's inquest. And where the verdict of a jury in a 
 civil case necessarily involved a finding that the defendant was guilty of 
 a public offense, he might sometimes be called upon to answer. Thus, in 
 an action for taking away goods, if the jury found that they were taken 
 feloniously, the verdict might be used as an indictment. So in an action 
 of slander, in which the plaintiff was charged with a criminal offense, 
 and the defendant justified, if the jury found that the justification was 
 true, the plaintiff might be immediately put upon his trial for the crime 
 alleged against him without the action of the grand jury. (See 1 Chitty's 
 Criminal Law, 165.) / 
 
3 
 
 in the struggles which at times arose in England between 
 the powers of the king and the rights of the subject, it 
 often stood as a barrier against persecution in his name, 
 until, at length, it came to be regarded as an institution 
 by which the subject was rendered secure against oppres- 
 sion from unfounded prosecutions of the crown. 
 
 In this country, from the popular character of our in- 
 stitutions, there has seldom been any contest between the 
 government and the citizen, which required the existence 
 of the grand jury as a protection against oppressive action 
 of the government. Yet the institution was adopted in 
 this country, and is continued from considerations similar 
 to those which give to it its chief value in England, and 
 is designed as a means, not only of bringing to trial per- 
 sons accused of public offenses upon just grounds, but also 
 as a means of protecting the citizen against unfounded 
 accusation, whether it comes from government, or be 
 prompted by partisan passion or private enmity. No per- 
 son shall be required, according to the fundamental law 
 of the country, except in the cases mentioned, to answer 
 for any of the higher crimes, unless this body, consisting 
 of not less than sixteen, nor more than twenty -three, good 
 and lawful men, selected from the body of the district, 
 shall declare, upon careful deliberation, under the solem- 
 nity of an oath, that there is good reason for his accusa- 
 tion and trial. 
 
 From these observations, it will be seen, gentlemen, that 
 there is a double duty cast upon you as grand jurors of 
 this district; one a duty to the government, or more prop- 
 erly speaking, to society, to see that parties against whom 
 there is just ground to charge the commission of crime, 
 shall be held to answer the charge; and on the other 
 hand, a duty to the citizen to see that he is not subjected 
 to prosecution upon accusations having no better founda- 
 tion than public clamor or private malice. 
 
 The government has appointed the district attorney to 
 represent its interest in the prosecution of parties charged 
 
with the commission of public offenses against the laws of 
 the United States. He will, therefore, appear before you, 
 and present the accusations which the government may 
 desire to have considered by you. He will point out to 
 you the laws which the government deems to have been 
 violated; and will subpoena for your examination such 
 witnesses as he may consider important, and also such 
 other witnesses as you may direct. 
 
 In your investigations you will receive only legal evi- 
 dence, to the exclusion of mere reports, suspicions and 
 hearsay evidence. Subject to this qualification, you will 
 receive all the evidence presented which may throw light 
 upon the matter under consideration, whether it tend to 
 establish the innocence or the guilt of the accused. And 
 more, if, in the course of your inquiries, you have reason 
 to believe that there is other evidence, not presented to 
 you, within your reach, which would qualify or explain 
 away the charge under investigation, it will be your duty 
 to order such evidence to be produced. Formerly, it was 
 held that an indictment might be found if evidence were 
 produced sufficient to render the truth of the charge prob- 
 able. But a different and a more just and merciful rule 
 now prevails. To justify the finding of an indictment, 
 you must be convinced, so far as the evidence before you 
 goes, that the accused is guilty in other words, you ought 
 not to find an indictment unless, in your judgment, the 
 evidence before you, unexplained and uncontradicted, 
 would warrant a conviction by a petit jury. 
 
 How far you should proceed to inquire into other 
 matters than such as are brought to your consideration by 
 the government, through its prosecuting officer, the dis- 
 trict attorney, has been a matter of much conflict of 
 opinion among different judges. 
 
 Before giving our views upon this subject, it is proper 
 to state that there is a wide difference between the powers 
 and duties of grand juries of the State courts of California 
 and of grand juries of the national courts. 
 
By a statute of the State, grand juries of the State courts 
 possess very great inquisitorial powers. They are required 
 to inquire into the official misconduct of public officers 
 of every description in their county, and are entitled to 
 the examination of all its public records. They are 
 bound by their oath to inquire into and presentment 
 make of all public offenses against the laws of the State 
 committed or triable in their county, of which they have, 
 or " can obtain " legal evidence. In order to ascertain 
 whether or not there has been any official misconduct in 
 any public officer, they have, under the statute, authority 
 to inspect all his books and records, and to subject him 
 to a searching examination. 
 
 No such general authority to inspect the books of the 
 officers of the United States, and to subject the officers 
 themselves to examination in respect to the entries in 
 those books, is possessed by the grand juries of the na- 
 tional courts. The exercise of such authority might prove 
 of serious detriment to the public service, for it might in- 
 terfere with the established system by which the account- 
 ability of the local officers of the United States to the 
 executive departments at Washington is secured. You 
 will readily perceive that an inspection by the grand jury, 
 for instance, of the books of the collector of customs at 
 this port, and requiring that officer to explain his entries 
 and his conduct, often directed by private and confi- 
 dential communications from those departments, might 
 seriously embarrass the government in its action. So, too, 
 embarrassment might follow from a similar inspection of 
 the records and examination of other officers of the 
 United States. 
 
 The examination of the books and accounts of the offi- 
 cers of the general government is provided for by law or 
 by regulations of the executive departments. When on 
 such examination the accounts are found to be unsatis- 
 factory, and defects and delinquencies are discovered 
 which render the officers liable to prosecution, civil or 
 
6 
 
 criminal, the proper instructions are given to the district 
 attorney of the United States, and the matter is brought 
 by him to the attention of the court or of the grand jury. 
 
 We return now to the inquiry as to what matters you 
 can direct your investigation beyond those which are 
 brought to your notice by the district attorney. Your 
 oath requires you to diligently inquire, and true present- 
 ment make, " of such articles, matters and things as shall 
 be given you in charge, or otherwise come to your knowl- 
 edge touching the present service." 
 
 The first designation of subjects of inquiry are those 
 which shall be given you in charge; this means those 
 matters which shall be called to your attention by the 
 court, or submitted to your consideration by the district 
 attorney. The second designation of subjects of inquiry 
 are those which shall "otherwise come to your knowledge 
 touching the present service ;" this means those matters 
 within the sphere of and relating to your duties which 
 shall come to your knowledge, other than those to which 
 your attention has been called by the court or submitted 
 to your consideration by the district attorney. 
 
 But how come to your knowledge? 
 
 Not by rumors and reports, but by knowledge acquired 
 from the evidence before you, or from your own observa- 
 tions. Whilst you are inquiring as to one offense, another 
 and a different offense may be proved, or witnesses before 
 you may, in testifying, commit the crime of perjury. 
 
 Some of you, also, may have personal knowledge of 
 the commission of a public offense against the laws of the 
 United States, or of facts which tend to show that such 
 an offense has been committed, or possibly attempts may 
 be made to influence corruptly or improperly your action 
 as grand jurors. If you'are personally possessed of such 
 knowledge, you should disclose it to your associates; 
 and if any attempts to influence your action corruptly or 
 improperly are made, you should inform them of it also, 
 and they will act upon the information thus communi- 
 
cated as if presented to them in the first instance by the 
 district attorney. 
 
 But unless knowledge is acquired in one of these ways, 
 it cannot be considered as the basis for any action on your 
 part. 
 
 We, therefore, instruct you that your investigations are 
 to be limited: 
 
 First To such matters as may be called to your atten- 
 tion by the court; or, 
 
 Second May be submitted to your consideration by the 
 district attorney; or, 
 
 Third May come to your knowledge in the course of 
 your investigations into the matters brought before you, 
 Qr from your own observations; or, 
 
 Fourth May come to your knowledge from the disclos- 
 ures of your associates. 
 
 You will not allow private prosecutors to intrude them- 
 selves into your presence, and present accusations. Gen- 
 erally such parties are actuated by private enmity, and 
 seek merely the gratification of their personal malice. 
 
 If they possess any information justifying the accusa- 
 tion of the person against whom they complain, they 
 should impart it to the district attorney, who will seldom 
 fail to act in a proper case. But if the district attorney 
 should refuse to act, they can make their complaint to a 
 committing magistrate, before whom the matter can be 
 investigated, and if sufficient evidence be produced of the 
 commission of a public offense by the accused, he can be 
 held to bail to answer to the action of the grand jury. 
 
 When the court does not deem the matter of sufficient 
 importance to call your attention to it, and the district at- 
 torney does not think it expedient to submit the matter 
 to your consideration, and the private prosecutor neglects 
 to proceed before the committing magistrate, we think it 
 may be safely inferred that public justice will not suffer, 
 if the matter is not considered by you. 
 
 A preliminary examination of the accused before a 
 
magistrate, where he can meet his prosecutor face to face, 
 and cross-examine him, and the witnesses produced by 
 him, and have the benefit of counsel, is the usual mode of 
 initiating proceedings in criminal cases, and is the one 
 which presents to the citizen the greatest security against 
 false accusations from any quarter. And this mode ought 
 not to be departed from, except in those cases where the 
 attention of the jury is directed to the consideration of 
 particular offenses by the court, or by the district attorney, 
 or the matter is brought to their knowledge in the course 
 of their investigations, or from their own observations, or 
 from disclosures made by some of their number. 
 
 We have been led, gentlemen, to give these instruc- 
 tions upon the nature of your duties and the limits to the 
 sphere of your investigations, because an impression widely 
 prevails that the institution of the grand jury has out- 
 lived its usefulness, an impression which has been created 
 from a disregard of those limits, and the facility with 
 which it has, unfortunately, often been used as an instru- 
 ment for the gratification of private malice. 
 
 There has hardly been a session of the grand jury of 
 this court for years, at which instances have not occurred 
 of personal solicitation to some of its members to obtain 
 or prevent the presentment or indictment of parties. And 
 communications to that end have frequently been ad- 
 dressed to the grand jury filled with malignant and scan- 
 dalous imputations upon the conduct and acts of those 
 against whom the writers entertained hostility, and 
 against the conduct and acts of former and present offi- 
 cers of this court, and of previous grand juries of this dis- 
 trict. 
 
 All such communications are calculated to prevent and 
 obstruct the due administration of justice, and to bring 
 the proceedings of the grand jury into contempt. " Let 
 any reflecting man," says a distinguished judge, " be he 
 layman or lawyer, consider of the consequences which 
 would follow, if every individual could at his pleasure 
 
throw his malice or his prejudice into the grand jury 
 room, and he will of necessity conclude that the rule of 
 law which forbids all communications with grand juries, 
 engaged in criminal investigations, except through the 
 public instructions of courts, and the testimony of sworn 
 witnesses, is a rule of safety to the community. What 
 value could be attached to the doings of a tribunal so to 
 be approached and influenced? How long would a body, 
 so exposed to be misled and abused, be recognized by 
 freemen as among the chosen ministers of liberty and se- 
 curity? The recognition of such a mode of reaching 
 grand juries would introduce a flood of evils, disastrous 
 to the purity of the administration of criminal justice, 
 and subversive of all public confidence in the action of 
 these bodies."* 
 
 At its last session Congress passed a stringent act to 
 prevent the continuance of this pernicious practice, as 
 well as to prevent any attempt to influence the adminis- 
 tration of justice corruptly or by the intimidation of jurors. 
 It is entitled " An act to prevent and punish the obstruc- 
 tion of the administration of justice in the courts of the 
 United States." It enacts " that if any person or persons 
 shall corruptly, or by threats or force, or by threatening 
 letters, or any threatening communications, endeavor to 
 influence, intimidate, or impede any grand or petit jury 
 or juror of any court of the United States in the discharge 
 of his or their duty, or shall corruptly or by threats or 
 force, or by threatening letters, or any threatening com- 
 munications, influence, obstruct or impede or endeavor 
 to influence, obstruct or impede the due administration 
 of justice therein, such person or persons so offending 
 shall be liable to prosecution therefor by indictment, 
 and shall, on conviction thereof, be punished by fine 
 not exceeding one thousand dollars, or by imprisonment 
 
 * Judge King, of Philadelphia, in Commonwealth Ex Eel. Jack v. 
 Grans; opinion reported in 3d Penn. Law Journal, pp. 459-464. 
 
10 
 
 not exceeding one year, or by both, according to the ag- 
 grav^ation of the offense." And it also enacts, that "if 
 any person or persons shall attempt to influence the action 
 or decision of any grand or petit juror upon any issue or 
 matter pending before such juror, or before the jury of 
 which he is a member, or pertaining to his or their duties, 
 by writing or sending to him any letter or letters, or any 
 communication in print or in writing in relation to such 
 issue or matter, without the order previously obtained of 
 the court before which the said juror is summoned, such 
 person or persons so offending shall be deemed guilty of a 
 misdemeanor, and shall be liable to prosecution therefor 
 by indictment or information, and shall, on conviction 
 thereof, be punished by fine not exceeding one thousand 
 dollars, or by imprisonment not exceeding six months, or 
 by both such fine and imprisonment, according to the ag- 
 gravation of the offense." 
 
 You thus perceive that Congress intends that in the 
 investigation of public offenses you shall be secure from 
 intimidation or personal influence of every kind. 
 
 The distinguished judge whom I have already quoted 
 observes that, " into every quarter of the globe in which 
 the Anglo-Saxon race have formed settlements, they have 
 carried with them this time-honored institution, ever re- 
 garding it with the deepest veneration, and connecting 
 its perpetuity with that of civil liberty." And Congress 
 has designed by the act in question, that this high char- 
 acter of your body shall not be lessened. If, therefore, in 
 violation of this law, to influence your action or decision, 
 any letter or communication in print or writing relating 
 to any issue or matter pending before you, or pertaining 
 to your duties is sent to you without the previous order 
 of the court, a case will arise coming to your knowledge, 
 within the principle already stated, and it will be your 
 duty, upon that knowledge, to indict or present the offend- 
 ing party. It will, also, be your duty to preserve and de- 
 liver to the district attorney the letter or other communi- 
 
11 
 
 cation sent to you, to be used as evidence in the prosecu- 
 tion of the party.* 
 
 The oath which you have taken indicates the impartial 
 spirit with which your duties should be discharged. You 
 are to present no one from envy, hatred or malice ; nor 
 shall you leave any one unpresented for fear, favor, affec- 
 tion, hope of reward or gain ; but shall present all things 
 truly as they come to your knowledge according to the 
 best of your understanding. 
 
 You are also to keep your own deliberations secret; you 
 are not at liberty even to state that you have had a 
 matter under consideration. Great injustice and injury 
 might be done to the good name and standing of a citizen 
 if it were known that there had ever been before you for 
 deliberation the question of his guilt or innocence of a 
 public offense. You will allow no one to question you as 
 to your own action or the action of your associates on the 
 grand jury. 
 
 To authorize you to find an indictment or presentment 
 there must be a concurrence of at least twelve of your 
 number; a mere majority will not suffice. 
 
 * In a case which arose in Philadelphia in 1845, Judge King considered 
 at length, in an elaborate and very able opinion, the duties of grand juries 
 in criminal cases ; and his views agree substantially with those expressed 
 in the charge. " Our system of criminal administration," said the judge, 
 "is not subject to the reproach that there exists in it an irresponsible 
 body with unlimited jurisdiction. On the contrary, the duties of a grand 
 jury in direct criminal accusations, are confined to the investigation of 
 matters given them in charge by the court ; of those preferred before 
 them by the attorney -general ; and of those which are sufficiently within 
 their own knowledge and observation to authorize an official present- 
 ment ; and they cannot, on the application of any one, originate proceed- 
 ings against citizens, which is a duty imposed by law on other public 
 agents. This limitation of authority we regard as alike fortunate for the 
 citizen and the grand jury. It protects the citizen from the persecution 
 and annoyance which private malice, or personal animosity, introduced 
 into the grand jury room, might subject him to. And it concerns the 
 dignity of the grand jury and the veneration with which they ought 
 always to be regarded by the people, by making them umpire between 
 the accuser and accused, instead of assuming the office of the former." 
 5th Penn. Law Jour. p. 63-64. 
 
12 
 
 The constitution, as you have observed, speaks of a pre- 
 sentment or indictment by a grand jury. The latter 
 the indictment is a formal accusation made by the grand 
 jury charging a party with the commission of a public 
 offense. Formerly it was the practice in all courts hav- 
 ing jurisdiction to inquire by the intervention of a grand 
 jury of public offenses, amounting to the grade of 
 felonies and such is the practice now in many courts 
 for the public prosecutor to hand to the grand jury an in- 
 strument of this character that is, a bill of an indict- 
 ment in form, with a list of the witnesses to establish the 
 offense charged. If in such case the jury found that the 
 evidence produced justified the finding of an indictment 
 they indorsed on the instrument " A True Bill ; " other- 
 wise, " Not Found," or, " Not a True Bill," or the word 
 "Ignoramus" we know nothing of it from the use of 
 which latter word the bill was sometimes said to be 
 ignored. 
 
 A presentment differs from an indictment in that it 
 wants technical form, and is usually found by the grand 
 jury upon their own knowledge, or upon the evidence 
 before them, without having any bill from the public 
 prosecutor. It is an informal accusation, which is gen- 
 erally regarded in the light of instructions upon which 
 an indictment can be framed. 
 
 This form of accusation has fallen in disuse since the 
 practice has prevailed and the practice now obtains gen- 
 erally for the prosecuting officer to attend the grand jury 
 and advise them in their investigations. 
 
 The government now seldom delivers bills of indict- 
 ment to the grand jury in advance of their action, but 
 generally awaits their judgment upon the matters laid 
 before them. The district attorney has the right to be 
 present at the taking of testimony before you for the pur- 
 pose of giving information or advice touching any matter 
 cognizable by you, and may interrogate witnesses before 
 you, but he has no right to be present pending your de- 
 
13 
 
 liberations on the evidence. When your vote is taken 
 upon the question whether an indictment shall be found 
 or a presentment made, no person besides yourselves 
 should be present. 
 
 These, gentlemen, are all the general instructions which 
 we have thought important to give you at this time. 
 There are some few observations, however, which we 
 would add respecting the execution of the revenue laws; 
 and these we will take from a charge of the present chief 
 justice of the United States, delivered to a grand jury in 
 West Virginia. "The war," says that great judge, "in 
 which the nation has been recently engaged for the pres- 
 ervation of the national union and government, endan- 
 gered by rebellion, made the contracting of a large debt 
 inevitable. This debt is the price of our national exist- 
 ence, and binds irrevocably the good faith of the people. 
 Its inviolable obligation has been recognized by a solemn 
 act of the nation in adopting the fourteenth amendment 
 to the constitution of the United States, which declares 
 that ' the validity of the public debt of the United States, 
 authorized by law, including debts incurred for the pay- 
 ment of pensions and bounties for services in suppressing 
 insurrection or rebellion, shall not be questioned. 5 " 
 
 " There are differences of opinion as to the mode of pay- 
 ment required by the contracts of the American people, 
 made through their government ; but nobody questions 
 openly, if anybody questions at all, that the debt con- 
 tracted must be paid, and paid in perfect good faith. The 
 law of the amendment that the validity of the national 
 debt shall not be questioned, was already written on the 
 hearts of the people before they made it part of the con- 
 stitution. To provide for the reduction and final pay- 
 ment of this debt and the annual expenses of the govern- 
 ment, taxes are necessarily imposed. In other words, the 
 equal proportion to be contributed by each citizen is 
 ascertained by law. He who withholds his just propor- 
 tion, deprives the rest of the people of exactly the same 
 
14 
 
 amount withheld. His fraud operates as theft. The sum 
 total necessary to meet the obligations of the nation must 
 be raised. Fraud upon the revenue does not reduce that 
 sum; it merely shifts the burdens evaded by the fraudu- 
 lent, upon others who pay their full proportion besides. 
 All honest men, therefore, have a common cause against 
 the dishonest." 
 
 You, gentlemen, represent the honest men, and it is 
 your duty to see that no defrauder of the revenue who can 
 be brought to justice, escapes merited punishment. The 
 higher in office, and the higher in social position the de- 
 linquent may be, the more unremitting and searching 
 should be your diligence in inquiry and presentment. 
 
 To these observations of the chief justice, it may not be 
 out of place to add here, that great as is the debt forced 
 upon the nation by the recent rebellion, the results to the 
 country which have followed from the war, to which that 
 rebellion led, should make us feel that the burden of the 
 debt is light. 
 
 That war has done away forever with the miserable no- 
 tion, which extensively prevailed at the time of the out- 
 break of the rebellion, that the general government, 
 because it was formed by the people of the several States, 
 sovereign in some of their powers, should not exert any 
 coercion to enforce its laws. No one is now willing to 
 run a tilt against common sense by adducing any argu- 
 ment in support of this absurd position; and the war has 
 demonstrated that the general government possesses all 
 the power necessary to enforce obedience to its laws 
 throughout the limits of the republic. 
 
 That war has also led to the great constitutional amend- 
 ments; the amendment which declares that "neither 
 slavery nor involuntary servitude, except as a punishment 
 for crime, of which the party shall have been duly con- 
 victed, shall exist within the Uniten States, or any place 
 subject to their jurisdiction;" and the amendment which 
 declares that " no State shall make or enforce any law 
 
15 
 
 which shall abridge the privileges or immunities of 
 zens of the United States. Nor shall any State deprive 
 any person of life, liberty or property, without due pro- 
 cess of law, nor to deny to any person within its jurisdic- 
 tion the equal protection of the laws." 
 
 These amendments constitute the great, the crowning 
 glory of the country, for they make freedom, when not 
 forfeited by crime, the legal condition of every human 
 being within the jurisdiction of the United States, and 
 equality before the law his constitutional right. 
 
 We had intended, gentlemen, to say something respect- 
 ing the treatment which Chinese and other Asiatics have 
 sometimes received in this district. But the district at- 
 torney informs us that there are no cases pending which 
 would require a consideration of this matter by you. We 
 will therefore only observe that although there may be 
 reasonable differences of opinion with respect to the wis- 
 dom and policy of encouraging the immigration to this 
 country of persons, between whom and our people there 
 is such marked dissimilarity in constitution, habits and 
 manners ; yet so long as our country seeks to enlarge her 
 commerce by treaties with Asiatic countries, and to secure 
 protection to her own citizens in those countries by pledg- 
 ing protection to their citizens in this country, it is the 
 duty of the government to exert its power, its entire 
 power if necessary, to enforce its obligations in this re- 
 respect. 
 
 And more than this independently of all such consid- 
 erations of duty or interest, it is base and cowardly to 
 maltreat these people whilst they are within the jurisdic- 
 tion of our government. If public policy requires that 
 they should be excluded from our shores, let the general 
 government so provide and declare, but until it does 
 so provide and declare, they have a perfect right to 
 immigrate to this country; and whilst here they are en- 
 titled, equally with all others, to the full protection 
 of our laws. It is unchristian and inhuman to maltreat 
 
16 
 
 them, as has been sometimes done by disorderly persons, 
 we are sorry to say, in this district. 
 
 We are not aware, gentlemen, that any matter will be 
 presented to you requiring any other special directions 
 than those already given. Should any such arise, the 
 court will again call you before it and give such instruc- 
 tions as the matter may require. You are at liberty at 
 any time to ask the advice of the court upon any ques- 
 tions of law relating to matters under investigation before 
 you, although you will probably find the advice of the 
 district attorney upon those matters sufficient to guide 
 your action. 
 
 (Reported in 2d Sawyer's Circuit Court Reports, p. 667.) 
 
An agreement for compensation for procuring- a contract from 
 the Government to furnish it supplies, against public policy 
 and cannot be enforced by the courts. 
 
 OF THE 
 
 UNITED STATES SUPREME COURT 
 
 IN 
 
 TOOL COMPANY vs. NORRIS, 
 
 Delivered at December Term, 1864,* 
 BY 
 
 MR. JUSTICE 
 
 In July, 1861, the Providence Tool Company, a cor- 
 poration created under the laws of Rhode Island, entered 
 into a contract, through the Secretary of War, to deliver 
 to officers of the United States, within certain stated periods, 
 twenty -five thousand muskets, of a specified pattern, at 
 the rate of twenty dollars a musket. This contract was 
 procured through exertions of Norris, the plaintiff in the 
 court below, upon a previous agreement with the corpo- 
 ration through its managing agent, that in case he ob- 
 tained a contract of that kind he should receive compen- 
 sation for his services proportionate to its extent. 
 
 The declaration contained several counts, some special 
 and some general. The special counts set forth specifi- 
 cally the contract stated. The general counts were in the 
 usual form of quantum meruit. On the trial the counsel 
 of the Tool Company requested the court to instruct the 
 
 * Reported in 2 Wallace, 45. 
 
jury that a contract like that declared on in the special 
 counts was against public policy and void, which instruc- 
 tion the court refused to give. On the other counts it in- 
 structed the jury that the plaintiff was only entitled to 
 recover a fair and reasonable compensation for the time, 
 speech, labor performed, and expenses incurred in per- 
 forming the services. The jury found for the defendant 
 on the special counts, and for the plaintiff on the others, 
 and the case was taken to the Supreme Court of the 
 United States on writ of error. 
 
 Mr. Justice FIELD delivered the opinion of the Court. 
 
 Several grounds were taken, in the court below, in de- 
 fence of this action; and, among others, the corporation 
 relied upon the proposition of law, that an agreement of 
 the character stated that is, an agreement for compen- 
 sation to procure a contract from the government to fur- 
 nish its supplies is against public policy, and void. 
 This proposition is the question for the consideration of 
 the court. It arises upon the refusal of the court below 
 to give one of the instructions asked. 
 
 A suggestion was made on the argument, though not 
 much pressed, that the instruction involving the propo- 
 sition cannot properly be regarded, inasmuch as it was 
 directed in terms to the agreement set forth in the special 
 counts of the declaration, upon which the jury found for 
 the defendants. There would be much force in this sug- 
 gestion, if the general counts, upon which the verdict 
 passed for the plaintiff, did not also aver that his services 
 were rendered in procuring the same contract from the 
 government. The instruction was directed especially to 
 the legality of a contract' of that kind, which having been 
 once refused with reference to some of the counts, it was 
 not necessary for counsel to renew with reference to the 
 other counts to which it was equally applicable. The sub- 
 sequent instructions were, therefore, directed to other 
 matters. 
 
3 
 
 It was not claimed, on the trial, that the plaintiff had 
 rendered any other services than those which resulted in 
 the procurement of the contract for the muskets. We 
 are of opinion, therefore, that the proposition of law is 
 fairly presented by the record, and is before us for con- 
 sideration. 
 
 The question, then, is this: Can an agreement for com- 
 pensation to procure a contract from the government to 
 furnish its supplies be enforced by the courts? We have 
 no hesitation in answering the question in the negative. 
 All contracts for supplies should be made with those, and 
 with those only, who will execute them most faithfully, 
 and at the least expense to the government. Considera- 
 tions as to the most efficient and economical mode of 
 meeting the public wants should alone control, in this 
 respect, the action of every department of the govern- 
 ment. No other consideration can lawfully enter into 
 the transaction, so far as the government is concerned. 
 Such is the rule of public policy; and whatever tends to 
 introduce any other elements into the transaction, is 
 against public policy. That agreements, like the one 
 under consideration, have this tendency, is manifest. 
 They tend to introduce personal solicitation, and personal 
 influence, as elements in the procurement of contracts; 
 and thus directly lead to inefficiency in the public service, 
 and to unnecessary expenditures of the public funds. 
 
 The principle which determines the invalidity of the 
 agreement in question has been asserted in a great variety 
 of cases. It has been asserted in cases relating to agree- 
 ments for compensation to procure legislation. These 
 have been uniformly declared invalid, and the decisions 
 have not turned upon the question, whether improper in- 
 fluences were contemplated or used, but upon the corrupt- 
 ing tendency of the agreements. Legislation should be 
 prompted solely from considerations of the public good, 
 and the best means of advancing it. Whatever tends to 
 divert the attention of legislators from their high duties, 
 
to mislead their judgements, or to substitute other motives 
 for their conduct than the advancement of the public 
 interests, must necessarily and directly tend to impair 
 the integrity of our political institutions. Agreements 
 for compensation contingent upon success, suggest the 
 use of sinister and corrupt means for the accomplishment 
 of the end desired. The law meets the suggestion of evil, 
 and strikes down the contract from its inception. 
 
 There is no real difference in principle between agree- 
 ments to procure favors from legislative bodies, and agree- 
 ments to procure favors in the shape of contracts from 
 the heads of departments. The introduction of improper 
 elements to control the action of both is the direct and 
 inevitable result of all such arrangements. (Marshall v. 
 Baltimore and Ohio Railroad Company, 16 How. 314; Harris 
 v. Roofs Executors, 10 Barb. 489; Fuller v. Dame, 18 Pick. 
 472.) 
 
 The same principle has also been applied, in numerous 
 instances, to agreements for compensation to procure ap- 
 pointments to public offices. These offices are trusts, held 
 solely for the public good, and should be conferred from 
 considerations of the ability, integrity, fidelity, and fit- 
 ness for the position of the appointee. No other consid- 
 erations can properly be regarded by the appointing power. 
 Whatever introduces other elements to control this power, 
 must necessarily lower the character of the appointments, 
 to the great detriment of the public. Agreements for 
 compensation to procure these appointments tend directly 
 and necessarily to introduce such elements. The law, 
 therefore, from this tendency alone, adjudges these agree- 
 ments inconsistent with sound morals and public policy. 
 (Gray v. Hook, 4 Com. 449.) 
 
 Other agreements of an analogous character might be 
 mentioned, which the courts, for the same or similar 
 reasons, refuse to uphold. It is unnecessary to state them 
 particularly; it is sufficient to observe, generally, that all 
 agreements for pecuniary considerations to control the 
 
business operations of the government, or the regular ad- 
 ministration of justice, or the appointments to public 
 offices, or the ordinary course of legislation, are void as 
 against public policy, without reference to the question 
 whether improper means are contemplated or used in 
 their execution. The law looks to the general tendency 
 of such agreements; and it closes the door to temptation 
 by refusing them recognition in any of the courts of the 
 country. 
 
 It follows that the judgment of the court below must 
 be reversed, and the cause remanded for a new trial; and 
 it is So ordered. 
 
INVALIDITY OF CONTRACTS TO CONTROL AGENTS 
 OF THE GOVERNMENT. 
 
 THE 
 
 OF THE 
 
 SUPREME COURT OF THE UNITED STATES 
 
 IN 
 
 OSCANYAN w. ARMS COMPANY. 
 
 Personal influence to be exercised over an officer of government in the procurement 
 of contracts is not a vendible article in our system of laws and morals, and 
 the courts of the United States will not lend their aid to the vendor to collect 
 the price of the article. 
 
 Mr. Justice FIELD delivered the opinion of the Court.* 
 
 This is an action to recover the sum of $136,000, alleged to be 
 due to the plaintiff upon a contract with the defendant, as com- 
 missions on the sales of fire-arms to the Turkish government, 
 effected through his influence. The defendant pleads the general 
 issue. At the time the transactions occurred, out of which this 
 action has arisen, the plaintiff was consul-general of the Ottoman 
 government at the port of New York. The defendant is a corpo- 
 ration, created under the laws of Connecticut. The action was 
 originally commenced in the Supreme Court of New York, and, 
 on motion of the defendant, was removed to the Circuit Court of 
 the United States. When it was called for trial, and the jury was 
 empaneled, one of the plaintiff's counsel, as preliminary to the 
 introduction of testimony, stated to the court and jury the issues 
 in the case, and the facts which they proposed to prove. From 
 such statement it appeared that the sales for which commissions 
 were claimed by the plaintiff were made whilst he was an officer 
 of the Turkish government, and through the influence which he 
 exerted upon its agent sent to this country to examine and report 
 
 * Reported in 103 U. S. Sup. Ct. Reports, 261. 
 
in regard to the purchase of arms. The particulars of the services 
 rendered will be more fully mentioned hereafter. It is sufficient 
 now to say that the defendant, considering that the facts which 
 the plaintiff proposed to prove showed that the contract was void 
 as being currupt in itself and prohibited by morality and public 
 policy, upon which no recovery could be had, moved the court to 
 direct the jury to render a verdict in its favor. The court there- 
 upon inquired of the plaintiff's counsel if they claimed or ad- 
 mitted that the statements which had been made were true, to 
 which they replied in the affirmative. Argument was then had 
 upon the motion, after which the court directed the jury to find 
 a verdict for the defendant, which was accordingly done. Judg- 
 ment being entered upon it, the case was brought to this court 
 for review. The reversal of the judgment is sought for alleged 
 errors of the court below in three particulars : 
 
 1st. In directing a verdict for the defendant upon the opening 
 statement of the plaintiff's counsel ; 
 
 2d. In holding that the question of the illegality of the con- 
 tract could be considered in the case, the same not having been 
 specially pleaded ; and 
 
 3d. In adjudging that the contract set forth in the opening 
 statement was illegal and void. Each of these grounds will be 
 carefully examined. 
 
 1. Several reasons are presented against the power of the court 
 to direct a verdict upon the statement of the facts which the plain- 
 tiff proposed to prove, that might be more properly urged against 
 its exercise in particular cases. The power of the court to act in 
 the disposition of a trial upon facts conceded by counsel, is as 
 plain as its power to act upon the evidence produced. The ques- 
 tion in either case must be whether the facts upon which it is 
 called to instruct the jury be clearly established. If a doubt exists 
 as to the statement of counsel, the court will withhold its direc- 
 tions, as where the evidence is conflicting, and leave the matter 
 to the determination of the jury. 
 
 In the trial of a cause the admj$sions of counsel, as to matters 
 to be proved, are constantly received and acted upon. They may 
 dispense with proof of facts for which witnesses would otherwise 
 be called. They may limit the demand made or the set-off claimed . 
 Indeed, any fact, bearing upon the issues involved, admitted by 
 counsel, may be the grounrl of the court's procedure equally as 
 
if established by the clearest proof. And if in the progress of a 
 trial, either by such admission or proof, a fact is developed which 
 must necessarily put an end to the action, the court may, upon 
 its own motion, or that of counsel, act upon it and close the case. 
 If, on a trial for a homicide, to take an illustration suggested by 
 counsel, it should appear from the opening statement that the 
 accused had been pardoned for the offence charged, it would be a 
 waste of time to listen to the evidence of his original criminality; 
 for if established he would still be entitled to his discharge by 
 force of the pardon. So in a civil action, if it should appear 
 from the opening statement that it is brought to obtain compen- 
 sation for acts which the law denounces as corrupt and immoral, 
 or declares to be criminal, such as attempts to bribe a public officer, 
 or to evade the revenue laws, or to embezzle the public funds, the 
 court would not hesitate to close the case without delay. Of 
 course in all such proceedings nothing should be taken, without 
 full consideration, against the party making the statement or ad- 
 mission. He should be allowed to explain and qualify it, so far 
 as the truth will permit; but if with such explanation and quali- 
 fication, it should clearly appear that there could be no recovery, 
 the court should not hesitate to so declare and give such direction 
 as will dispose of the action. 
 
 Here there were no unguarded expressions used, nor any am- 
 biguous statements made. The opening counsel was fully ap- 
 prised of all the facts out of which his client's claim originated, 
 and seldom was a case opened with greater fulness of detail. He 
 dwelt upon and reiterated the statement of the fact which con- 
 stituted the ground of the court's action in directing a verdict for 
 the defendant, namely, that it was Oscanyan's influence alone 
 which controlled the agent of the Turkish government, and for 
 the use of that influence the defendant had agreed to give the 
 compensation demanded that is to say, that whilst an officer of 
 the Turkish government the plaintiff had stipulated for a com- 
 mission on contracts obtained from it through his personal influ- 
 ence over its agent. Had the case been pending in a court of 
 some of the States, or in an English court, a non-suit would have 
 been ordered, if the facts stated had been deemed fatal to the 
 action. Involuntary non-suits not being allowed in the federal 
 courts, the course adopted was the proper proceeding. The differ- 
 ence in the two modes is rather a matter of form than of substance, 
 
4 
 
 except in the case of a non-suit a new action may be brought, 
 whereas in the case of a verdict the action is ended, unless a new 
 trial be granted either upon motion or upon appeal. 
 
 The language of this court in numerous cases is in accordance 
 with these views, though used with reference to directing a verdict 
 after evidence is received. But, as already stated, it cannot make 
 any difference as to the power of the court, whether the facts be 
 developed by the evidence or be admitted by counsel. In Mer- 
 chants' Bank vs. State Bank it appeared, that upon the evidence 
 on behalf of the plaintiff being closed, the defendant's counsel 
 moved the court below to instruct the jury that it was not suffi- 
 cient to enable them to find a verdict for the plaintiff. The 
 instruction was given and the jury found for the defendant, 
 The case being brought here on writ of error, this court said, 
 speaking through Mr. Justice Swayne : " According to the settled 
 practice in the courts of the United States, it was proper to give 
 the instruction if it were clear the plaintiff could not recover. It 
 would have been idle to proceed further when such must be the 
 inevitable result. The practice is a wise one; it saves time and 
 costs; it gives the certainty of applied science to the results of 
 judicial investigation ; it draws clearly the line which separates 
 the provinces of the judge and jury, and fixes where it belongs 
 the responsibility which should be assumed by the court." (10 
 Wall., 604, 637.) 
 
 In Pleasants vs. Fant, this court, speaking of a case where the 
 evidence was insufficient to justify a verdict, and where it would 
 be the duty of the court below to set it aside and grant a new 
 trial, said, speaking through Mr. Justice Miller: "Must the court 
 go through the idle ceremony in such a case of submitting to the 
 jury the testimony on which the plaintiff relies, when it is clear 
 to the judicial mind that if the jury should find a verdict in favor 
 of plaintiff, that verdict would be set aside and a new trial had? 
 Such a proposition is absurd, and accordingly we hold the true 
 principle to be that if the court is satisfied that, conceding all the 
 inferences which the jury could justifiably draw from the testi- 
 mony, the evidence is insufficient to warrant a verdict for the 
 plaintiff, the court should say so to the jury." (22 Wall., 116, 
 122.) 
 
 In Railroad Co. vs. FralofF it was claimed by the company that 
 the court below erred in not giving a peremptory instruction for 
 
a verdict in its favor. But this court, whilst holding the position 
 untenable, said, speaking through Mr. Justice Harlan: "Had 
 there been no serious controversy about the facts, and had the 
 law, upon the undisputed evidence, precluded any recovery what- 
 ever against the company, such an instruction would have been 
 proper." (100 U. S, 24, 26.) 
 
 Indeed, there can be, at this day, no serious doubt that the 
 court may at any time direct a verdict when the facts are undis- 
 puted, and that the jury should follow such direction. The 
 maxim that questions of fact are to be submitted to the jury, and 
 not to be determined by the court, is not violated by this pro- 
 ceeding any more than by a non-suit in a state court where the 
 plaintiff fails to make out his case. The intervention of the jury 
 is required only where some question of fact is controverted. 
 
 Our conclusion, therefore, is that the first position of the plain- 
 tiff is not well taken. 
 
 The suggestion in the argument, that the counsel who made 
 the opening had been called into the case only two days before 
 the trial, and was not, therefore, fully prepared to open it, does 
 not merit consideration. In the first place, the record does not 
 show that any application was made to the court for a postpone- 
 ment of the trial on that ground; in the second place, x two days 
 ought to have been ample time for the counsel to acquaint him- 
 self with the essential facts of the case ; and in the third place, no 
 new fact is even now mentioned that would have materially 
 changed his statement. 
 
 2. The position of the plaintiff that the illegality of the contract 
 in suit cannot be noticed, because not affirmatively pleaded, does 
 not strike us as having much weight. We should hardly deem 
 it worthy of serious consideration had it not been earnestly pressed 
 upon our attention by learned counsel. The theory upon which 
 the action proceeds is that the plaintiff has a contract valid in 
 law, for certain services. Whatever shows the invalidity of the 
 contract shows that in fact no such contract as alleged ever existed. 
 The general denial under the code of procedure of New York, or 
 the general issue at common law, is, therefore, sustained by proof 
 of the invalidity of the transaction which is designated in the 
 complaint or declaration as a contract. 
 
 Whilst, however, at the common law, under the general issue 
 in assiimpsit, it was always admissible to give in evidence any 
 
matter which showed that the plaintiff never had a valid cause 
 of action, in practice many other matters were allowed under that 
 plea, such as went to the discharge of the original cause of action 
 and showed that none subsisted at the commencement of the suit 
 such as payment, release, accord and satisfaction, and a former 
 recovery, and excuses for non-performance of the contract ; and 
 also that it had become impossible or illegal to perform it. (1 
 Chitty's Pleading, 493; Craig vs. The State of Missouri, 4 Peters, 
 410-426; Edson vs. Weston, 7 Cowen, 278; Young vs. Hummel, 
 2 Hill, 478.) It followed that there were many surprises at the 
 trial by defences which the plaintiff was not prepared to meet. 
 The English courts, under the authority of an act of Parliament 
 passed in the reign of William IV., adopted rules which to some 
 extent corrected the evils arising from this practice of allowing 
 defences under the general issue which did not go directly to 
 the validity of the original cause of action. And the code of 
 procedure of New York did away entirely with the practice in 
 that State, and required parties relying upon anything which, 
 admitting the original existence of the cause of action, went to 
 show its discharge such as a release or payment or other matter 
 to plead it specially, in order that the plaintiff might be apprised 
 of the grounds of defence to the action. We do not understand 
 that the code makes any other change in the matters admissible 
 under the general denial. 
 
 But if we are mistaken in this view of the system of procedure 
 adopted in New York, and of the defences admissible according 
 to it under a general denial in an action upon a contract, our 
 conclusion would not be changed in the present case. Here the 
 action is upon a contract which, according to the view of the 
 judge who tried the case, was a corrupt one, forbidden by morality 
 and public policy. We shall hereafter examine into the correct- 
 ness of this view. Assuming for the present that it was a sound 
 one, the objection to a recovery could not be obviated or waived 
 by any system of pleading or even by the express stipulation of 
 the parties. It was one which the court itself was bound to raise 
 in the interest of the due administration of justice. The court 
 will not listen to claims founded upon services rendered in viola- 
 tion of common decency, public morality, or the law. History 
 furnishes instances of robbery, arson, and other crimes committed 
 for hire. If, after receiving a pardon, or suffering the punishment 
 
imposed upon him, the culprit should sue the instigator of the 
 crime for the promised reward if we may suppose that audacity 
 could go so far the court would not hesitate a moment in dismis- 
 sing his case and sending him from its presence, whatever might 
 be the character of the defence. It would not be restrained by 
 defects of pleading, nor, indeed, could it be by the defendant's 
 waiver, if we may suppose that in such a matter it would be 
 offered. What is so obvious in a case of such aggravated crimi- 
 nality as the one supposed is equally true in all cases where the 
 services for which compensation is claimed are forbidden by law 
 or condemned by public decency or morality. 
 
 This doctrine was applied in Coppell vs. Hall, reported in 7th 
 Wallace. In that case Coppell was the acting British consul in 
 New Orleans, and during the late civil war entered into a con- 
 tract with one Hall, by which the latter agreed to furnish him 
 with sundry bales of cotton, which he Was to cause to be protected 
 from seizure by our forces and transported to New Orleans, and 
 there disposed of to the best advantage, he to receive one-third of 
 the profits for his compensation. For breach of this contract he 
 sued Hall, who set up that the contract was against public policy 
 and void, and also a reconventional demand or counter-claim for 
 damages for a breach of the contract by Coppell. On the trial, 
 the court below, among other things, instructed the jury that if 
 the contract was illegal, the illegality had been waived by the 
 reconventional demand of the defendant, but this court said, 
 speaking through Mr. Justice Swayne, that the instruction "was 
 founded upon a misconception of the law. In such cases," he 
 added, " there can be no waiver. The defence is allowed, not for 
 the sake of the defendant, but of the law itself. The principle is 
 indispensable to the purity of its administration. It will not en- 
 force what it has forbidden and denounced. The maxim, ex dolo 
 malo non oritur actio, is limited by no such qualification. The 
 proposition to the contrary strikes us as hardly worthy of serious 
 refutation. Whenever the illegality appears, whether the evi- 
 dence comes from one side or the other, the disclosure is fatal to 
 the case. No consent of the defendant can neutralize its effect. 
 A stipulation in the most solemn form to waive the objection, 
 would be tainted with the vice of the original contract, and void 
 for the same reasons. Wherever the contamination reaches it 
 destroys. The principle to be extracted from all the cases is, that 
 
the law will not lend its support to a claim founded upon its vio- 
 lation." (See, also, Holman vs. Johnson, Cowper, 341.) 
 
 Approving of the doctrine so well expressed in this citation, 
 our conclusion is that the second position of the plaintiff is not 
 well taken. 
 
 3. We are brought, then, to the consideration of the contract 
 upon which the action is founded. This is given in the opening 
 statement of the plaintiff, with full particulars of the services 
 rendered. We need only repeat its essential portions. As already 
 mentioned, he was at the time consul-general of the Ottoman gov- 
 ernment at the port of New York. For many years previously to 
 1869 he had resided in the United States, and was familiar with 
 our language. In that year the Turkish government sent Rustem 
 Bey, an officer of high rank in its service, to the United States 
 to examine and report in regard to the purchase of arms and 
 machinery for its use. He was a friend of the plaintiff; had 
 known him many years, and their relations were intimate. On 
 his arrival in this country he made the plaintiff's office his 
 headquarters, arid there all his interviews and negotiations with 
 the manufacturers of arms were had; and, as he did not speak 
 English, these interviews and negotiations were conducted 
 through the plaintiff. The manufacturers soon became aware 
 of the relation of the men to each other, and accordingly opened 
 a correspondence with the plaintiff, or waited upon him, to 
 secure his influence with the Bey in presenting their arms. 
 Among others, Winchester, the president of the Winchester 
 Repeating Arms Company, of Connecticut, the defendant here, 
 sought an introduction to him, and the scene is thus narrated : 
 "Said Mr. Winchester to Oscanyan, 'Will you be kind enough 
 to call the attention of Rustem Bey to my repeating rifle?' 
 'Well,' said Oscanyan, 'Mr. Winchester, I am receiving com- 
 missions from all parties for that favor, and I expect commissions 
 for my services, and that is one of the ways by which I make 
 my livelihood ; if you can 'compensate me, if you can remune- 
 rate me by giving me commissions, I will use my influence for 
 you and do all I can for you.' ' Very well,' said Mr. Winchester, 
 'that is all right. You shall have whatever commissions we 
 deem proper, and we will talk the matter over and agree upon 
 that.' Accordingly Oscanyan showed the Winchester repeating 
 rifle to Rustem Bey," who was not pleased with it, but through 
 
9 
 
 Oscanyan's influence Was induced to send samples of it to Con- 
 stantinople. 
 
 In January, 1870, the Bey received instructions from the 
 Turkish Minister of Ordnance to examine and report upon the 
 Spencer gun. These instructions were given because the Turkish 
 government had heard that the United States had a large number 
 of these guns on hand which they desired to dispose of. They 
 immediately became known to Oscanyan, and, as he had agreed 
 with Winchester to press the claims of the Winchester gun, he 
 at once proceeded to use his influence with the Bey to condemn 
 the Spencer gun. The opening statement says that "he raised 
 all manner of objections that he could, and he finally did succeed 
 in inducing" the Bey to put it aside. Then he brought out 
 a Winchester gun -a sample of which he always kept in his 
 office for the very purpose, whenever opportunity offered, of 
 presenting its claims. It appears, however, that the Bey did not, 
 from the first, like that gun, and for that reason, continues the 
 opening statement, "Oscanyan had to use all his ingenuity and 
 skill and perseverance and patience" to get him to look at it 
 at all, but finally he succeeded in getting him to recommend the 
 purchase of a thousand of them for the use of the imperial body- 
 guard. This, said the plaintiff's counsel, was done by the Bey, 
 "in order to please Oscanyan," knowing the fact that he had an 
 arrangement with the defendant for a commission on the sale. 
 Accordingly the Bey reported to the Turkish government con- 
 demning the Spencer gun and recommending the purchase of 
 the Winchester repeating arms. Soon afterwards Oscanyan in- 
 formed Winchester of what he had done, when the latter re- 
 marked that he would have allowed Oscanyan the same com- 
 missions on the Spencer guns as on the others. Oscanyan replied 
 that the United States had a large number of them on hand, and 
 if the Bey had reported favorably on that gun the Turkish gov- 
 ernment would have ordered them directly from the United 
 States government. It was that reason, said Oscanyan, which 
 " weighed on my mind " to persuade the Bey to condemn the gun. 
 
 In February, 1870, the Bey received fresh instructions to in- 
 quire into and report upon the price of twenty thousand repeat- 
 ing arms, and to send fresh samples. Oscanyan soon learned of 
 this, and immediately telegraphed for Winchester, who arrived 
 at his office on the following day, when Oscanyan informed him 
 
10 
 
 that lie had got an order for twenty thousand guns, or an inquiry 
 for the price of twenty thousand, and thought he could get an 
 order for one hundred thousand. He then called Winchester's 
 attention to an objection raised by the Bey relating to the spring 
 of the magazine of the rifle, and advised him to meet it ; and 
 this advice was acted upon. Soon afterwards Winchester, as 
 president of the company, put in writing his agreement with 
 Oscanyan, to give ten per cent, upon all sales of arms of the 
 company made to or by the latter to the Ottoman government, 
 provided that such sales were made at prices and upon terms 
 having his approval. This was dated on the 4th of March, 1870. 
 On the following day a box of fresh samples was forwarded to 
 the Turkish Minister of Ordnance at Constantinople, and, after 
 a delay of some months for the receipt of the cartridges, a trial 
 of them was had with a favorable result. Written contracts 
 between the defendant and the Turkish government followed ; 
 one made November 9th, 1870, for arms to the amount of 
 $520,000, and another made August 19th, 1871, for arms to the 
 amount of $840,000. 
 
 The plaintiff claims that these contracts were procured through 
 the recommendations which by his influence were made by 
 Rustem Bey. His counsel stated this in his opening, and de- 
 clared that no other person had possessed any influence in effect- 
 ing the sales. It is for the use of this influence that the contract 
 in suit was made and compensation is now demanded. The 
 question then arises, is this contract one which the court will 
 enforce. We have no hesitation in answering it in the negative. 
 The contract was a corrupt one corrupt in its origin and cor- 
 rupting in its tendencies. The services stipulated and rendered 
 were prohibited by considerations of morality and policy which 
 should prevail at all times and in all countries, and without 
 w r hich fidelity to public trusts would be a matter of bargain and 
 sale and not of duty. 
 
 In the first place the plain-tiff was, at the time, an officer of the 
 Turkish government. As its consul-general at the port of New 
 York he was invested with important functions, and entitled to 
 many privileges by the law of nations. It is not necessary here 
 to state with any particularity the functions and privileges at- 
 tached to the consular office. These will be found in any of the 
 approved treatises on international law. 
 
11 
 
 It is enough to observe that a consul is an officer com missioned 
 by his government for the protection of its interests and those of 
 its citizens or subjects; and whilst he is sometimes allowed in 
 Christian countries to engage in commercial pursuits, he is 1 so far 
 its public agent and commercial representative that he is pre- 
 cluded from undertaking any affairs or assuming any position in 
 conflict with its interests or its policy. By some governments he 
 is invested -in the absence of a minister or ambassador to repre- 
 sent them with diplomatic powers, and, as between their citizens 
 or subjects, may also exercise judicial functions. By all govern- 
 ments his representative character is recognized, and for that rea- 
 son certain exemptions and privileges are granted to him. In 
 the Constitution of the United States consuls are classed with 
 ministers and ambassadors in the enumeration of parties whose 
 cases are subject to the original jurisdiction of the Supreme Court, 
 and in the treaty with the Ottoman Empire authority is given to 
 it to appoint consuls in the United States. 
 
 It was stated in the argument that the office held by the plain- 
 tiff was an honorary one, created especially as an evidence of the 
 high regard entertained for him by the government of his coun- 
 try, as if the objection to his claim of a right to exact a commis- 
 sion on contracts w T ith it, made through his influence, was ob- 
 viated by the fact that he received no salary for the discharge of 
 his official duties. Assuming the office to have been purely an 
 honorary one, we do not perceive how this circumstance could in 
 any respect alter his relations to that government. If conferred 
 as a mark of honor, the fact would seem to impose upon him in- 
 creased obligation to avoid any departure from the line of duty. 
 The members of Parliament in England receive no pay for their 
 services, and the expenses of many official positions, in this and 
 other countries, exceed the compensation allowed to the incum- 
 bents; but this circumstance would not excuse, much less justify, 
 them in sacrificing the public interests for individual gains or 
 profits. All such positions are trusts to be exercised from consid- 
 erations of duty and for the public good. Whenever other con- 
 siderations are allowed to intervene and control their exercise, 
 the trust is perverted, and the community suffers. The plaintiff, 
 it is true, was not the purchasing agent of the Turkish govern- 
 ment, but he was its honored officer, upon whose fidelity to its in- 
 terests it had a right to rely in any advice which he might give 
 
12 
 
 to its agent. But so far from justifying this confidence, the only 
 motive upon which he appears to have acted was the hope of 
 gain to himself by high commissions on the sales effected. As 
 justly remarked by the judge who tried the case, the benefits which 
 would inure to the government of which he was the commercial 
 representative, do not seem to have entered into the considera- 
 tions which influenced his mind. 
 
 But, independently of the official relation of the plaintiff to 
 his government, the personal influence which he stipulated to 
 exert upon another officer of that government was not the sub- 
 ject of bargain and sale. Personal influence to be exercised over 
 an officer of government in the procurement of contracts, as 
 justly observed by counsel, is not a vendible article in our system 
 of laws and morals, and the courts of the United States will not 
 lend their aid to the vendor to collect the price of the article. 
 Numerous adjudications to this effect are found in the State and 
 Federal courts. This is true when the vendor holds no official 
 relations with the government, though the turpitude of the trans- 
 action becomes more glaring when he is also its officer. 
 
 In Tool Company vs. Norris, reported in the 2d of Wallace, 
 this court held that an agreement for compensation to procure a 
 contract with the government to furnish it with supplies was 
 against public policy, and could not be enforced. That was a case 
 where the compensation was made contingent upon success in pro- 
 curing the contract, and, as we shall hereafter show, should be dis- 
 tinguished from agreements for services in presenting informa- 
 tion on the subject for the consideration of the government. It 
 was a case where nothing was to be paid if no contract was ob- 
 tained, and if obtained the compensation was to be proportionate 
 to its extent. In deciding the case the court said: "Considera- 
 tions as to the most efficient and economical mode of meeting 
 the public wants should alone control in this respect the action 
 of every department of government. No other consideration can 
 lawfully enter into the transaction, so far as the government is 
 concerned. Such is the rule of public policy, and whatever tends 
 to introduce any other elements into the transaction is against 
 public policy. That agreements like the one under consideration 
 have this tendency is manifest. They tend to introduce personal 
 solicitation and personal influence as elements in the procure- 
 ment of contracts, and thus directly lead to inefficiency in the 
 
13 
 
 public service and to unnecessary expenditures of the public 
 funds. . . . All agreements for pecuniary considerations to 
 control the business operations of the government or the regular 
 administration of justice, or the appointments to public office, or 
 the ordinary course of legislation, are void as against public pol- 
 icy, without reference to the question whether improper means 
 are contemplated or used in their execution. The law looks to 
 the general tendency of such agreements, and it closes the door 
 to temptation by refusing thein recognition in any of the courts 
 of the country." 
 
 In this case the doctrine of the court in Marshall vs. Baltimore 
 and Ohio Railroad Co., reported in 16th Howard, was emphasized. 
 There compensation was claimed by the plaintiff for services ren- 
 dered in procuring the passage of a law by the legislature of 
 Virginia, upon a contract that if the law was not passed, or, if 
 passed, was not accepted and adopted or used by the stockholders, 
 no compensation should be allowed. It was held that the contract 
 was void as against public policy. The court, speaking through 
 Mr. Justice Grier, said : " Bribes in the shape of high contingent 
 compensation must necessarily lead to the use of improper means 
 and the exercise of undue influence. Their necessary consequence 
 is the demoralization of the agent who covenants for them ; he is 
 soon brought to believe that any means which will produce so 
 beneficial a result to himself are 'proper means;' and that a 
 share of these profits may have the same effect of quickening the 
 perceptions and warming the zeal of influential or 'careless' 
 members in favor of his bill." (See, also, Wood vs. McCann, 6 
 Dana, Ky., 366; Mills vs. Mills, 40 N. Y., 543.) 
 
 In Trist vs. Child, reported in 21st of Wallace, the distinction 
 is drawn between the use of personal influence to secure legisla- 
 tion and legitimate professional services in making the legislature 
 acquainted with the merits of the measures desired. Whilst the 
 former is condemned, the latter are, within certain limits, regarded 
 as appropriate subjects for compensation. There the defendant 
 had employed the plaintiff to get a bill passed by Congress for an 
 appropriation to pay a claim against the United States. It was 
 considered by the court to have been a contract for lobby services, 
 and adjudged void as against public policy. Other similar cases 
 were mentioned by the court, and, after observing that in all of 
 them the contract was held to be against public policy and void, 
 
14 
 
 it added, speaking through Mr. Justice Swayne, " We entertain no 
 doubt that in such cases, as under all other circumstances, an 
 agreement express or implied for purely professional services is 
 valid. Within this category are included drafting the petition 
 to set forth the claim, attending to the taking of testimony, col- 
 lecting facts, preparing arguments, and submitting them orally 
 or in writing, to a committee or other proper authority, and other 
 services of like character. All these things are intended to reach 
 only the reason of those sought to be influenced. They rest on 
 the same principle of ethics as professional services rendered in a 
 court of justice, and are no more exceptionable. But such ser- 
 vices are separated by a broad line of demarcation from personal 
 solicitation, and the other means and appliances which the cor- 
 respondence shows were resorted to in this case." 
 
 So, too, with reference to furnishing the government with arms 
 or supplies of any kind. It is legitimate to lay before the officers 
 authorized to contract, all such information as may apprise them 
 of the character and value of the articles offered and enable them 
 to act for the best interests of the country. And for such services 
 compensation may be had as for similar services with private 
 parties, either upon a quantum meruit, or, where a sale is effected, 
 by the ordinary brokerage commission. And here it may be 
 observed, in answer to some authorities cited, that the percentage 
 allowed by established custom of commission merchants and 
 brokers, though dependent upon sales made, is not regarded as 
 contingent compensation in the obnoxious sense of that term, 
 which has been so often the subject of animadversion by this court, 
 as suggesting the use of sinister or corrupt means for accomplish- 
 ing a desired end. They are the rates established by merchants 
 for legitimate services in the regular course of business. But 
 where, instead of placing before the officers of the government the 
 information which should properly guide their judgments, per- 
 sonal influence is the means used to secure the sales, and is 
 allowed to prevail, the public good is lost sight of, unnecessary 
 expenditures are incurred, and, generally, defective supplies are 
 obtained, producing inefficiency in the public service. 
 
 In Meguire vs. Corwine, decided at the last term, the doctrine 
 of the above cases was approved. There an agreement to pay the 
 plaintiff in consideration of his appointment as government 
 counsel one-half the fees he might recover, was adjudged in- 
 
15 
 
 valid. Transactions of the kind were declared to be "an un- 
 mixed evil;" and the court said that whether forbidden by 
 statute or condemned by public policy, "no legal right can 
 spring from such a source." (101 U. S., 108, ill.) 
 
 In the present case there is no feature that relieves the contract 
 which the plaintiff seeks to enforce from the condemnation pro- 
 nounced in the several cases cited. It is the naked case of one 
 officer of a government, to secure its purchase of arms, selling his 
 influence with another officer in consideration of a commission on 
 the amount of the purchase. The courts of the United States 
 will not lend their aid to collect compensation for services of this 
 nature ; nor does it make any difference that the Turkish govern- 
 ment did not object to the plaintiff's taking a commission on such 
 contracts, which counsel contended we must consider as admitted 
 together with the rest of the opening statement. We may doubt 
 whether we are compelled to take as correct, with the facts men- 
 tioned touching the contract in court, his statement of the law or 
 customs of other countries. But admitting this to be otherwise, 
 and that the Turkish government was willing that its officers 
 should be allowed to take commissions on contracts obtained for 
 it by their influence, that is no reason why the courts of the 
 United States should enforce them. Contracts permissible by 
 other countries are not enforceable in our courts, if they contra- 
 vene our laws, our morality, or our policy. The contract in suit 
 was made in this country, and its validity must be determined 
 by our laws. But had it been made in Turkey, and we,re it valid 
 there, it would meet with the same reprobation when brought 
 before our courts for enforcement. 
 
 The general rule undoubtedly is that the validity of a contract 
 is to be decided by the law of the place where it is made, unless 
 it is to be performed in another country; but to this, as to all 
 general rules, there are exceptions, and among these Story men- 
 tions contracts made in a foreign country to promote or reward 
 the commission of crime, to corrupt or evade the due administra- 
 tion of justice, to cheat public agents, or to affect the public rights, 
 and other contracts which in their nature are founded in moral 
 turpitude, and are inconsistent with the good order and solid in- 
 terest of society. "All such contracts," he adds, "even although 
 they might be held valid in a country where they are made, 
 would be held void elsewhere, or at least ought, to be, if the die- 
 
16 
 
 tales of Christian morality, or even of natural justice, are allowed 
 to have their due force and influence in the administration of in- 
 ternational jurisprudence." (Story's Conflict of Laws, sec. 258.) 
 
 Among such obnoxious contracts must be included all such as 
 have for their object the control of public agents by considera- 
 tions conflicting with their duty and fidelity to their principals. 
 A contract to bribe or corruptly influence officers of a foreign gov- 
 ernment will not be enforced in the courts of this country not 
 from any consideration 'of the interests of that government or 
 any regard for its policy, but from the inherent viciousness of the 
 transaction, its repugnance to our morality, and the pernicious 
 effect which its enforcement by our courts would have upon our 
 people. (Hope vs. Hope, 8 De G., M. & G., 731; Watson vs. Mur- 
 ray, 23 N. Y. Eq, 257.) 
 
 In any view of the contract here, whether it would be valid or 
 invalid according to Turkish law and customs, it is intrinsically 
 so vicious in its character and tendency, and so repugnant to all 
 our notions of right and morality, that it can have no counte- 
 nance in the courts of the United States. 
 
 Our conclusion, therefore, is that the third position of the plain- 
 tiff is not well taken. 
 
 It follows that the judgment of the court below must be affirmed ; 
 and it is so ordered. 
 
I F 
 V" 
 
MEANING AND PURPOSE OF RESERVATION IN CHARTERS OP CORPORATIONS, 
 OR LAWS AUTHORIZING THEIR FORMATION, OF A RIGHT TO ALTER OR 
 REPEAL THEM. 
 
 WATER COLLECTED IN RESERVOIRS AS IT FALLS IN RAIN IS PRIVATE PROP- 
 ERTY AND CANNOT BE APPROPRIATED TO PUBLIC USE WITHOUT COM- 
 PENSATION TO THE OWNER. SUCH COMPENSATION MUST BE FIXED BY 
 AN IMPARTIAL TRIBUNAL, AND NOT BY THE CONSUMERS OF THE WATER 
 OR THEIR AGENTS. 
 
 SUPREME COURT OF THE UNITED STATES. 
 
 OCTOBER TERM, 1883. 
 
 The Spring Valley Water Works, 
 
 Plaintiff in Error, I A ^ from ^ Q Court 
 
 VS. f ri i'f 
 
 The Board of Supervisors of the City ' 
 and County of San Francisco. 
 
 DISSENTING OPINION OF MR. JUSTICE FIELD, 
 Read Feb. 4, 1884. 
 
 I am not able to concur with the court in its decision, nor 
 can I assent to the reasons assigned for it. It seems to me that 
 it goes beyond all former adjudications in sanctioning legisla- 
 tion impairing the obligation of contracts made by a state with 
 corporations. It declares, in effect, that whenever a corporation 
 is created with the reservation that the legislature may alter or 
 repeal its charter, or under a law or constitution which imposes 
 such a reservation of power, no contract can be made between it 
 and the state, which shall bind the state any longer than she may 
 choose to be bound; that she may provide that certain rights 
 shall be secured, or that 1 certain payments shall be made in con- 
 sideration of work to be performed or capital to be advanced by a 
 corporation created under her laws; and when the work is done 
 and the capital is expended, she may legally, constitutionally, re- 
 pudiate her pledges. In other words, the decision seems to me 
 to sanction the doctrine, that a contract between a state and a 
 corporation, created with the reservation mentioned, is bind- 
 ing only upon the corporation. I shall endeavor to show that 
 this doctrine is unsound, believing that in this case, and in all 
 others where it is asserted, it will work injustice. 
 
 By a general law of California, passed April 14,1853, provision 
 was made for the formation of corporations for manufacturing, 
 mining, mechanical, and chemical purposes, or for the purpose of 
 engaging in any species of trade or commerce, foreign or domes- 
 tic. It enacted that three or more persons, who desired to form a 
 company, for any of the purposes mentioned, should make, sign, 
 
and acknowledge, before some officer competent to take the ac- 
 knowledgments of deeds, a certificate stating the corporate name 
 of the company, the objects of its formation, the amount of its cap- 
 ital stock, the time of its existence, which could not exceed fifty 
 years, the number of shares of which the stock was to consist, the 
 number of trustees and their names, who should manage the con- 
 cerns of the company for the first three months, and the name of the 
 city, or town, or county in which the principal place of business 
 of the company was to be located, and file the certificate in the 
 office of the clerk of the county in which such principal place of 
 business was located, and a certified copy thereof, under the hand 
 of the clerk and seal of the county court, in the office of the sec- 
 retary of state; and that upon filing such certificate, the persons 
 signing and acknowledging it, and their successors, should be a 
 body politic and corporate by the name stated in the certificate, 
 and have succession for the period limited, and also such powers 
 as are usually conferred upon corporate bodies. 
 
 Under this act, and an amendatory act of 1855, corporations 
 were formed for the purpose of supplying the inhabitants of the 
 city and county of San Francisco with pure, fresh water. Doubts 
 were however expressed in some quarters whether supplying the 
 water was engaging in any species of trade or commerce within the 
 meaning of those acts. (Heyneman vs. Blake, 19 Cal., 579.) 
 Accordingly, on the 22d of April, 1858, a general law was 
 passed for the incorporation of water companies, which re- 
 ferred to the provisions of the act of 1853, and of the amend- 
 atory act of 1855 ; and declared that they should apply to 
 all corporations, already formed or that might afterwards be 
 formed under said acts, for the purpose of supplying any city 
 and county, or any cities or towns, in the state, or the in- 
 habitants thereof, with pure, fresh water. On the following 
 day, April 23d, 1858, another act was passed, which author- 
 ized George H. Ensign and other owners of the Spring Valley Wa- 
 ter Works to lay down water pipes in the public streets of the city 
 and county of San Francisco. On the 19th of June, 1858, the plain- 
 tiff was organized as a corporation, referring in its certificate to these 
 last two acts; but as the special act relating to Ensign and others 
 was subsequently declared unconstitutional by the supreme court of 
 the state, the incorporation of the plaintiff rests upon the act of April 
 22d, 1858, or rather upon the acts of 1853 and of 1855, to which 
 it refers. This act of 1858 gave the corporation thus formed the 
 right to purchase or to appropriate and take possession of, and 
 use and hold all such lands and waters as might be required for 
 the purposes of the company, upon making compensation therefor; 
 with a proviso, however, that all reservoirs, canals, ditches, pipes, 
 aqueducts, and conduits constructed by the corporation, should be 
 used exclusively for the purpose of supplying the city and county 
 and the inhabitants thereof with pure, fresh water. 
 
t 
 
 Having provided for the incorporation of the company, the 
 act of 1858 proceeded to prescribe the terms upon which water 
 should be supplied to the city and county, and to their inhabitants, 
 and the compensation which the company should receive therefor. 
 It declared that the company should furnish pure, fresh water to 
 the inhabitants for family uses, so long as the supply permitted, 
 at reasonable rates, and without distinction of persons, upon 
 proper demand therefor, and should furnish water, to the extent 
 of its means, to the city and county," in case of tire or other great 
 necessity, free of charge." The act further declared that the 
 rates to he charged for water should be determined by a board of 
 commissioners, to be selected as follows: two by the city and 
 county authorities, and two by the water company; and in case 
 the four could not agree to the valuation, then, in that case, the 
 four should choose a fifth person, and he should become a mem- 
 ber of the board; and if the four commissioners could not agree 
 upon a fifth, then the sheriff of the county should appoint him ; and 
 that the decision of a majority of the board should determine the 
 rates to be charged for water for one year, and until new rates 
 should be established. The act also declared that the board of su- 
 pervisors might prescribe such other proper rules relating to the 
 delivery of water, not inconsistent with the act and the laws and 
 constitution of the state; and that the corporation should have the 
 right, subject to the reasonable direction of the city authorities as 
 to the mode and manner of exercising it, to use so much of the 
 streets, ways, and alleys of the city and county, or of the public 
 road therein, as might be necessary for laying its pipes for con- 
 ducting water into the city or county, or through any part 
 thereof. 
 
 The certificate of incorporation of the plaintiff declared that 
 the objects for which the company was formed were to intro- 
 duce pure, fresh water into the city arid county of San Fran- 
 cisco, and into any part thereof, from any point or place, 
 for the purpose of supplying the inhabitants of the city and 
 county with the same, and to do and transact all such busi- 
 ness relating thereto as might be necessary and proper, not in- 
 consistent with the laws and constitution of the state. 
 
 The necessary supply of water could not be obtained from any 
 natural streams or lakes on the peninsula, upon the upper end of 
 which the city and county are situated. A small lake near the 
 city furnished an insufficient supply and of inferior quality. 
 The company, therefore, soon after its incorporation, undertook to 
 collect the required quantity in artificial reservoirs, as it descended 
 in rain from the heavens. 
 
 At a distance of about twenty miles from the city, there 
 is a natural ravine lying between the mountains near the ocean 
 and the hills bordering the Bay of San Francisco. The company 
 acquired the lands within this ravine and on its sides, amounting, 
 
as represented by counsel, to eighteen thousand acres, and erected 
 in it heavy walls at long distances apart, thus making great reser- 
 voirs, into which the water was collected until lakes were formed 
 extending several miles in length. "With aqueducts, pipes, and 
 other conduits the water thus collected was carried to the city and 
 distributed in mains. It is said that the cost of these works to the 
 company amounted to nearly fifteen millions of dollars. Before 
 their construction and the introduction of this water, the in- 
 habitants of the city were poorly and inadequately supplied. 
 With the completion of the works of the plaintiff all this was 
 changed. Water was furnished to all persons calling for it at 
 their houses, and if desired in every room; and to the city in 
 abundance for all its needs. 
 
 The law of 1858, as stated, required the corporation to 
 furnish water, to the extent of its means, to the city and 
 county, " in case of fire or other great necessity, free of 
 charge." This provision has been construed by the supreme 
 court of the state to require the company also to furnish, 
 without charge, water to sprinkle the streets of the city, to 
 flush its sewers, and to irrigate its public squares and parks. 
 Its effect will be only partially appreciated by those who 
 judge merely from the size of the city, and the fact that 
 the residences are chiefly constructed of wood. There are 
 other uses for a much larger supply of water. The city is 
 situated at the upper end of a peninsula whose width is 
 only a little over six miles. The land there consists prin- 
 cipally of a succession of sand hills, and the daily breezes 
 of the ocean keep the sand in almost constant motion, ex- 
 cept where vegetation has fixed its roots. For this vegetation 
 water is essential. With it, every plant will thrive, even in 
 the sand, and shrubs and trees will grow in great luxuriance. The 
 absence of water from them for even a few months will cause the 
 plants and shrubs to droop, wither, and perish. The public squares 
 of the city are numerous, arid the park termed the u Golden 
 Gate Park," because it is near the entrance of the bay which 
 is termed the " Golden Gate " covers more than a mile square 
 of these sand hills. On these squares and this park, the con- 
 stant use of water from the reservoirs of the plaintiff is nec- 
 essary to keep the grasses, plants, and shrubs alive. Yet all 
 water needed for these purposes is, by the law in question, to 
 be furnished without change. That was one of the burdens 
 imposed upon the plaintiff, in addition to the requirement 
 that its costly works, consisting of aqueducts extending nearly 
 thirty miles out of the city, and mains within it exceeding 
 one hundred miles, should be used exclusively for the purpose of 
 supplying the city and county with water. The reasonable rates 
 allowed for the water furnished to the inhabitants of the 
 city and county constituted the only compensation of the. com- 
 
pany for the enormous outlay to which it was necessarily sub- 
 jected, and for all the benefits it undertook to confer. The law 
 in declaring that a company formed under it should supply water 
 to the city and county in cases of great necessity free of charge, 
 and to their inhabitants on demand at reasonable rates, in 
 effect declared that the company complying with such terms 
 should receive those rates for water thus supplied to the in- 
 habitants. When, therefore, the plaintiff organized under the 
 law introduced the water, a contract was completed between 
 it on the one part and the state on the other, that so 
 long as it existed and furnished the water as required it 
 should receive this compensation. The provision for the 
 creation of an impartial tribunal to determine each year what 
 rates should be deemed reasonable, was the very life of the 
 stipulation for a reasonable compensation. It would not have 
 done to leave the compensation to be fixed by the company alone, 
 as it might thus make its charges exorbitant; it would not have 
 done to leave the rate to be fixed by the city authorities alone, 
 as they would be constantly under a great pressure to reduce the 
 rates below remunerative prices, as the representatives of the city, 
 itself a large consumer for public buildings, and as representatives 
 of individual consumers, by whom they were elected and to whom 
 they were to look for the approval of their acts, and because the 
 individuals composing those authorities would also be consumers 
 of the water equally with their constituents. It was, therefore, 
 provided that the rates should be fixed by commissioners, to be 
 selected as stated above. 
 
 It would be difficult to conceive of a tribunal fairer in its organ- 
 ization, or more likely to act justly and wisely for both parties, and 
 guard equally against extortion in prices on the one hand and their 
 unjust reduction on the other. Such a tribunal was formed and, from 
 time to time, reasonable rates for water were established by it. But 
 in 1879 the people of California formed a new constitution, which 
 declared that the use of all water then appropriated, or that might 
 thereafter be appropriated, for sale, rental, or distribution, was a 
 public use, and subject to the regulation and control of the state in 
 the manner to be prescribed by law; that the rates or compensation 
 to be collected by any person, company, or corporation for the use 
 of water supplied to any city and county, or to its inhabi- 
 tants, should be fixed annually by the board of supervi- 
 sors of the city and county, or other governing body of the 
 same, by ordinance or otherwise, in the manner that other 
 ordinances or legislative acts or resolutions are passed by such 
 body, and should continue in force for one year and no longer; 
 that such ordinances or resolutions should be passed in the month 
 of February of each year, and take effect on the first day of July 
 thereafter. And it further declared that any board or body failing 
 to pass the necessary ordinances or resolutions fixing water rates, 
 
when necessary, within such time, should be subject to peremptory 
 process to compel action at the suit of any party interested, arid 
 should be liable to such further processes and penalties as the leg- 
 islature might prescribe; and that any person, company, or cor- 
 poration collecting water rates in any city and county, otherwise 
 than as so established, should forfeit its franchises and water 
 works to the city and county, where the same are collected, for 
 public use." (Art. XIV., sec. 1.) 
 
 In July, 1878, a vacancy occurred in the board of commissioners, 
 which the city authorities, after the adoption of the new consti- 
 tution, refused to fill, contending that, under its provisions, they 
 were authorized to fix the water rates. The present proceeding 
 was to compel them to proceed and complete the board; and the 
 question is whether that constitution, in vesting the entire power 
 in the board of supervisors the governing authority of the city 
 and county of San Francisco impairs the contract between the 
 state and the company, within the prohibition of the federal Con- 
 stitution. There is no question of the continuance of a virtual 
 monopoly in water, as supposed by the court. There is no- 
 thing relating to a monopoly in the case. Any five or more 
 persons in California can, at any time, form themselves into a 
 corporation to bring water into the city and county of San Fran- 
 cisco on the same terms with the plaintiff; and such new corpora- 
 tion can, in the same way, form reservoirs in the ravines in the 
 hills and collect water for sale, or bring water froto the moun- 
 tain lakes. Until within a few years any three or more persons 
 could form such a corporation. The statement that the plaintiff has 
 a monopoly of any kind in water, and desires to secure forever cer- 
 tain charges, must therefore be taken as one inadvertently made, 
 without due consideration of the facts. The only contention in 
 the case is, whether the clause of the new constitution abrogating 
 the stipulation for reasonable rates to be established by a com- 
 mission created as mentioned, is a valid exercise of power by 
 the state. 
 
 That the provision of the law of 1858, making that stipulation, 
 was a part of the contract between the state and the company, is not 
 denied by the court; nor is it denied that it was also a part of the 
 contract that the " reasonable rates" should be determined by the 
 commissioners designated. But the position taken, if I understand 
 it, is, that the provision for their appointment is only that 
 the rates shall be established by an impartial tribunal, not neces- 
 sarily by one created as there prescribed; and that the state has a 
 right to determine what tribunal shall be deemed an impartial 
 one, and, by the fourteenth article of the new constitution, has 
 done so and made the board of supervisors that tribunal; and that 
 this action was within the power reserved by the original act of 
 incorporation. 
 
 Of course this view destroys all the substance and value 
 
of the stipulation for reasonable rates and renders it utterly 
 delusive. The very object of the creation of the tribunal 
 designated in the law of 1858 was to take the establishment of 
 the rates from the city authorities, who, it was believed 
 then, as it is known now, would be influenced and controlled 
 by their relation as representatives of the consumers by whom 
 they are elected, as well as by the fact that the individ- 
 ual members composing those authorities would be themselves 
 consumers. Admitting for the argument that the meaning of the 
 provision is only that the company shall have an impartial tribu- 
 nal, and not necessarily the one created as designated, it seems to 
 me to be plain that such new tribunal cannot consist of the city 
 authorities, against whose exclusive control the original contract 
 expressly stipulated. Placing the regulation of rates with them 
 is not furnishing another tribunal equally impartial with the one 
 mentioned. From the very nature of its creation and its relation 
 to others, the board of supervisors, an elective body, cannot be 
 impartial. No tribunal, however honorable and high the char- 
 acter of the persons composing it may be, is, or can be, in a 
 legal sense, impartial, when they are individual!}' interested, 
 and the tribunal itself, in its representative character, is inter- 
 ested in the determination to be made. 
 
 It need hardly be said that it is an elementary principle of nat- 
 ural justice that no man shall sit in judgment where he is inter- 
 ested, no matter how umirnpeachable his personal integrity. Tho 
 principle is not limited to cases arising in the ordinary courts of 
 law in the regular administration of justice, but extends to all 
 cases where a tribunal of any kind is established to decide upon 
 the rights of different parties. 
 
 In "City of London vs. Wood (12 Modern, 687), it was 
 held by the King's Bench that an action in the names of the 
 mayor and commonalty of London could not be brought be- 
 fore the court held by the mayor and aldermen; for, said Chief 
 Justice Holt, "it is against all laws that the same person should 
 be party and judge in the same cause;" and to the objection that 1 
 the Lord Mayor, as the head of the corporation, acted in his po- 
 litical capacity and judged in his natural capacity, he answered : 
 " It is true he acts in different capacities, yet the person is the 
 same, and, the difference in the capacities in which he acts does 
 not make a difference," which would remove the disqualification. 
 
 The true doctrine on this subject is stated with great clearness 
 by the Supreme Court of Massachusetts in the recent case of Hall vs. 
 Thayer (105 Mass., 221), where it was held that thejudge of probate 
 was disqualified by personal interest to appoint his wife's brother 
 administrator of the estate of a deceased person of which her father 
 was principal creditor. Referring to the provision of article 29 
 of the Declaration of Rights of that state, u that it is the right of 
 every citizen to be tried by judges as fair, impartial and inde- 
 
8 
 
 pendent as the lot of humanity will admit," the court said: "The 
 provision rests upon a principle so obviously just and so necessary 
 for the protection of the citizen against injustice that no argument 
 is necessary to sustain it, but it must be accepted as an elementary 
 truth. The impartiality which it requires incapacitates one to act 
 as judge in a matter in which he has any pecuniary interest, or 
 in which his near relative or connection is one of the parties. It 
 applies to civil as well as criminal causes, and not only to judges 
 of courts of common law and equity and probate, but to special 
 tribunals and to persons authorized on a special occasion to decide 
 between parties in respect to their rights." And, after referring to 
 several decisions where the principle had been applied, the court 
 said: " These decisions show that the provision is to have no tech- 
 nical or strict construction, but is to be broadly applied to all classes 
 of cases where one is appointed to decide the rights of his fellow- 
 citizens." 
 
 I admit that the interest wbicb will disqualify a special tri- 
 bunal from acting in a matter affecting conflicting rights 
 of parties must be a direct pecuniary interest either in its 
 members or in the persons represented by it, which may be 
 increased or diminished by the determination reached. Such 
 is the precise condition of the board of supervisors of the 
 city and county of San Francisco with respect to the prices 
 to be paid for the water furnished by the plaintiff. The con- 
 sumers of the water constitute, with few exceptions where a 
 well may have been sunk, the entire people of that district, 
 including the supervisors themselves, and they are all, there- 
 fore, directly interested to reduce its price. If the board were to 
 seek to acquire land whereon to open a new street, or to erect public 
 buildings, no one w r ould pretend that the compensation, which it 
 would be necessary to make to tbe owner, could be fixed by the 
 board, or by appraisers whom it should appoint. It would be 
 on that subject an interested party, and, therefore, on the prin- 
 ciple already stated, could not act in the matter where the rights 
 of others were concerned. 
 
 The Supreme Court of Wisconsin held a provision of law 
 void which authorized the common council of a municipal 
 corporation to appoint jurors to assess damages to the owner 
 of property taken for public uses of the city, in the place 
 of others previously appointed for that purpose by a judge 
 of the circuit or county court, but who had neglected or refused 
 to serve. " A majority," said the court, " or even all of the 
 jurors selected to establish the necessity of taking the property, 
 may refuse to act in fixing the amount of damages, in which case 
 the common council, one of the parties ex parte, may appoint a 
 jury which shall determine the amount of damages the city must 
 pay. It is impossible to comment in a proper manner upon such a 
 provision which coufounds all our notions of fairness, justice, and 
 right." (Lamsden vs. Milwaukee City, 8 Wis., 485, 494.) 
 
9 
 
 If instead of land the board should desire to acquire per- 
 sonal property fuel for the public buildings of the city, 
 paving material for its streets, engines for its fire department, 
 or any other property for its needs no one would pre- 
 tend, independently of any law on the subject, that there would 
 be any justice or fairness in allowing that body alone to deter- 
 mine the price to be paid. 
 
 There will always be, as I have said, a great pressure 
 upon the board by tbe people electing it to regulate the price 
 of tne water in their interest, without regard to that of 
 the company. The influence thus exerted to warp the judg- 
 ment of the members and change the character of the body 
 from that of an impartial tribunal to one acting in the interest 
 of its constituents, every practical man dealing with the corpo- 
 ration would appreciate and act upon. All the influences usu- 
 ally brought to bear at elections to secure the choice of those 
 who will carry out the wishes of the voters, we should expect to 
 see applied to secure the election of candidates thus empowered 
 to fix the price of the article which the voters daily consume. 
 And what we might thus expect has occurred at every election 
 since the new constitution went into effect. A suit was recently 
 brought by the plaintiff* in the Circuit Court of the United States 
 for the District of California against the mayor and supervisors 
 of San Francisco to enjoin the passage of an ordinance, then 
 proposed, to fix the price of its water under this new constitu- 
 tion. Among other reasons urged upon the consideration of 
 the court was the fact that the mayor and supervisors, before 
 the election, had pledged themselves to make a material re- 
 duction in the rates which, if carried out, the company con- 
 tended would be destructive of its interests. The fact that 
 such pledges were made was not controverted, but the court 
 answered that "if it be competent at all, under the provision in 
 question, for the people of San Francisco through their represen- 
 tatives in the board of supervisors to pass the proposed ordinance, 
 it is difficult to perceive why, in looking around for agents or 
 representatives to carry out their will, it is unlawful to ask in ad- 
 vance whether those seeking to represent them will obey their 
 command in these particulars, or to require a pledge to that effect 
 before committing the trust to them." And in the same case the 
 court referred to the clause in the new constitution declaring that 
 any corporation collecting water rates in any city and county 
 otherwise than as established by the board of supervisors of the 
 district, should forfeit its franchises and water works to the city 
 and county for the use of the public, and said : " It would seem 
 to be only necessary to make this brief statement of the case 
 to enable one of ordinary intelligence, endowed with a rea- 
 sonable share of moral sense, to perceive the monstrous injus- 
 tice of thus placing the large investments of complainant, made 
 
10 
 
 under the stimulus of the inducement held out by the act of 1858, 
 at the absolute mercy of an irresponsible public sentiment, or of 
 public cupidity. This last provision would seem to offer a large 
 premium for the perpetration of a wrong a large inducement to 
 the purchaser (the consumer) to fix the price at unremunerative 
 rates, in order to secure the large property by forfeiture and con- 
 fiscation, or to so largely diminish its value as to force a sale to 
 the city at a price far below its real value. It was alleged in the 
 argument, and not denied, to be a matter of public history and 
 public notoriety, of which we are authorized to take notice, that 
 such designs have been openly and publicly avowed and advo- 
 cated by public speakers." 
 
 It is difficult to understand how any just man, carefullj T consider- 
 ing what has been thus stated, can hold that the board constitutes an 
 impartial tribunal such as the law of 1858 assured the plaintiff, as an 
 inducement for its large expenditures, it should always have to 
 determine what rates are reasonable. The great wrong and in- 
 justice done to the plaintiff by subjecting the determination of the 
 rates it shall receive for its property to the judgment of a tri- 
 bunal thus deeply interested against it, and impelled to reduce 
 them by an exacting and constantly pressing constituency, are 
 declared by the court to be justified by the law and constitution 
 of the state, and in no way forbidden by the contract clause of the 
 Federal Constitution which was designed to insure the observance 
 of good faith in the stipulation of parties against state ac- 
 tion. Authority to interfere with and destroy the contract rights 
 of the plaintiff is claimed, as already stated, under the power 
 reserved to the state by its constitution, in force at the time, to 
 alter or repeal the law pursuant to which the plaintiff was incor- 
 porated. Such authority is also asserted from the public interest 
 which the state is alleged to have acquired in the use of the 
 water furnished by the plaintiff. 
 
 Upon each of these grounds I have a few words to say. The 
 clause of the state constitution referred to in the first of them is 
 in these words: " Corporations may be formed under general 
 laws, but shall not be created by special act. except for municipal 
 purposes. All general laws and special acts passed pursuant to 
 this section may be altered from time to time or repealed." 
 
 It is contended that the right thus reserved to alter or repeal 
 the general law, under which the plaintiff was incorporated, 
 authorized the state to exercise greater control over the business 
 and property of the company than it could have exercised over like 
 business and property of natural persons; that as the repeal of the 
 general law would put an end to the corporation, the state could 
 prescribe the conditions of its continued existence, and, therefore, 
 could legitimately impose any restrictions and limitations, however 
 burdensome, upon the subsequent possession and use of its prop- 
 erty, and require the corporation to comply with them. Indeed, 
 
11 
 
 there seems to be an impression in the minds of counsel, and, from 
 the language not infrequently used by some judges, in their minds 
 also, that the reservation in charters of corporations and in laws 
 authorizing the formation of corporations, of a power to alter or 
 repeal such charters or laws, operates as a gift to the state and 
 to the legislature of uncontrolled authority over the business and 
 property of the corporations. And yet no doctrine is more un- 
 founded in principle or less supported by authority. When car- 
 ried out in practice, it is utterly destructive of all rights of prop- 
 erty of corporate bodies. Those who entertain it overlook the 
 occasion which led to the adoption of the clause containing the 
 reservation, and the object it was designed to accomplish. 
 
 When this court, in the Dartmouth College case, decided that 
 the charter of a private corporation was a contract between the 
 state and the corporators, and therefore within the protection of 
 the inhibition of the Federal Constitution against impairment of 
 contracts by state legislation, it was suggested by Judge 
 Story, who concurred in the decision, that this unalterable 
 and irrepealable character of the contract might be avoided by a 
 reservation of power in the original charter. " In my judgment," 
 he said, " it is perfectly clear that any act of a legislature which 
 takes away any powers or franchises vested by its charter in a 
 private corporation or its corporate officers, or which restrains or 
 controls the legitimate exercise of them, or transfers them to other 
 persons without its assent, is a violation of the obligation of that 
 charter. If the legislature mean to claim such an authority, it 
 must be reserved in the grant. The charter of Dartmouth Col- 
 lege contains no such reservation, and I am, therefore, bound to 
 declare that the acts of the legislature of New Hampshire now in 
 question do impair the obligation of that charter, and are conse- 
 quently unconstitutional and void." (4 Wheaton, 712.) In 
 another part of his opinion he refers to an early decision of the 
 Supreme Court of Massachusetts, which had declared that the 
 rights legally vested in a corporation could not be controlled or 
 destroyed by a subsequent statute, " unless a power for that purpose 
 be reserved to the legislature in the act of incorporation" (4 
 Wheaton, 708.) 
 
 When the general character of the decision in the Dartmouth 
 College case became known, the states acted very generally upon 
 the suggestion of Judge Story, and few charters were subsequently 
 granted without a clause reserving to the legislature the power to 
 alter or repeal them. In some instances a general law was enacted, 
 declaring that all corporations subsequently created should be sub- 
 ject to this reserved power; and in some cases, where a new con- 
 stitution was adopted by a state, a clause of similar import was 
 inserted. The object of the reservation, in whatever form ex- 
 pressed, was to preserve to the state control over the corporate 
 franchises, rights, and privileges which, in her sovereign or legis- 
 
12 
 
 lative capacity, she had called into existence; in other words, to 
 enable her to annul or modify that which she had created. 
 It was not its object to interfere with contracts which the cor- 
 poration, when once created, might make, nor with the property 
 which it might acquire. 
 
 Such is the purport of our language in Tomlinson vs. Jessup, 
 (15 Wallace, 458,) where we stated the object of the reservation to 
 be " to prevent a grant of corporate rights and privileges in a form 
 which will preclude legislative interference with their exercise, if 
 the public interest should, at any time, require such interference; " 
 and that " the reservation affects the entire relation between the 
 state and the corporation, and places under legislative control all 
 rights, privileges, and immunities derived, by its charter, directly from 
 the state" In Kailroad Company #,9. Maine, (96 U. S., 510,) where 
 a law containing a similar reservation was under consideration, we 
 expressed substantially the same thing; that by the reservation the 
 state retains the power to alter the act of incorporation in all 
 particulars constituting the grant to it of " corporate rights, privi- 
 leges, and immunities ; " and that " the existence of the corporation 
 and its franchises and immunities, derived directly from the state," 
 are thus kept under her control, adding, however, " that rights and 
 interests acquired by the company, not constituting a part of the 
 contract of incorporation, stand upon a different footing." 
 
 As thus seen, the reservation applies only to the contract of in- 
 corporation, to the corporate existence, franchises, and privileges 
 granted by the state. With respect to everything else, it 
 gives no power that the state would not have had without 
 it. Necessarily it cannot apply to that which the state 
 never possessed or created, and, therefore, could not grant. 
 It leaves the corporation, its business and property, exactly 
 where they would have been, had the supreme court held, in 
 the Dartmouth College case, that charters are not contracts 
 within the constitutional prohibition against legislative impair- 
 ment-. It accomplished nothing more; and any doctrine go- 
 ing beyond this would be subversive of the security by which 
 the property of corporations is held, and in the end would 
 destroy the security of all private rights. Behind the arti- 
 ficial bod} T created by the legislature stand the corporators, 
 natural persons, who have united their means to accomplish an 
 object beyond their individual resources, and who are as much 
 entitled, under the guarantees of the Constitution, to be secured in 
 the possession and use of their property thus held as before they had 
 associated themselves together. Whatever power the state may pos- 
 sess over corporations in their creation or in passing or amending 
 the laws under which they are formed and altered, it cannot 
 withdraw them from the guarantees of the Federal Consti- 
 tution. As I said on another occasion: " The state cannot 
 impose the condition that the corporation shall not resort to 
 
13 
 
 the courfs of law for the redress of injuries or the protection 
 of its property; [or when in court, that it shall be subjected to 
 different rules of evidence and be required to prove by two 
 witnesses what individuals may establish by one;] that it shall 
 make no complaint if its goods are plundered and its premises in- 
 vaded ; that it shall ask no indemnity if its lands be seized for public 
 use, or be taken without due process of law, or that it shall submit 
 without objection to unequal and oppressive burdens arbitrarily im- 
 posed upon it; that, in other words, towards it and its property the 
 state may exercise unlimited and irresponsible power. Whatever 
 the state may do even with the creations of its own will, it must do 
 in subordination to the inhibitions of the Federal Constitution. It 
 may confer by its general laws upon corporations certain capacities 
 of doing business, and of having perpetual succession in its mem- 
 bers. It may make its grant in these respects revocable at pleasure ; 
 it may make it subject to modifications; it may impose conditions 
 upon its use, and reserve the right to change these at will. But 
 whatever property the corporation acquires in the exercise of the 
 capacities conferred, it holds under the same guarantees which 
 protect the property of individuals from spoliation. It cannot be 
 taken for public use without compensation; it cannot be taken 
 without due process of law; nor can it be subjected to burdens 
 different from those laid upon the property of individuals under 
 like circumstances." 
 
 In Detroit vs. Ho well Plank Road Company, the Supreme 
 Court of Michigan, in considering this subject, uses similar 
 language. Speaking by Mr. Justice Cooley, it said : " But 
 for the provision of the Constitution -of the United States which 
 forbids impairing the obligation of contracts, the power to 
 amend and repeal corporate charters would be ample without 
 being expressly reserved. The reservation of the right leaves the 
 state where any sovereignty would be, if unrestrained by express 
 constitutional limitations and with the powers it would then pos- 
 sess. It mighty therefore, do what it would be admissible for any 
 constitutional government to do when not thus restrained, but it 
 could riot do what would be inconsistent with constitutional prin- 
 ciples. And it cannot be necessary at this day to enter upon a 
 discussion in denial of the right of the government to take from 
 either individuals or corporations any property which they may 
 rightfully have acquired. In the most arbitrary times such an act 
 was recognized as pure tyranny, and it has been forbidden in 
 England ever since Magna Charter,, and in this country always. It 
 is immaterial in what way the property was lawfully acquired, 
 whether by labor in the ordinary vocations of life, by gift or de- 
 scent, or by making profitable use of a franchise granted by the 
 state, it is enough that it has become private property, and it is 
 then protected by the ' law of the land.'" (43 Mich. 140-147.) 
 
 Applying these views to the case before us it will be seen that 
 
14 
 
 the right asserted by the state, with respect to the property of the 
 Spring Valley Water Company, cannot be upheld. The state 
 gave to certain parties the right to form themselves into that 
 corporation for the purpose of conveying pure and fresh water to 
 the city and county of San Francisco. It did not grant to them 
 the reservoirs by which that water is accumulated; it did not grant, 
 to them the aqueducts by which the water is carried to the city 
 and county; it did not grant to them the pipes by which the water 
 is distributed through the city; it only gave facilities for the con- 
 veyance of the water to the city and for its distribution. It could 
 not, therefore, under its reserved power over the corporation, appro- 
 priate these reservoirs, aqueducts, and mains without making com- 
 pensation for them; nor could it divert them, except upon like 
 terms, from the purposes for which they were constructed, to the 
 supplying of the city and county with 'salt instead of fresh water, 
 or with gas or oil, or devote them to other uses. 
 
 The water itself is the property of the company. It was not 
 taken from a running stream; nor from any Jake ; nor from 
 any source where the government could assert that it alone 
 had the right to control and use it. It was collected by the 
 company as it descended from the heavens. Whatever may 
 be the differences of opinion as to the ownership of running 
 waters, or of waters of navigable streams, or of lakes, it has 
 never been doubted that water collected by individual agency, 
 from the roof of one's house, or in hogsheads, barrels, or reser- 
 voirs, as it descends from the clouds, is as much private property 
 as anything else that is reduced to possession, which otherwise w r ould 
 he lost to the uses of man. Indeed, it is a general principle of 
 law, both natural and positive, that where a subject, animate or 
 inanimate, which otherwise could not be brought under the con- 
 trol or use of man, is reduced to such control or use by indi- 
 vidual labor a right of property in it is acquired by such labor. 
 The wild bird in the air belongs to no one, but when the 
 fowler brings it to the earth and takes it into his possession it 
 is his property. He has reduced it to his control by his own labor, 
 and the law of nature and the law of society recognise his exclusive 
 right to it. The pearl at the bottom of the sea belongs to no one, 
 but the diver who enters the waters and brings it to light has 
 property in the gem. He has, by his own labor, reduced it to pos- 
 session, and in all communities and by all law his right to it is 
 recognised. So the trapper, on the plains and the hunter in the 
 north have a property in the furs they have gathered, though the 
 animals from which they were taken roamed at large and be- 
 longed to no one. They have added by their labor to the uses of 
 man an article promoting his comfort which, without that labor, 
 would have been lost to him. They have a right, therefore, to the 
 furs, and every court in Christendom would maintain it. So when 
 the tisherrnan drags by his net iish from the sea, he has a property 
 
15 
 
 in them, of which no one is permitted to despoil him. It was 
 in conformity with this principle that this court, in Atchison rs. 
 Peterson, (20 Wall., 512,) in speaking of the general occupation 
 of the public lands made free for mining, and the rights of the 
 first appropriate? of lands containing mines, said that " He who 
 h'rst connects his own labor with property thus situated, and open 
 to general exploration, does, in natural justice, acquire a better 
 right to its use and enjoyment than others who have not given such 
 labor. So the miners, on the public lands throughout the Pacific 
 States and Territories, by their customs, usages, and regulations, 
 everywhere recognize the inherent justice of this principle, and 
 the principle itself was, at an early day, recognized by legislation 
 and enforced by the courts of those states arid territories." 
 
 When the plaintiff brought water to the city of San Francisco, it 
 had a right to sell the property at such reasonable prices as it could 
 obtain, as it might have sold grain, oV fruit, or coal, had it brought 
 those articles to market. If the state could interfere and insist 
 that such reasonable prices should be determined by other au- 
 thority than the company, that authority must also have been 
 other than that of the consumers or of their agents. Of the limi- 
 tations upon the power of the state in this respect, independently 
 of its contract, and for what compensation it can compel the com- 
 pany to sell its property, I shall hereafter speak. It is sufficient 
 at present to say that the pow r er reserved over the act of incorpora- 
 tion gave the state no control over such compensation which it 
 did not possess without the reservation. Its control here is limited 
 by the stipulations of the contract with the company. The legis- 
 lature can, of course, repeal the act under which the plaintiff was 
 incorporated, and thus put an end to its corporate existence, but so 
 long as the corporation remains the contract remains with all its 
 binding force. 
 
 The contract between the state and the corporators, by which 
 the plaintiff became a corporation, is not to be confounded with 
 the contract between the state and the corporation when cre- 
 ated. Although the two contracts are contained in the same law,, 
 they are to be treated as separate and distinct from each other as if 
 they w r ere embraced in different statutes. Private corporations, by 
 the constitution of California, can be formed only under general 
 law T s, but all that is embraced by a general law of that character 
 may not necessarily be a part of the contract of incorporation of 
 parties forming themselves into a corporate body under it. It 
 may refer to matters having no relation to corporate bodies, such 
 as rules of evidence, forms of procedure, or descent of prop- 
 erty; and it may contain contracts for specific work by the cor- 
 poration created. No greater legislative control over such matters 
 w r ould result from their association in the same law which 
 authorized the formation of the corporation, than if they 
 were contained in separate acts. If, for example, the plaintiff 
 
16 
 
 had been incorporated to< bring to the city and county of San 
 Francisco, instead of water from its reservoirs, granite from 
 its quarries and the act had provided that, having brought 
 the granite, it should sell it to individuals at a designated 
 price per cubic foot for paving the sidewalks, and to the city for 
 the construction of a court room, or a public hall, would it be pre- 
 tended that by virtue of its reserved power over the corporation 
 the state could compel the sale and delivery of the granite at a 
 different price? The natural and just answer would he that the 
 contract with the corporation for the purchase of the granite is a 
 different matter from the contract by which the corporators be- 
 came a corporation; and would the answer be less just and 
 perfect if the contract had stipulated that the price of the 
 stone should be fixed by a commission of stone-cutters, or parties 
 familiar with the value of the material ? The different mode of 
 reaching the price would work no change in the binding force of 
 the contract. 
 
 Again, suppose that the plaintiff had been incorporated with 
 power to loan money under an act requiring it to make a loan 
 to the city at a specified rate of interest, and acting upon 
 the authority, it had made a loan for years at such rate, could 
 the state, by virtue of its reserved power over the corporation 
 created, compel it to receive a less rate of interest than that stip- 
 ulated, and make further loans at such reduced rates ? The ob- 
 vious answer to such a question would be that the contract author- 
 ized by the law was not the contract by which the lender became a 
 corporation, and it is to the latter alone that the reserved power 
 applies. Would it make any difference if the contract had stipu- 
 lated that the interest should be annually fixed by the Secretary 
 of the Treasury, or a commission appointed by him? The 
 mode of reaching the rate of interest would not affect the 
 binding character of the contract. The cases thus supposed 
 in no respect differ in principle from the one before us. 
 If the contract in this case cannot be upheld, the contracts 
 in those could not be. Indeed, no contract between the 
 state and a corporation created with the reservation mentioned 
 could bind the state, though every term of obligation and 
 every pledge of honor which language could express should 
 be embodied in it. 
 
 It must be, that it is within the competence of the sovereign 
 power of a state to make a- bargain which it cannot break. As 
 observed by one of the distinguished counsel who argued 
 this case, the very notion of the existence of a state and it 
 does not require a constitutional provision for that is that, 
 being a political body, it has a right to make a business ar- 
 rangement with a particular party, corporate or personal, about 
 a particular thing, which shall bind both. And in my 
 judgment it is the plain duty of the court, when such an 
 
17 
 
 arrangement comes up for consideration, to assert its binding 
 character and, so far as practicable, bold the parties to it. 
 
 I proceed to consider the position that the public of California 
 had acquired such an interest in the water of the plaintiff as to 
 authorize the state to fix the rates at which it shall be sold. The 
 new constitution declares in its fourteenth article that the use of 
 all water appropriated for sale, rental, or distribution is a public 
 use, and subject to the regulation and control of the state. I 
 do not suppose that by this declaration the state intended to take 
 possession of or assert an interest in all the water within its limits 
 appropriated for sale, rental, or distribution, without regard to the 
 rights of individuals who may have collected it in reservoirs, or 
 stored it in other ways to enable them to dispose of it advanta- 
 geously. A proceeding to enforce such a declaration would be 
 open to constitutional objections against taking private property 
 for public use without compensation to the owners. The object 
 of the constitutional declaration, as I understand it, was to assert 
 such a control by the state over the sale and distribution of water 
 as to prevent it from being diverted bj* those who had appropri- 
 ated, or might appropriate it, from the necessary uses of the public, 
 or from being held at extravagant prices. To such a declaration 
 no one can reasonably object, and if carried out with the observ- 
 ance of the rules which govern in other cases where private property 
 is taken for public use, no legal obstacle can be raised to its en- 
 forcement. 
 
 The right to take private property for public use is inherent in 
 all governments. It requires no* constitutional declaration for its 
 recognition; it appertains to sovereignty. The conditions upon 
 which it shall be exercised are the only matters requiring consti- 
 tutional guarantees, and those conditions are that just compensa- 
 tion shall be made to the owner of the property, and that this 
 compensation shall be ascertained by an impartial tribunal. A 
 compliance with these conditions is essential, without which the 
 taking of the property would % be a mere exercise of arbitrary 
 power not recognized as legitimate by any principles obtaining in 
 the government of this country, state or federal. 
 
 When the use is public and within certain limits, the state may 
 determine that it is so any property which the state may deem ne- 
 cessary for that use it may appropriate. The necessity or expedi- 
 ency of the appropriation is not a matter for judicial inquiry. The 
 supplying of pure water to a city and its inhabitants is a matter of 
 public concern. The taking of water held by private parties for that 
 purpose is an appropriation of it for a public use; and the same 
 conditions for its lawful appropriation must be followed as when 
 property of a different character is thus taken. There must be 
 the just compensation for it to the owner, and the impartial tri- 
 bunal to appraise its value and determine the amount of the com- 
 pensation. In Gardner vs. The Trustees of the Village of 
 2 
 
18 
 
 Newburg, Chancellor Kent held that the owner of land over which 
 a stream of water ran had a legal right to the use of the water, 
 of which he could not be deprived against his consent without 
 just compensation for it. A statute of New York had authorized 
 the trustees of the village to supply its inhabitants with water, 
 and the Chancellor enjoined them from diverting for that purpose 
 the water of a stream which ran through the plaintiff's land, be- 
 cause the statute had made no provision for compensation for it. 
 What gives special significance to this decision, is the fact that the 
 constitution of New York at that time contained no provision, 
 such as is found in all state constitutions since adopted, against 
 taking private property, for public use without compensation. 
 The Chancellor showed that on general principles of justice 
 recognized by all free governments, and by the writings of emi- 
 nent jurists, such a provision for compensation is an indispensable 
 attendant on the due and constitutional exercise of the power of 
 depriving an individual of his property. And he said that " a 
 right to a stream of water is as sacred as right to the soil over 
 which it flows. It is a part of the freehold of which no man 
 can be disseized but by lawful judgment of his peers, or by due 
 process of law." (2 John., ch. 161.) 
 
 If water cannot be taken by the state for public purposes from 
 a stream running through the land of a private party with- 
 out just compensation to him, surely the water collected in 
 reservoirs on the lands of the plaintiff as it descends from the 
 heavens cannot be taken for public uses without like compensa- 
 tion. The water thus collected, as already stated, is the property 
 of the plaintiff, to which its title is as perfect as to the reservoirs and 
 aqueducts which it has constructed. It is taken for public 
 use; the use of the city and county, and of their inhabitants. 
 If the plaintiff were dealing with the city or city and county 
 alone, and were compelled to deliver its water at a prescribed 
 price per gallon or hogshead, or .according to some other 
 mode of measurement, there could be no question that it would 
 be a case of appropriating private property to public use. Is the 
 character of the transaction at all changed because the water is to 
 be delivered in part to the city and county, and in part to individual 
 consumers, and that the latter are required to make compen- 
 sation for what they take ? ' There is the same appropriation of 
 the property for public use in the one case as in the other, and it 
 is for the protection of the-pwner, that he may not be despoiled 
 of his property, that the constitutional guaranty was adopted. It 
 matters not to whom the law may compel the delivery of the 
 property, whether to one or many, if it is appropriated to public 
 use. "Water cannot be applied for the purposes required by the 
 city and county or by their inhabitants, without being consumed. 
 So that language employed with respect to regulating com- 
 pensation for the use of articles of a durable character, such 
 
19 
 
 i 
 
 as vehicles, cars, and roads, is inappropriate and misleading 
 when applied to water used for domestic purposes, or for sprink- 
 ling streets, extinguishing fires, flushing sewers, and irrigating parks. 
 Regulating the price to be paid for the use of water in such 
 cases is determining the compensation to be made to the owner 
 for transferring his title. The body of the water passes by its 
 use from his ownership. In all such cases the great principle ap- 
 plies as when property of a durable character is appropriated for 
 public use, that compensation, to be ascertained by an impartial 
 tribunal, must be made to the owner. 
 
 AsinPumpellyvs. Green, (13 Wall. ,177,) in considering whether, 
 in the execution of a public improvement authorized by law, a 
 flooding by water of land so as to deprive its owner of its use was 
 a taking of it in the sense of the Constitution so as to entitle him 
 to compensation, this court said: " It would be a very curious and 
 unsatisfactory result if in construing a provision of constitutional 
 law, always understood to have been adopted for protection and 
 security to the rights of the individual as against the government, 
 and which has received the commendation of jurists, statesmen, 
 and commentators as placing the just principles of the common 
 law on that subject beyond the power of ordinary legislation to 
 change or control them, it shall be held that if the government 
 refrains from the absolute conversion of real property to the uses 
 of the public, it can destroy its value entirety can inflict irreparable 
 and permanent injury to any extent can in effect subject it to total 
 destruction without making any compensation, because in the nar- 
 rowest sense of that word it is not taking it for the public use." 
 
 So I say it would be a very curious and unsatisfactory result if 
 in construing this constitutional provision, designed to protect the 
 property of the citizen against, spoliation by the government, and 
 to insure to him when taken for public uses just compensation, to 
 be ascertained by an impartial tribunal, it should be held that 
 when the owner is required to surrender the property taken in 
 parcels to different parties and receive compensation as delivered 
 to them, such compensation need be only such as the govern- 
 ment in its discretion may think proper to prescribe. As stated 
 in the Pumpelly case, it would make the constitutional provision an 
 authority for the invasion of private rights under the pretext of 
 the public good, which has no warrant in the laws and practice of 
 our ancestors. 
 
 All the authorities lay down the'doctrine that the property must 
 be appraised and compensation therefor fixed by an impartial 
 tribunal. It need not be a court of law; it may be composed 
 of commissioners appointed for the special purpose. What- 
 ever its form, its members must be free from interest' and should 
 be uninfluenced by prejudice, passion, or partizanship. And 
 its proceedings must be conducted in some fair and just mode, 
 either with or without a jury, as may be provided by law, 
 
20 
 
 with opportunity to the parties interested to present evidence as 
 to the value of the property, and to be heard thereon. The legis- 
 lature which determines the public purpose to be accomplished 
 and designates the property to be taken, cannot act as such tribu- 
 nal and fix the compensation, for that would be equivalent to al- 
 lowing the legislature to take the property on its own terms. 
 
 " The proceeding " to assess the compensation, says Cooley, " is 
 judicial in its character, and the party in interest is entitled to 
 have an impartial tribunal and the usual rights and privileges 
 which attend judicial investigations. It is not competent for the 
 state to fix the compensation through the legislature, for this would 
 make it the judge in its own cause." (Constitutional Limita- 
 tions, 704.) 
 
 For the same reason a corporation which has the power to con- 
 demn cannot fix the compensation. It would thus become a 
 purchaser at its own price, without regard to the estimate of others 
 as to the value of the property taken. Nor can the corporation 
 appoint the appraisers of the property, for they would, in that 
 case, be its agents, and as such disqualified. Relationship to the 
 parties whose property is to be appropriated, or interest in the 
 property, would disqualify the members of the tribunal as it would 
 jurors before a court. 
 
 An act of the legislature of Minnesota provided for taking cer- 
 tain property for public use, and appointed, without the consent 
 of the owners, three persons as commissioners to determine the 
 compensation to be made, without requiring any notice to the 
 owners of the proceeding or providing that they might at any 
 stage appear before the commissioners, and the supreme court of 
 the state held the law to be unconstitutional and void. The con- 
 stitution of the state contained no express provision as to the 
 mode by which the compensation to be paid should be determined, 
 and the court said: " While the legislature is the judge of the ne- 
 cessity or expediency of the exercise of the power of eminent do- 
 main, it is not the judge of the amount or justness of the compen- 
 sation to be made when the power is exercised;" and again: 
 " While, therefore, the constitution prescribes no proper mode in 
 which the compensation shall be determined, it would seem to 
 follow that as to the question of the amount of compensation, the 
 owner of the land taken for public use has a right to require that 
 an impartial tribunal be provided for its determination, and that 
 the government is bound in- .such cases to provide such tribunal, 
 before which both parties may meet and discuss their claims on 
 equal terms. And such seems to be the tenor of the authori- 
 ties upon this question. The act in question does not provide 
 such a tribunal. The commissioners to determine the compensa- 
 tion are private citizens, appointed directly by the legislature, 
 without the consent of the persons whose land is taken by the 
 public. No notice of the proceedings before the commissioners 
 
21 
 
 is given; the land owner is not authorized to appear at any stage 
 of the proceedings to object to the commissioners; to introduce 
 any proof or allegation before them. The proceedings are en- 
 tirely ex-parte. It certainly cannot be said that this is a just or 
 equitable mode to determine the compensation due to a citizen 
 for property taken for public use." (Langford vs. County of Ram- 
 sey, 16 Minn., 333.) 
 
 Objections are often made in the courts of law to the reports of 
 commissioners of appraisement, upon application to set them aside, 
 on the ground that the members have been improperly influenced 
 by others, and have allowed their judgment to be warped by solici- 
 tations, or by prejudice or partizanship, and when such objections 
 have been sustained by proper proofs the reports have been ad- 
 judged invalid. 
 
 If, in the light of these decisions, we turn to the board of super- 
 visors of San Francisco, it would seem impossible for us to hesitate 
 in declaring that in no respect can it be deemed an impartial 
 tribunal, however honest its members may personally be, to 
 determine the compensation which the owners of the water 
 delivered to the city and its inhabitants should receive. In- 
 terested as its members are, as consumers of the water, as agents 
 of the city, also a large consumer, and elected by constituents, 
 every one of whom is a daily consumer, it is wanting in every 
 essential particular to render it, in a legal sense, an impartial 
 tribunal. If, therefore, as I have attempted to show, and I think 
 have shown, the water of the plaintitf is its property, and- when 
 it is taken under the law of the state for public use, the plaintiff 
 is entitled to just compensation, that board is incompetent to act 
 in determining what that compensation shall be. It is difficult to 
 conceive of any tribunal more liable to be controlled by exter- 
 nal influences against the interests of the company. 
 
 Upon the action of the supervisors with reference to all other 
 matters, it has been found necessary, for the protection of the pub- 
 lic, to impose numerous restrictions. Without them, improvi- 
 dent contracts on behalf of the city and county would be 
 made, extravagant schemes of supposed improvement under- 
 taken, and its treasury be depleted. And yet this body, which, 
 without any imputation upon the personal integrity of its mem- 
 bers, but out of regard to the common weakness of humanity, 
 the community will not trust in other matters without guards 
 against its improvidence, and which is exposed to every influence 
 which can warp its judgment and pervert its action, is allowed 
 almost unlimited control over the property of the plaintiff and 
 the compensation to be paid for it, and respecting which the 
 plaintiff is not permitted to be heard except as a matter of favor. 
 
 So in every aspect in which this case can be exhibited whether 
 we regard the contract contained in the act of 1858, or treat the 
 compulsory delivery of the property as a taking of it for public 
 
22 
 
 use there is no feature in the acts authorized by the new con- 
 stitution with respect to its property which does not violate the 
 constitutional rights of the plaintiff. In the enforced sale of its 
 property at prices to be fixed by the agents of the consumers, the 
 line is passed which separates regulation from spoliation. 
 
 For the reasons thus stated I cannot assent to the judgment of 
 the court. 
 
VI 
 
 .* * 
 
 THE PACIFIC RAILROADS 
 
 AND THE 
 
 GOVERNMENT. 
 
 )0 U 
 THURMAN (SINKING FUND) ACT. 
 
 Opinions of the U, 8. Supreme Court 
 
 AND 
 
 DISSENTING OPINIONS, 
 
 WITH 
 
 Material Portions ol the Acts. 
 
 NEW YORK: 
 
 I'OST STKAM I'IIKSSKS. \M)8 BKOAD\VAY, COR. FULTON S'i'. 
 
 1879. 
 
 
OPItflOXS IN THE PACIFIC RAILROAD 
 CASES THLRMAN ACT. 
 
 <0urt of the United 
 
 Nos. 972 and 1,O83. 
 
 OCTOBEE TERM, 1878 
 
 THE CENTRAL PACIFIC RAILROAD Appeal from the Circuit 
 
 COMPANY, LELAND STANFORD, ET 
 
 AL., 
 972 
 
 Appellants, 
 against 
 ALBERT GALLATIN, 
 
 And 
 
 THE UNION PACIFIC RAILROAD COM- 
 PANY, 
 
 Appellant, . 
 
 1,083 against 
 
 THE UNITED STATES* 
 
 Court of the United States 
 for the District of Cali- 
 fornia. 
 
 Appeal from the Court of 
 Claims. 
 
 No. 1,O83. 
 
 The Case of the Union Pacific Railroad Company. 
 
 APPEAL FROM A JUDGMENT OF THE COURT OF CLAIMS IN 
 FAVOR OF THE UNITED STATES. 
 
 The facts in the case are briefly as follows : 
 
 1. The Union Pacific Railroad Company, during the month 
 of July, 1878, transported troops for the United States, the 
 value of which service was the sum of $10,451.73. 
 
 2. After the accounts had been regularly passed upon and 
 allowed by the proper accounting officers, finding the above 
 amount due, and before the money had been placed in a sink- 
 
ing fund, as hereinafter stated, the claimant demanded the 
 payment by the United States of the one-half of the said 
 amount, viz., $5,225.86, and protested against placing the same 
 or any part thereof in any sinking fund. 
 
 3. The Secretary of the Treasury refused to pay said com- 
 pany said sum of $5,225.86, and against said protest placed 
 the same in a sinking fund, pursuant to the act approved May 
 7, 1878, commonly known as the Thurman Bill, or Sinking 
 Fund Act. 
 
 No. 972. 
 
 THE CASE or THE CENTRAL PACIFIC KAILROAD COMPANY, 
 above, was an appeal from a judgment of the Circuit Court of 
 the United States for the District of California, in a suit in 
 equity brought by one of its stockholders against the company 
 and its board of directors to compel a compliance with the 
 provisions of the Act of Congress approved May 7, 1878, com- 
 monly called the " Thurman Act," and for an injunction. The 
 defendants demurred to the bill filed upon the ground that the 
 said act was unconstitutional and void. The court below over- 
 ruled the demurrer, and the defendants declining to answer, a 
 final decree was entered against them according to the prayer 
 of the bill, and the defendants below appealed to the Supreme 
 Court. 
 
 Shall the United States violate its contract* 
 wit Ii the Pacific Railroad Companies ? 
 
 DISSENTING OPINION OF ME. JUSTICE STRONG. 
 
 In my opinion the act of Congress of May 7th, 1878, is 
 plainly transgressive of legislative power. As was said by Mr. 
 Hamilton in his celebrated, communication to the Senate, of 
 January 20, 1795, " when a government enters into a contract 
 with an individual, it deposes, as to the matter of the contract, 
 its constitutional authority, and exchanges the character of 
 legislator for that of a moral agent, with the same rights and 
 obligations as an individual. Its promises may be justly con- 
 
3 
 
 sidered as excepted out of its power to legislate, unless in aid 
 of them. It is in theory impossible to reconcile the idea of a 
 promise which obliges with a power to make a law which can 
 vary the effect of it " (3 Hamilton's Works, 518-19.) Opin- 
 ions similar to this have often found expression in judicial de- 
 cisions, even in those of this court. If this be sound doctrine 
 it is as much beyond the power of a legislature, under any pre- 
 tence, to alter a contract into which the government has en- 
 tered with a private individual as it is for any other party to 
 a contract to change its terms without the consent of the person 
 contracting with him. As to its contract, the government in 
 all its departments has laid aside its sovereignty, and it stands 
 on the same footing with private contractors. 
 
 The contracts of the government with the Union Pacific 
 Railroad Company, and with the Central Pacific, which the 
 act of Congress of 1878 has in view, were not made by the act 
 of 1862, the act chartering the former company, nor by the 
 amending act of 1864. They were made after those acts had 
 been accepted by the companies, and after their chartered rights 
 had been completely acquired. There was no agreement of 
 the companies to repay the loan of government bonds made to 
 them, until the bonds were issued and delivered. The compa- 
 nies were under no obligation to accept the loan and assume 
 the liabilitj 7 resulting from its acceptance. The contracts, 
 therefore, are no part of the charter of the Union Pacific Com- 
 pany, and no part of the acts of 1862 or 1864. They are sub- 
 sequent to those acts and independent of them. It is true 
 Congress authorized the loan. It made the companies offers 
 to lend upon certain conditions, and when those offers and 
 conditions were subsequently accepted, the contracts of loan 
 w r ere made. Not until then. Before that time there was 
 nothing but an unaccepted offer. 
 
 What, then, was the contract when it was made ? The gov- 
 ernment lent its bonds, and, in consideration of the loan, eac,h 
 company assumed five obligations : 1st, to pay the bonds at 
 their maturity, that is at the expiration of thirty years ; 2d, to 
 keep the railroad and telegraph line in repair and use; 3d, to 
 furnish transmission of despatches and transportation for the 
 government at reasonable rates, allowing it, a preference for 
 
such purposes ; 4th, to apply to the payment of the bonds and 
 interest half the compensation due to it from the government 
 for services rendered, until the whole amount of the loan is 
 fully paid ; and 5th, after the completion of the railrop-d, to 
 apply to the payment of the bonds at least five per cent, annu- 
 ally of its net earnings. The lender required and the borrower 
 undertook nothing more. 
 
 It is manifest that by this contract the government acquired 
 a vested right to payment at the time and in the mode speci- 
 fied, as well as to preference of transportation and transmis- 
 sion of despatches, and the company acquired a vested right 
 to retain the consideration given for its assumption that is, a 
 vested right to withhold payment until by the terms of the 
 contract payment became due. The contract implied an agree- 
 ment not to call for payment or additional security before that 
 time. I cannot conceive of any rational doubt of this. There 
 is no technicality about vested rights. Most of them grow out 
 of contracts, and, no matter how they arise, they are all equally 
 sacred, equally beyond the reach of legislative interference. A 
 vested right of action is property in the same sense in which 
 rights to tangible things are, and is equally protected. Whether 
 it springs from contract or from other rules of the common law 
 it is not competent for the legislature to take it away. If we 
 look at what must have been the understanding of all parties 
 to these contracts of loan, the rights created and vested under 
 them cannot be in doubt. The government sought to induce 
 private adventurers to construct a railroad and telegraph line 
 to the Pacific ocean a work which necessarily required years 
 and immense expenditures for its accomplishment. A loan, 
 payable on call or within a short time, would have been no in- 
 ducement. Had it been dreamed that a call could have been 
 made at any time thereafter designated by Congress, it is in- 
 conceivable that the loan proffered would have been accepted. 
 It would have furnished na-reliable basis for an attempt to 
 build the road. The parties could not so have understood the 
 bargain. The bonds were required to be paid by the compa- 
 nies only at their maturity, except so far as half-payment for 
 governmental service, and five per cent, of the net earnings, 
 after the completion of the road, might pay. The contract, 
 
therefore, means exactly what it would have meant had it con- 
 tained the express stipulation, "the United States shall not 
 require payment of the amount of the bonds, or any part 
 thereof (except half-compensation for services and five per 
 cent, of net earnings), until the expiration of thirty years from 
 their issue to the company, or date, nor shall additional secur- 
 ity be required, beyond the lien reserved." Such was the con- 
 tract. It was not one of the franchises granted in the charter 
 of the Union Pacific or the Central, but it was a business tran- 
 saction, differing in nothing, except parties, from what it would 
 have been if it had been made between two private individuals. 
 It is true Congress authorized the loan on the terms upon 
 which it was made, but, as I have said, the contract was not 
 made by the act of Congress, or with Congress. It was a sub- 
 sequent transaction, and the United States became a party to 
 it, not in its sovereign character, but as a civil corporation, as 
 said by Mr. Hamilton, with the same rights and obligations as 
 a private person, and no more. 
 
 Now, what has been attempted by the act of May 7th, 1878 ? 
 That act was passed with sole references to this contract, and 
 all its provisions have in view the imposition of additional 
 obligations upon the railroad company. It does not purport 
 to be a repeal of the charter. Its leading purpose is to take 
 control of the property of the debtor and sequester it for the 
 security of a debt, which, by the terms of the contract, is not 
 due and payable for years to come. I shall not go over all its 
 provisions. It will be sufficient to notice some of the more 
 prominent ones, which, if they are ruled to be operative, greatly 
 change the contract which the parties made when the bonds 
 were delivered and accepted, when the contract was closed, 
 and which impose new and oppressive obligations upon the 
 debtor. 
 
 By the contract only one-half the compensation for services 
 rendered to the government was required to be applied to the 
 payment of the bonds, but by this act the whole amount of 
 the compensation which may from time to time be due for 
 services rendered to the government is directed to be retained 
 by the United States, and at the same time the obligation to 
 render those services is continued. By the third section of 
 
6 
 
 the act a sinking fund is established in the Treasury of the 
 United States ; that is, in the treasury of the creditor ; and 
 the fourth section enacts that there shall be carried into that 
 fund, on the first day of February in each year, the one-half of 
 the compensation above named not applied in liquidation of 
 interest. By the contract the debtor was bound to pa}' only 
 five per cent, of its net earnings, after the completion of the 
 road, annually to the creditor, but this act requires the debtor 
 to pay into the creditor's treasury, to the credit of the sinking 
 fund, twenty-five per cent, of its whole net earnings, on the 1st 
 of February in each year. The act further directs that the 
 sinking fund thus created shall, with its accumulations, be in- 
 vested in bonds of the United States, and at the maturity of 
 the bonds loaned to the debtor be applied to the payment and 
 satisfaction thereof, and of all interest paid by the United 
 States. There are other provisions of this act intended to 
 enforce compliance with these newly-added obligations imposed 
 upon the debtor, as also provisions that the sinking fund shall 
 be held for the benefit, protection and security of other lien- 
 creditors of the debtor. But I deem it unnecessary to mention 
 them in detail. Those which I have mentioned are enough for 
 the present case. No one can deny that they materially 
 change the contract of loan and borrowing previously existing 
 between the government and the railroad companies, and 
 change it at the will of the creditor alone. Nor can it be denied 
 that they impose upon the debtors new and onerous burdens 
 that they never agreed to assume. Practically, they enforce 
 payment of the debt before, by the terms of the contract, it is- 
 due. The act seizes the half-compensation, which the govern- 
 ment agreed should not be retained, and covers it into the 
 Treasury, appropriating it to the payment of the debt. For 
 nothing else can it be used. The act also requires payment 
 into the Treasury of twenty-five per cent, of the net earnings- 
 of the company, instead of, five per cent, only, as stipulated 
 when the contract was made. It is true it does not make 
 immediate application of the sums thus withheld and 
 demanded to the extinguishment of the debt. It declares that 
 they shall be applied to the payment of the debt and interest 
 " at the maturity of the bonds." But this is a distinction with- 
 
out a difference, obviously made to evade what it was known 
 could not lawfully be done. An immediate application might 
 as well have been directed. It would probably be better for 
 the debtor if the application were immediately made. The 
 money is taken from the debtor, withdrawn entirely from the 
 debtor's control and use, and put into the treasury of the 
 creditor, and there left to the mere agreement of the creditor 
 to apply it to payment. I apprehend no plain man of common 
 sense will hesitate to conclude that this is exacting payment 
 before the debt is due. If A borrows from B one thousand 
 dollars, and gives his note therefor, payable at the expiration 
 of five years, and at the end of one year the lender demands 
 that there be placed in his hands by the debtor a sum of money 
 to meet the note when it^shall fall due, it will hardly be con- 
 tended that would not be requiring payment before the debtor 
 was bound to pay. And if such a demand could be enforced 
 it would be at the expense of the contract. What more is the 
 present case? And were it conceded the act of 1878 does not 
 attempt to enforce the payment before the maturity of the 
 debt the concession would be of little worth, for it will not be 
 questioned that it attempts to enforce giving additional security 
 for payment beyond that stipulated for in the contract. 
 That is no less a material alteration of the contract, a serious 
 addition to it. The plain truth is the assertion of such a 
 power is claiming the right to disregard the contract entirely, 
 and substitute for it a different one, without consent of the 
 debtor. If the United States can exact now one-quarter of the 
 net earnings of each of these companies, and place it in their 
 Treasury, they can, by the same power, and with the same 
 reason, exact the whole of the earnings, or any other property 
 equal to the amount of the debt. Was any such thing con- 
 templated by the parties when the contract was made? 
 
 Now, where is the power of Congress to add new terms to 
 any contract made with the United States, or made between 
 any two private individuals? Where is the power to annul 
 vested rights? It is certainly not to be found in the constitu- 
 tion. True, the provision that no State shall pass any law 
 impairing the obligation of contracts applies only to State 
 legislation. For such legislation the prohibition was necessary, 
 
8 
 
 for Stale Legislatures have all legislative power which is not 
 expressly denied to them. But no necessity existed for impos- 
 ing such a limitation on the power of Congress. As Mr. Ham- 
 ilton said in the eighty-fourth number of the Federalist, " Why 
 declare that things shall not be done which there is no power 
 to do ?" Congress has no power except such as has been ex- 
 pressly granted to it, or such as is necessary or proper for 
 carrying into execution the powers speciBed, and those vested 
 by the Constitution in the government, jr some department or 
 officer thereof. I search in vain for any express or implied 
 grant of power to add new terms to any existing contracts 
 made by or with the government, or any grant of power to 
 destroy vested rights. No power has been given to Congress 
 to lessen the obligations of a contract between private parties 
 by direct legislation, except by the enactment of uniform laws 
 on the subject of bankruptcy. Even a bankrupt law cannot be 
 enacted applicable only to single corporations or single debtors. 
 To be constitutional it must be uniform throughout the United 
 States. I admit that in the exercise of some of the powers 
 granted Congress may enact laws that indirectly affect existing 
 contracts, and lessen their obligation, but I deny that it can by 
 any direct action, otherwise than by a bankrupt law, even 
 relieve a debtor to a private party from any duty he has 
 assumed by his contract. Much less can it change the stipu- 
 lations of the contract and impose additional liabilities upon a 
 contractor with the government. Such an exercise of power 
 would be making a contract for parties to which they never 
 assented. In all the history of Congressional legislation before 
 the act of 1878 such a power^was never attempted to be exer 
 cised. 
 
 And not only is such legislative authority not conferred 
 upon Congress by the constitution, but it is, in effect, express- 
 ly denied. The fifth amendment contains restrictions taken, 
 in substance, from Magna Charta. Among them are the pro- 
 visions that no person shall be deprived of life, liberty, or 
 property, without due process of law, nor shall private prop- 
 erty be taken for public use without just compensation. These 
 are restrictions upon legislative as well as executive power. 
 What is due process of law is well understood. It is law in 
 
regular course of administration through courts of justice. 
 (Coke, 2 Inst, '272 ; Murray's lessee vs. The Hobokeu Land 
 Company, 18 How., 272.) "The terms 'the law of the land,' 
 said Chief Justice Ruffin, (Hoke vs. Harderson, 4 Dev., N. C., 
 lo), do not mean merely an act of the General Assembly. If they 
 did, every restriction upon legislative authority would be at 
 once abrogated, and private property would be at the mercy of 
 the Legislature." Yet the act of Congress of 1878 does 
 attempt by its own force, and without any judicial action, not 
 only to change a contract and increase its obligations, but also 
 to deprive the railroad companies of their property. What is 
 property? What is the common understanding of the term? 
 It is, in reference to its subject, whatever a person can possess 
 and enjoy by right, and the person who has that right has the 
 property. The subject may be corporeal or inc Trporeal. A 
 right in action is as completely property as is a title to land. 
 A very large portion of the property of the country consists in 
 rights attendant upon contract. The right of a promisee to de- 
 mand payment when the note falls due is a right of property, 
 and equally so is the right of the promisor to hold, as against 
 bis promisee, the consideration for the promise until the time 
 stipulated in the note for payment. The promisee has no right 
 to enforce "payment, or to enforce giving security for it, if none 
 was promised in the contract. Such a right is no portion of 
 his property, and it can be enforced only at the expense of a 
 clear right of the promisor. On the other hand, the promisor 
 has a right to exemption from liability to give such security. 
 It is incident to his contract. Indeed, it may be said that 
 whatever rights are created by contract, or held under it, if 
 they relate to property, are themselves, in a very just sense, 
 property, and as such are protected by the fifth amendment to 
 the constitution. 
 
 I notice another considerat on. which, to my mind, is not 
 without weight. It may, I think, well be doubted whether the 
 act of 1878 is even an attempted exercise of legislative power. 
 A statute undertaking to take the property of A and 
 transfer it to B is not legislation. It would not be a law. 
 It would be a decree or sentence, the riht to declare 
 which, if it exists at all, is in the judicial depart- 
 
10 
 
 nient of the government. The act of Congress is little, 
 ii any, more. It does not purport to be a general law. It 
 does not apply to all corporations^ to all debtors of the gov- 
 ernment. It singles out two corporations, debtors of the 
 government, by name, and prescribes for them as debtors new 
 duties to their creditor. It thus attempts to perform the func- 
 tions of a court. This, I cannot but think" is outside of legis- 
 lative action and power. 
 
 I turn now to the arguments by which the constitutionality 
 of the act of Congress has been attempted to be supported. 
 It is said that though Congress cannot directly abrogate con- 
 tracts or impair their obligation, it may indirectly, by the ex- 
 ercise of other powers granted to it. This I have conceded, 
 but I deny that an acknowledged power can be exerted solely 
 for the purpose of effecting indirectly an unconstitutional end 
 which the Legislature cannot directly attempt to reach. If the 
 purpose were declared in the act, I think no court would hesi- 
 tate to pronounce the act void. In the case to which I have re- 
 ferred, 4Dev., 27, Ch. Jus. Kuffin, when considering at length 
 an argument that a Legislature could purposely do indirectly 
 what it could not do directly, used this strong language : " The 
 argument is unsound in this : that it supposes (what cannot be 
 admitted as supposition) the Legislature will, designedly and 
 willfully, violate the Constitution, in utter disregard of their 
 oaths and duty. To do indirectly in the abused exercise of an 
 acknowledged power, not given for, but perverted for that pur- 
 pose, that which is expressly forbidden to be done directly, is 
 a jLjross and wicked infraction of the constitution." 
 
 It is unnecessary, however, to enlarge upon this, for the ef- 
 fect wrought upon the contracts of these two companies is a 
 direct effect a direct alteration ot the obligation assumed by 
 the debtors, and not an incidental result of legislation upon 
 some other subject over which Congress has a right to legislate. 
 It is too plain to admit of .any doubt that the sole object of 
 the act of 1878 was to enforce giving new and additional se- 
 curity for the payment of the subsidy bonds at their maturity. 
 All its provisions aim directly at that, and the new terms there- 
 by added to the contract have that end solely in view. 
 
 In further attempted support of the validity of the act, it 
 
11 
 
 has been denied that it does change the contract, because it 
 does not require the application of the additional payments to 
 the satisfaction of the debt before its maturity. I have, per- 
 haps, said enough upon this subject. The argument can hard- 
 ly be seriously made. The act does compel the debtors to 
 surrender possession of their property to the creditor before 
 the time when, by the terms of the contract, they were under 
 obligation to part with it. The debtors are no longer per- 
 mitted to hold and use one-half the compensation due present- 
 ly from the government for services rendered, and are no 
 longer at liberty to use all their net income or earnings, except 
 five per cent., at their discretion. One-quarter of their net 
 earnings they are compelled to surrender to the. creditor. 
 Thus the creditor becomes the custodian of the debtors' prop- 
 erty, and acquires a right 'to hold and manage it as if it were 
 his own. It is absurd to say this is not practically a radical 
 change in the relations between the parties established by the 
 contract. And it is equally impossible to maintain that it is 
 not depriving the debtors of their property without due pro- 
 cess of law. 
 
 I turn now to what has been most relied upon in support of 
 the validity of the act. 1 refer to the clauses in the acts of 
 1862 and 1864, reserving the right to repeal, amend, or alter. 
 There are two such one in the act of 1862, and one in that of 
 1864. That in the latter act is the broadest, and it is as fol- 
 lows : "Congress may at any time alter, amend, or repeal this 
 act." The power thus reserved is one over the act itself ; not 
 over anything that may have lawfully been done under the act, 
 before its repeal or alteration. It is only by great confusion 
 of things essentially distinct that this power can be construed 
 as applicable to a contract made after the corporation came 
 into existence. Besides, the act of 1878 does not attempt to 
 repeal, or alter, or amend the acts of 1862 and 1864. It 
 changes no franchise granted by those acts, nor does it inter- 
 fere with its exercise. It interferes only with the fruits of the 
 franchise. The right to possess and enjoy the income of the 
 company is not a franchise. It is an incident of the owner- 
 ship of the company's property, though the property may be 
 accumulated by the use of the franchise. Concede that Con- 
 
12 
 
 gress has power to regulate the tolls on the railroad, or in some 
 other mode to restrict the use of the franchise, and thus lessen 
 the income, yet the income, whether large or small when made, 
 is the company's property, and, like other property, protected 
 against being taken without due process of law. Or suppose 
 the acts of 1862 and 1864 were repealed, and thus all the fran- 
 chises granted by them were taken away, the property of the 
 company would remain, and the income thereof, though great- 
 ly decreased, would be the property of the stockholders. No- 
 body denies that. Is the lesser greater than the whole ? I 
 repeat, therefore, the act of 1878 is no exercise of the reserve 
 power to alter, amend, or repeal the acts of 1862 and 1864. It 
 is no attempt to make any such repeal or amendment. It is 
 at most an attempt to seize the fruits of the franchise after 
 they shall have become the vested property of the corporations. 
 It is an attempt to sequester the income of the property owned 
 by them. As wel might the government attempt to seize and 
 put into its treasury the rents, issues, and profits of the lands 
 granted to them by the third and fourth sections of the act of 
 1862, and call that an amendment of the act. There is no distinc- 
 tion to be made between the profits of the road and telegraph 
 line and the rents of the lands. None has been attempted. 
 
 But if the act of 1878 could be considered an alteration or 
 amendment of the acts of 1862 and 1864, the question would 
 still remain, what was the extent of the power reserved by 
 those acts. I mean the power to alter, amend, or repeal them. 
 All the cases agree that such a reserved power is not with- 
 out limits. I think its limits may be stated generally thus : 
 It must be exercised, when exerted at all, so as to do no injus- 
 tice to those to whom the franchise has been granted. Cer- 
 tainly the reservation cannot mean a right to take away the 
 franchise, in whole or in part, and yet hold the grantee to the 
 performance of the duties assumed the consideration given 
 for the grant. Nor can it.mean to continue in the Legislature 
 power which the Legislature never possessed, and which it is 
 constitutionally incapable of exercising. A partial definition 
 of the limits of the reserved power may be found in Common- 
 wealth v*s. Essex County, 13 Gray, 258, where Chief Justice 
 Shaw (speaking of the reserved power to alter, amend, or re- 
 
13 
 
 peal a charter;, said : " It seems to us this power must have 
 some limit, though it is difficult to define it. Suppose author- 
 ity has been given by law to a railroad corporation to pur- 
 chase a lot of land and hold it for purposes connected with its 
 business, and they purchase such lot from a third person, 
 could the Legislature prohibit the company from holding it ? 
 If so, in whom would it vest? Or could the Legislature di- 
 rect it to revert to the grantor or escheat to the public ? Or 
 how otherwise ? Suppose a manufacturing company, incor- 
 porated, is authorized to construct a dam and fiow a tract of 
 meadow, and the owners claim gross damages, which are as- 
 sessed and paid, can the Legislature afterwards alter the act of 
 incorporation so as to give to such meadow owners future 
 annual damages ? Perhaps, from these extreme cases, for ex- 
 treme cases are allowable to test a legal principle, the rule to 
 be extracted is this : that where, under a power in a charter, 
 rights have been acquired and become vested, no amendment 
 or alteration of the charter can take away the property or. 
 rights which have become vested under a legitimate exercise 
 of the powers granted." This rule has been recognized ever 
 since. (Yide Sage vs. Dillard. 15 B. Munroe, 357.) It has 
 been adopted by this court. In Miller vs. The State, 15 Wal- 
 lace, 478, it was said by Mr. Justice Clifford : " Power to legis- 
 late founded upon such a reservation in a charter of a private 
 corporation is certainly not without limits, and it may well be 
 admitted that it cannot be exercised to take away or destroy 
 rights acquired by such a charter, and which, by a legitimate 
 use of the powers granted, have become vested in the corpora- 
 tion." To the same effect is Holyoke Company vs. Lyman, 15 
 Wall., 500. If this limitation be admitted it is impossible to 
 see how a reserved power to alter, amend, or repeal an act 
 granting a private charter can include a right to change the 
 stipulations of a contract made under that charter, or to se- 
 quester for any purpose the property of the company acquired 
 while the charter remains unrepealed and unaltered. If the 
 acts of 1862 and 1864 were repealed, would not the contract of 
 loan remain unaffected thereby? Can a Legislature that offers 
 a contract on certain terms change those terms after they have 
 been accepted and after the contract has been perfected ? Yet 
 
14 
 
 that is what the act of 1878 attempts to do. A principal who 
 has authorized his agent to make a contract for him may re- 
 voke or restrict the agency before any contract is made, but he 
 is bound by a contract made during the continuance of the 
 agent's powers, if those powers were not transgressed in mak- 
 ing it. He cannot afterwards repudiate its. terms or add to 
 them. I see no essential difference between such a case and 
 the present. I cannot confound an alteration of the acts of 
 1862 and 1864 with an alteration of a subsequent commercial 
 contract authorized by those acts, and made between the Uni- 
 ted States and companies chartered by them. My convic- 
 tion, therefore, is, that the act of 1878 cannot be defended as 
 a legitimate exercise of the powers reserved to Congress. 
 
 I need not say it cannot rest upon what is generally denom- 
 inated the visitatorial power of the Government over its own 
 corporations, though it is upon this power the opinion of the 
 majority of the court largely relies. That power is applicable 
 only to eleemosynary corporations, such as colleges, schools, 
 and hospitals, and the visitation is always through the medium 
 of courts of justice. It is judicial and not legislative. (2 
 Kent's Comm., Lecture 23, Section 4.) To claim, therefore, 
 that, by virtue of that power, a private business corporation 
 can be compelled by legislative action to establish a sinking 
 fund for the payment of its debts, and deposit it in the treas- 
 ury of its creditor, is totally inadmissible. 
 
 There are, undoubtedly, many cases to be found in which it 
 has been decided that, by virtue of such a reservation as that 
 contained in the acts of 186 '-4 and 1864, a Legislature may 
 make new regulations, to some extent, of the action of corpo- 
 rations created by it such as prescribing anew measure of tolls, 
 increasing the capital of insurance companies, repealing, an ex- 
 emption from taxation, and the like. So, without the reserva- 
 tions, some new regulations may be prescribed in the exercise 
 of the police power. They are all regulations of the franchise, 
 or of its use not invasions of rights or property acquired 
 under the franchise subsequent to its grant. And not one of 
 them under the practice of amendment or rightful regulation 
 has undertaken to change or vary any contract the corporation 
 had made, or to control possession of property acquired. The 
 
15 
 
 act of 1878 is, I believe, the first assertion of any such force in 
 the reservation. It is a very grave and dangerous assertion. 
 It is especially dangerous in these days of attempted repudia- 
 tion, when the good faith of the government is above all price. 
 If it can be maintained, the government is no longer bound 
 by any commercial contract into which it may enter with these 
 corporations, though it holds them bound. I cannot assent to 
 any such doctrine, and upon the whole, in my opinion, the act 
 of 1878 is not only unauthorized by any power existing in 
 Congress, but it is an infraction of the prohibition I have 
 pointed out, contained in the fifth amendment of the constitu- 
 tion. 
 
 Most of what I have said is applicable to each of the cases 
 that of the Union Pacific and that of the Central. There 
 are some other considerations peculiar in the case of the Cen- 
 tral Pacific, which is a corporation of the State of California, 
 and was such in 1802. These I leave for consideration by my 
 brethren who unite with me in dissent. 
 
 DISSENTING OPINION OF MR. JUSTICE BRADLEY. 
 
 I am unable to concur in the judgment of the court in these 
 cases, and will very briefly state the grounds of my dissent. 
 
 I think that Congress had no power to pass the act of May 
 7th, 1878, either as it regards the Union Pacific or the Central 
 Pacific Railroad Company. The power of Congress, even over 
 those subjects upon which it has the right to legislate, is not 
 despotic, but is subject to certain constitutional limitations. 
 One of these is that no person shall be deprived of life, liberty, 
 or property without due process of law ; another is that private 
 property shall no*t be taken for public use without just com- 
 pensation ; and a third is that the judicial power of the United 
 States is vested in the Supreme and inferior courts, and not 
 in Congress. It seems to me that the law in question is viola- 
 tive of all these restrictions, of their spirit at least, if not of 
 
16 
 
 their letter ; and a law which violates the spirit of the consti- 
 tution is as much unconstitutional as one that violates its letter. 
 For example, although the constitution declares only that pri- 
 vate property shall not be taken for public use without just com- 
 pensation, and does not expressly declare that it shall not be 
 taken for private use without compensation ; or, in other words 
 does not declare that the property of one person shall not be 
 taken from him and given to another without compensation ; 
 yet no one can reasonably doubt that a law which should do 
 this would be unconstitutional, because the prohibition to do 
 it is within the spirit of the prohibition that is given ; it being 
 the greater enormity of the two. 
 
 The contract between the Union and Central Pacific Kailroad 
 Companies and the government was an executed contract and 
 a definite one. It was in effect this : that the government 
 should loan the companies certain moneys, and that the com- 
 panies should have a certain period of time to repay the amount, 
 the loan resting on the security of the companies' works. Con- 
 gress, by the law in question, without any change of circum- 
 stances, and against the protest of the companies, declares that 
 the money shall be paid at an earlier day, and that the contract 
 shall be changed protanto. This is the substance and effect of 
 the law. Calling the money paid a sinking fund makes no sub- 
 stantial difference. The pretence or excuse for the law is that 
 the stipulated security is not good. Congress takes up the 
 question, ex parte, discusses and decides it, passes judgment, 
 and proposes to issue execution, and to subject the companies 
 to heavy penalties if they do not comply. That is the plain 
 English of the law. In view of the limitations referred to, has. 
 Congress the power to do this? In my judgment it has not. 
 The law virtually deprives the companies of their property 
 without due process of law ; takes it for public use without com- 
 pensation ; and operates as an exercise by Congress of the 
 judicial power of the government. 
 
 That it is a plain and flat violation of the contract there can 
 be no reasonable doubt. But it is said that Congress is not 
 subject to any inhibition against passing laws impairing the 
 validity of contracts. This is true ; and the reason why the in- 
 hibition to that effect was imposed upon the States and not 
 
17 
 
 upon Congress evidently was, that the power to pass bankrupt 
 laws should be exclusively vested in Congress, in order that the 
 bankruptcy system might be uniform throughout the United 
 States. When the States exercised the power they often did 
 it in such a manner as to favor their own citizens at the 
 expense of the citizens of other States and of foreign countries. 
 It was deemed expedient, therefore, to take the power from 
 the States so far as it might involve the impairing the validity 
 of contracts. State bankrupt laws, since the Constitution went 
 into effect, have only been sustained when operating prospect- 
 ively upon contracts, and then only in the absence of a national 
 law. The inhibition referred to undoubtedly had its origin in 
 these considerations. It fully explains the fact that no such 
 inhibition was laid upon the National Legislature ; and the ab- 
 sence of such an inhibition, therefore, furnishes no ground of 
 argument in favor of the proposition that Congress may pass 
 arbitrary and despotic laws with regard to contracts any more 
 than with regard to any other subject-matter of legislation. 
 The limitations already quoted exist in their full force, and ap- 
 ply to that subject as well as to all others. They embody the 
 essential principles of Magna Charta, and are especially bind- 
 ing upon the legislative department of the government. Under 
 the English constitution, notwithstanding the theoretical omnip- 
 otence of Parliament, such a law as the one in question would 
 not be tolerated for a moment. The famous denunciation that 
 ' it would tut every Englishman to the bone," would be 
 promptly reiterated. 
 
 It will not do to say that the violation of the contract by the 
 law in question is not a taking of property. In the first place 
 it is literally a taking of property. It compels the companies 
 to pay over to the government, or its agents, money to which 
 the government is not entitled. That it will be entitled by the 
 contract to a like amount at some future time does not matter. 
 Time is a part of the contract. To coerce a delivery of the 
 money is to coerce without right a delivery of that which is 
 not the property of the government, but the property of the 
 companies. It is needless to refer to the importance to the 
 companies of the time which the contract givos. If it be al- 
 leged that the security of the government requires this to be 
 2 
 
18 
 
 done in consequence of waste or dissipation by the companies 
 of the mortgage security, that is a question to be decided by 
 judicial investigation with opportunity of defence. A prejudg- 
 meut of the question by the legislative depaitment is a usurpa- 
 tion of the judicial power. 
 
 But if it were not, as it is, an actual or physical taking of 
 property ; if it were merely the subversion of the contract and 
 the substitution of another contract in its place, it would be a 
 taking of property withiu the spirit of the constitutional pro- 
 visions. A contract is property. To destroy it wholly, or to 
 destroy it partially, is to take it ; and to do this by arbitrary 
 legislative action is to do it without due process of law. 
 
 The case bears no analogy to the laws which were passed in 
 time of war and public necessity, making treasury not>s of the 
 government a legal tender. The power to pass those laws was 
 found in other parts of the constitution ; in the power to bor- 
 row money on the credit of the United States, to regulate the 
 value of money, to raise and support armies, to suppress in- 
 surrections, and to pass all laws necessary and proper for car- 
 rying into execution, the general powers of the government. 
 My views on that subject were fuily expressed in the legal- 
 tender cases, reported in 11 Wallace, and I have yet seen no 
 reason to modify them. The legal-tender laws may have indi- 
 rectly affected contracts, but did not abrogate them. The 
 case before us is totally different. It is a direct abrogation of 
 a contract and that, too, of a contract of the government it- 
 self ; a repudiation of its own contract. 
 
 Nqr does the case in hand bear any analogy to what are 
 familiarly known as the "Granger Cases," reported in 94 U. 
 S., under the names of Munn vs. Illinois, <fec.. The inquiry 
 there was as to the extent of the police power in cases where 
 the public interest is affected ; and we held that when an em- 
 ployment or business becomes a matter of such public interest 
 and importance as to create a common charge or burden upon 
 the citizen ; in other words, when it becomes a practical mon- 
 opoly, to which the citizen is compelled to resort, and by 
 means of which a tribute can be exacted from the community, 
 it is subject to regulation by the legislative power. It is obvi- 
 ous_that the present case does not belong to that category. 
 
19 
 
 It is an individual case of private contract between the com- 
 panies and the government. It is a question of dollars and 
 cents, and terms and conditions, in a particular case. To call 
 the law an exercise of the police power would be a misuse of 
 terms. 
 
 Great stress, however, is laid upon the reservation in the 
 charter of the right to amend, alter or repeal the act. . 
 
 As a matter of fact the reservation referred to really has no 
 office in an act of Congress ; for Congress is not subject, as the 
 States are, to the inhibition against passing any law impairing 
 the obligation of contracts. It has become so much the cus- 
 tom to insert it in all charters at the present day that its 
 original intent and purpose are sometimes forgotten. Since, 
 however, it is contained in the charter of the Union Pacific 
 H lilroad Company, it is proper that its meaning and effect 
 should be adverted to. 
 
 It seems to me that this clause has been greatly misunder- 
 stood. It is a sort of proviso peculiar to American legislation, 
 growing out of the decision in the Dartmouth College Case. 
 Mr. Justice Story, in his opinion in that case, (4 Wheaton, 
 75,) says : " When a private eleemosynary corporation is thus 
 created by the charter of the crown, it is subject to no other 
 control on the part of the crown than what is expressly or ini- 
 pliedly reserved by the charter itself. Unless a power be 
 reserved for this purpose, the crown cannot, in virtue of its 
 prerogative, without the consent of the corporation, alter or 
 amend the charter, or divert the corporation of any of its 
 franchises." This hint, that such a reservation would author- 
 ize an alteration or amendment to be made in a charter, has 
 been freely availed of by Legislatures and constitutional con- 
 ventions in order to be freed from the constitutional re- 
 striction against impairing the validity of contracts, so far as 
 it applied to charters of incorporation. The application of 
 that restriction to such charters, by construing them to be, 
 contracts within the meaning of the constitution, was a sur- 
 prise to many statesmen and jurists of the country. Chief 
 Justice Marshall, indeed, in his opinion in that case, says: 
 " It is more than possible that the preservation of rights 
 of this description was not particularly in the view of the 
 
20 
 
 framers of the constitution, when the clause under con- 
 sideration was introduced into the instrument." (4 Wheat., 
 644.) Probably in view of this somewhat unexpected appli- 
 cation of the clause, operating, as it did, to deprive the States 
 of nearly all legislative control over corporations of their own 
 creation, the courts have given liberal construction to the 
 reservation of power to alter, amend, and repeal a charter ; 
 and have rustained some acts of legislation made under such a 
 reservation which are at least questionable. 
 
 In my judgment the reservation is to be interpreted as 
 placing the State Legislature back on the same platform of 
 power and control over the charter containing it as it would 
 have occupied had the constitutional restriction about contracts 
 never existed ; and I think the reservation effects nothing 
 more. It certainly cannot be interpreted as reserving a right 
 to violate a contract at will. No Legislature ever reserved such 
 a right in any contract. Legislatures often reserve the right 
 to ^terminate a continuous contract at will ; but never to 
 .violate a contract, or change its terms without the consent of 
 the other party. The reserved power in question is simply 
 that of legislation ; to alter, amend, or repeal a charter. This 
 is very different from the power to violate or to alter the 
 terms of a contract at will. A reservation of power to violate 
 a contract, or alter it, or impair its obligation, would be re- 
 pugnant to the contract itself, and void. A proviso repugnant 
 to the granting part of the deed or to the enacting part of a 
 statute is void. Interpreted as a reservation of the right to 
 legislate, the reserved power is sustainable on sound principles ; 
 but interpreted as the reservation of a right to violate an 
 executed contract, it is not sustainable. 
 
 The question then comes back to the extent of the power 
 to legislate. But that is a restricted power restricted by 
 other constitutional provisions to which reference has already 
 been made. Certainly the'Legislature cannot in a charter of 
 incorporation, or in any other law, reserve 'o itself any greater 
 powers of legislation than the constitution itself concedes to it. 
 It seems to me clear, therefore, that the power reserved can- 
 not authorize a flat abrogation of the contract by Congress, 
 because, as before shown, such an abrogation would be a 
 
21 
 
 violation of those clauses which inhibit the taking of property 
 without process of law and without compensation. 
 
 It may be said that by reason of the reserved power to alter 
 and repeal a charter, this court has sustained legislative acts 
 imposing taxes from which the corporation by the charter was 
 exempted. This is true. But the imposition of taxes is pre- 
 eminently an act of legislation. Its temporary suspension, 
 conceded in a charter, is a suspension of the legislative power 
 pro tartto. Being such, a reservation of the right t'j legislate, or, 
 which is the same thing, to alter, amend, or repeal the charter, 
 necessardy includes the right to resume the power of taxation. 
 The same observations apply to the regulation of fares and 
 freights ; for this is a branch of the police power, applicable 
 to all cases which involve a common charge upon the people. 
 
 I conclude, therefore, that the power reserved to alter, 
 amend, and repeal the charter of the Union Pacific Railroad 
 Company is not sufficient to authorize the passage of the law 
 in question. 
 
 I \vill only add, further, that the initiation of this species of 
 legislation by Congress is well calculated to excite alarm. It 
 has the effect of announcing to the world, and giving it to be 
 understood, that this government does not consider itself 
 bound by its ertgngements. It sets the examp'e of repudiation 
 of government obligations. It strikes a blow at the public 
 credit. It asserts the principle that might makes right. It 
 saps the foundations of public morality. Perhaps, however, 
 that these are considerations more properly to be addressed to 
 the legislative discretion. But when forced upon the attention 
 by what, in my judgment, is an unconstitutional, exercise of 
 legislative power, they have a more than ordinary weight and 
 siguincance. 
 
 DISSENTING OPINION OF MR. JUSTICE FIELD. 
 
 I also dissent from the judgment of the court in these cases. 
 
 The decision will, in my opinion, tend to erf ate insecurity 
 in the title to corporate property in the country. It, in effect, 
 determines that the general government, in its dealings with 
 
22 
 
 the Pacific Railroad Companies, is under no legal obligation 
 to fulfill its contracts, and that whether it shall do so is a 
 question of policy and not of duty. It also seems to me to 
 recogn/ze the right of the government to appropriate by legis- 
 lative decree the earnings of those companies without judicial 
 inquiry aud determination as to its claim to such earnings, 
 thus sanctioning the exercise of judicial functions in its own 
 eases. And in respect to the Central Pacific Company it 
 asserts a supremacy of the Federal over the State Govern- 
 ment in the control of the corporation which, in my judgment, 
 is subversive of the rights of the State. I, therefore, am con- 
 strained to add some suggestions to those presented by my 
 associates, Justices Strong and Bradley. In what I have to 
 say I shall confine myself chiefly to the case of the Central 
 Pacific Company. That company is a State corporation, and 
 is the successor of a corporation of the same name, created 
 before the railroad acts of Congress were passed, aud of four 
 other corporations organized under the laws of the State. No 
 sovereign attributes possessed by the general government 
 were exercised in calling into existence the original company, 
 or any of the companies with which it is now consolidated. 
 They all derived their powers and capacities from the State, 
 and held them at its will. 
 
 The relation of the general government to the Pacific com- 
 panies is twofold ; that of sovereign in its own territory, and 
 that of contractor. As sovereign, its power extends to the 
 enforcement of such acts and regulations by the companies as 
 will insure, in the management of their roads and conduct of 
 their officers in its territory, the safety, convenience, and 
 comfort of the public. It can exercise such control in its ter- 
 ritory over all common carriers of passengers and property. 
 As a contractor it is bound by its engagements equally with a 
 private individual ; it cannot be relieved from them by any 
 assertion of its sovereign authority. 
 
 Its relation to the original "Central Pacific Company, and to 
 the present company as its successor, in the construction and 
 equipment of its road, and its use lor public purposes, was, 
 and is that of a contractor, and the rights and obligat ons of 
 both are to be measured, as in the case of similar relations 
 
23 
 
 between other parties, by the terms and conditions of the 
 contract. 
 
 By the first section of the original railroad act of Congress, 
 passed in July, in 18(52, certain persons therein designated 
 were created a corporation by the name of the Union Pacific 
 Bail road Company, and authorized to construct and operate a 
 continuous railroad and telegraph line from a designated 
 point on the 100th meridian of longitude west from Greenwich 
 to the western boundary of Nevada Territory, and were in- 
 vested with the powers, privileges and immunities necessary 
 for that purpose, and with such as are usually conferred upon 
 corporations. 
 
 By subsequent provisions of the act and the amendatory 
 act of 1861, three grants were made to the company thus 
 created : a grant of a right of way over the public lands of the 
 United States for the road and telegraph Hue ; a grant of ten 
 alternate sections of laud on each side of the road, to aid in 
 its construction and that of the telegraph line ; and a grant of 
 a certain number of subsidy bonds of the United States, each 
 in the sum of one thousand dollars, payable in thirty years, 
 with semi-annual interest patents for the lands and the 
 bonds to be issued as each twenty consecutive miles of the 
 road and telegraph should be completed. These grants were 
 made upon certain conditions as to the completion of the road 
 and telegraph line, their construction and use by the govern- 
 ment, and their pledge as security for the ultimate payment of 
 the bonds. They were the considerations offered by the 
 government to the company for the work which it undertook. 
 
 By the act which thus incorporated the Union Pacific Com- 
 pany and made the grants mentioned, the United States pro- 
 posed to the Central Pacific that it should construct in like 
 manner a railroad and a telegraph line through the State of 
 California from a point near the Pacific coast to its eastern 
 boundary, upon the sama terms and conditions, and after com- 
 pleting them across the State, to continue their construction 
 through the territories of the United States until they should 
 meet and connect with the road and telegraph line of the 
 Union Pacific. 
 
 They, in effect, said to the company, that if it would 
 
24 
 
 struct a railroad and a telegraph line from tlie Pacific 
 Ocean eastward to a connection with the Union Pacific 
 the road to be in all respects one of first class and keep them 
 in repair, so that they could be used at all times by any de- 
 partment of the government for the transmission of dispatches 
 and the transportation of mails, troops, munitions of war, sup- 
 plies, and public stores, at reasonable rates of compensa- 
 tion, not exceeding such as were charged private persons for 
 similar services, and allow the government at all times the 
 preference in the use of the road and telegraph, they would 
 grant the company a right of way over the public lands for the 
 construction of the road and telegraph line, and grant to it ten 
 alternate sections of land on each side of the road, and give it 
 their bonds, each for the sum of $1,000, payable thirty years 
 after date, with semi-annual interest, such bonds to be issued 
 at the rate of sixteen, thirty-two, or forty-eight the mile, ac- 
 cording to the character of the country over which the road 
 should be constructed ; and would issue patents for the lands, 
 and the subsidy bonds as each tweny consecutive miles of the 
 road and telegraph should be completed in the manner pre- 
 scribed ; it being agreed that the company should pay the 
 bonds as they should mature, acd that for the security of their 
 payment they should constitute a second mortgage npon the 
 whole line of the road and telegraph, and that one half of the 
 compensation earned for services to the government, and, alter 
 the rompletion of the road, five per cent, of its net earnings, 
 should be retained and applied to tli9 payment of the bonds; 
 and also, that the company should complete the road by the 
 first of July, 1876, and keep it in repair and use thereafter, or 
 upon failure to do so, that the government might take posses- 
 sion of the road and complete it. or keep it in repair and nse, 
 as the case might be. And they further, in effect, said that if 
 these terms and conditions were satis !ac-torj T , the company 
 should file its written acceptance thereof with the Secretary of 
 the Interior, within six mouths theieafter ; and that thereupon 
 there should be a contract between them. 
 
 This proposition of the government the Central Pacific ac- 
 cepted, and filed its acceptance as required, and thereupon the 
 provisions of the act became a contract between it and the 
 
25 
 
 United States, as complete and perfect as could be made by 
 the most formal instrument. The United States thus came 
 under obligation to the company to make the grants and issue 
 the bonds stipulated, upon the construction of tLe road and 
 telegraph line in the manner prescribed. The corporate capa- 
 city of the company in no respect affected the nature of the 
 contract, or made it in any particular different from what it 
 would have been bad a natural person been one of the parties, 
 The company was not a creature of the United States, and Con- 
 gress could neither add to nor subtract from its corporate powers. 
 Tlift exercise of the right of eminent domain allowed in the terri- 
 tories was not the exercise of a corporate power. That right be- 
 longs to the sovereign authority, and whoever exercises it does 
 so as the agent of that sovereignty. Nor was its character as 
 a State institution changed by the fact that it was permitted by 
 Congress to extend its road through the teriitory of the United 
 States. This permission was no more than the license which is 
 usually extended by positive agreement, or by comity in the 
 absence of such agreement, by one State to the corporations of 
 another State, to do business and own property in its jurisdic- 
 tion. Such license is not the source of the corporate powers 
 exercised. Insurance companies, express companies, and, in- 
 deed, companies organized for almost eveiy kind of business, 
 are, by comity, permitted throughout the United States, and 
 generally throughout the civilized world, to do business, make 
 contracts, and exercise their corporate powers in a juris lic- 
 tioo, where, in a strict legal sense, they have no corporate 
 existence. The Pacific Mail Steamship Company, lor example, 
 to take an illustration mentioned by counsel, is a corporation 
 created under the laws of the Stata of New York and, like the 
 Central Pacific, has been subsidized by the United States. 
 Its ships visit Central America, California, Japan, and China, 
 and in all these places it leases or owns wharves and makes 
 and enforces contracts necessary to the transaction of its busi- 
 ness ; yet no one has ever pretended or suggested that it de- 
 rived any of its corporate powers from the United States, or 
 from the authorities of any of the places named. By consent 
 of those authorities, expressed in terms, or implied in what is 
 understood as their comity, it exercises powers derr 
 from the State of New York. 
 
26 
 
 When, therefore, Congress assented to the extension into 
 the territory of the United States of the road which the Cen- 
 tral Pacific was authorized by its charter to construct in Cali- 
 fornia, it was deemed important for the company to obtain also 
 the consent and authorit^v of the State to act without its limits 
 and assume responsibilities not originally contemplated. Ac- 
 cordingly, in 1864, the Legislature of the State, at its second 
 session after the adoption of the original railroad act of Con- 
 gress, in order to enable the company to comply with its pro- 
 visions and conditions, authorized the company to construct, 
 maintain, and operate the road in the territory lying east of 
 the State, and invested it with the rights, privileges, and pow- 
 ers granted by the act of Congress, with the reservation, how- 
 ever, that the company should be subject to all the laivs of the 
 State concerning railroad and telegrnph lines, except that mes- 
 sages and property of the United States, of the State, and of 
 the company should have priority of transmission and trans- 
 portation. The extent of the power which was thus reserved 
 we shall hereafter consider. It is sufficient at present to ob- 
 serve that it was as ample and complete as it is possible for 
 one sovereignty to exert over institutions of its own creation, 
 and that its exercise is incompatible with the control asserted 
 by the law of Congress of 1878, which has given rise to the 
 present suit. 
 
 The Central Pacific Company having accepted, as already 
 stated ,the conditions proffered by Congress, proceeded at once 
 to the execution of its contract. In the face of great obsta- 
 cles, doubts and uucerta : nties, its directors commenced and 
 prosecuted the work, and within a period several years less 
 than that prescribed, its telegraph line an I road were com- 
 pleted the latter with all the appurtenances of a first-class 
 road and were accepted by the government. Patents for the 
 land granted and the subsidy bonds mentioned were accord- 
 ingly issued to the company. Since then the road and tele- 
 graph line have been kept in repair and use, and the govern- 
 ment has enjoyed all the privileges in the transmission of dis- 
 patches over the telegraph, and in the transportation of mails, 
 troops, munitions of war, supplies, and public stoves over the 
 road, which were stipulated. There has been no failure on the 
 
27 
 
 part of the company to comply with its engagements, nor is 
 any complaint of delinquency or neglect in its action made by 
 the government. The road is more valuable now than on the 
 day of its completion. It has been improved in its rails, 
 bridges, cars, depots, turn-outs, machine shops, and all other 
 appurtenances. Its earnings have been constantly increasing, 
 and it constitutes to-day a far better security to the United 
 States for the ultimate payment of the subsidy bonds than at 
 any period since its completion, and to the government it has 
 caused, with the connecting road of the Union Pacific, an im- 
 mense saving of expense. The records of the different de- 
 partments show an annual saving, as compared with previous 
 expenditures, in the item of transportation alone of the mails, 
 troops, and public stores, of five millions, aggregating at this 
 day over fifty millions of dollars. 
 
 "Whilst the company was thus complying in all respects with 
 its engagements, the act of May 7, 1878, was passed, altering 
 in essential particulars the contract of the company and greatly 
 increasing its obligations. By the contract, only one-half of 
 the compensation tor transportation for the government is to 
 be retained and applied towards the payment of the bonds. 
 By the act of 1878, the whole of such compensation is to be 
 retained and thus applied. By the contract, five per cent, only 
 of the net earnings of the road are to be paid to the United 
 States to be applied upon the subsidy bonds. By the act of 
 1878, twenty-five per cent, of the net earnings are to be thus 
 paid and applied. By the contract, the only security which 
 the government had for its subsidy bonds was a second mort- 
 gage on the road and its appurtenances and telegraph line ; 
 and the company was allowed to give a first mortgage as se- 
 curity for its own bonds, issued for an equal amount. By the 
 Act of 1878, additional security is required for the ultimate 
 payment of its own bonds, and the subsidy bonds of the United 
 States, by the creation of what is termed a sinking lund 
 that is, by compelling the company to deposit twelve hundred 
 thousand dollars a year in the treasury of the United States,. 
 to be held for such paj'ment, or so much tin-roof, as may be 
 necessary to make the five per cen f . net earnings the whole 
 sum earned as compensation for services, and sufficient in ad- 
 
28 
 dition to make the whole reach twenty-five per cent, of the net 
 
 It is not material, in the view I take of the subject, whether 
 the deposit of this large sum in the treasury of the creditor 
 be termed a payment or something else. It is the exaction 
 from the company of money for which the original contract 
 did not stipulate which constitutes the objectionable feature 
 of the act of 1873. The act thus makes a great change in the 
 liabilities of the com pan} 7 . Its purpose, however disguised, 
 is to coerce the payment of money years in advance of the 
 iime prescribed by the contract. That such legislation is be- 
 yond the power of C mgress I cannot entertain a doubt. The 
 clauses of the original acts reserving a right to Congress to 
 alter or amend them do not, in my judgment, justify the legis- 
 lation. The power reserved under these clauses is declared 
 to be for a specific purpose. The language in the act of 1862 
 is as follows : " And the better to accomplish the object of 
 this act, to promote the public interest and welfare by the 
 construction of said railroad and telegraph line, and keeping 
 the same in working order, and to secure to the government 
 at all times (but particularly in time of war) the use and bene- 
 fits of the same for postal, military and other purposes, Con- 
 gress may at any time having due regard for the rights of 
 said companies named horein add to, alter, amend, or repeal 
 this -act." (Sec. 18.) The language of the amendatory act of 
 1804 is more general : "That Congress may at any time alter, 
 amend, or repeal this act." The two acts are to be read to- 
 gether ; they deal with the s;une subject ; are to be treated as 
 if passed at the same time. (Prescott vs. Railroad Co., 16 
 Wall, ( 03 J The limitations, therefore imposed upon the ex- 
 ercise of the pinver of alteration and amendment in the act 
 of 18 '2 must be held to apply to the power reserved in the 
 act of 18C4. They are not repealed, either expressly or im- 
 pliedly, by anything in the latter act. If this be so, the legis- 
 lation of 1878 can find no support in the clauses. The con- 
 ditions upon which the reserved power could be exercised 
 under them did not then exist. The road and telegraph had 
 years before been constructed and always kept iu working 
 order; and the government has at all times been secured in 
 their use and benefits for postal, military, and other purposes. 
 
29 
 
 But if the reserved power of alteration and amendment be 
 considered as freed from the limitations designated, it cannot 
 be exerted to affect the contract so far as it has been execu- 
 ted, or the rights vested under it. When the road was com- 
 pleted in the manner prescribed and accepted, the company 
 became entitled as of right to the land and subsidy bonds 
 stipulated. The title to the land was perfect on the issue of 
 the patents ; the titb to the bonds vested on their delivery. 
 Any alteration of the acts under the reservation clauses, or 
 their repeal, could not revoke the title to the land or recall 
 the bonds or change the right of the company to either. So 
 far as these are concerned the contract was, long before the 
 act of 1878, an executed and closed transaction, and they 
 were as much beyond the reach of the government as any 
 other property vested in private proprietorship. The right to 
 hold the subsidy bonds for Jtiie period at which they are to 
 run without paying or advancing money on them before their 
 maturity, except as originally provided, or furnishing other 
 security than that originally stipulated, was, on their delivery ^ 
 as perfect as the right to hold the title to the land patented 
 unincumbered by future liens of the government. Any alter- 
 ation or amendment could only operate for the future and af- 
 fect subsequent acts of the company ; it could have no oper- 
 ation upon that which had already been done and vested. 
 
 There have been much discussion and great difference of 
 opinion on many points as to the meaning and effect of a 
 similar reservation in statutes of the States, but on the point 
 that it does not authorize any interference with vested rights 
 all the authorities concur. Such was the language of Chief 
 Justice Shaw in the case cited from the Supreme Court of 
 Massachusetts ; and such is the language of Mr. Justice 
 Clifford in the cases cited from this court. And such must be 
 the case, or there would be no safety in dealing with the gov- 
 ernment where such a clause is inserted in its legislation. It 
 could undo at pleasure everything clone under its authority, 
 and despoil of their property those who had trusted to its 
 faith. (Essex Co. vs. The Commonwealth, 13 Gray, 253 ; 
 Miller vs. The State, 15 Wall., 49d ; Holyoke Co. vs. Lyman, 
 Ibid, 524 ; see also Shields vs. Ohio, 95 U. S., 324, and Sage 
 vs. Dillard, 15 B. Monroe, 35.) 
 
30 
 
 The object of a reservation of this kind in acts of incorpo- 
 ration, is to insure to the government control over corporate 
 franchises, rights, and privileges which, in its sovereign or 
 legislative capacity, it may call into existence, not to interfere 
 ivith contracts which the corporation created by it may make. 
 Such is the purport of our language in Tomliiison vs. Jessup, 
 where we state the object of the reservation to be " to prevent 
 a grant of corporate rights and privileges in a form which will 
 preclude legislative interference with their exercise, if the public 
 interest should at any time require such interference," and that 
 ' the reservation affects the entire relation between the State 
 and corporation, and places under legislative control all rights, 
 privileges and immunities derived by its charter directly from the 
 Slate." (15 Wall., 454.) The same thing we repeated, with 
 greater distinctness, in the case of the Railroad Company vs. 
 Maine, where we said that by the reservation the State retained 
 the power to alter the act incorporating the company, in all 
 particulars constituting the grant to it of corporate rights, privi- 
 leges and immunities ; and that "the existence of the corpora- 
 tion, and its franchises and immunities, derived directly from 
 the State, were thus kept under its control." But, we added, 
 that "rights and interests acquired by the company, not con- 
 stituting a part of the contract of incorporation, stand upon a dif- 
 ferent footing." (96 U. S., 499.) 
 
 Now, there was no grant by the United States to the Central 
 Pacific Company, of corporate rights, privileges, and immuni- 
 ties. No attribute of sovereignty was exercised by them in its 
 creation. It took its life, and all its attributes and capacities 
 from the State. Whatever powers, rights and privileges it 
 acquired from the United States it took under its contract with 
 them, and not otherwise. The relation between the parties 
 being that of contractors, the rights and obligations of both, 
 as already stated, are to be measured by the terms and condi- 
 tions of the contract. And -when the government of the United 
 States entered into that contract, it laid aside its sovereignty 
 and put itself on terms of equality with its contractor. It was 
 then but a ci'-il corporation, as incapable as the Central Pacific 
 of releasing itself from its obligations or of finally determining 
 their extent and character. It could not, as justly observed 
 
31 
 
 by one of the counsel who argued this case, "release itself and 
 /told (he other party to the contract. It could not change its 
 olilliations and hold its rights unchanged. It cannot bind itself 
 as a civil corporation, and loose itself by its sovereign legisla- 
 tive power." This principle is aptly expressed by the great 
 conservative statesman, Alexander Hamilton, in his report to 
 Congress on the public credit, in 1795 : " When a government," 
 he observes. " enters into a contract with an individual, it 
 deposes, as to the matter of the contract, its constitutional 
 authority, and exchanges the character of legislator for that of 
 a moral agent, with the same rights and obligations as an indi- 
 vidual. Its promises may be justly considered out of its power 
 to legislate, unless in aid of them. It is, in theory, impossible 
 to reconcile the two ideas of a promise which obliges with a 
 power fo make a law which can vary the effect of it" (Hamil- 
 ton's Works, vol. 3, p. 518, 519). 
 
 When, therefore, the government of the United States en- 
 tered into the contract with the Central Pacific, it could no 
 more than a private corporation or a private individual finally 
 construe and determine the extent of the company's rights and 
 liabilities. If it had cause of complaint against the company, 
 it could not undertake, itself, by legislative decree, to redress 
 the grievance, but was compelled to seek redress as all other 
 civil corporations are compelled, through the judicial tribun- 
 als. If the company was wasting its property, of which no 
 allegation is made, or impairing the security of the government, 
 the remedy by suit was ample. To declare that one of two 
 contracting parties is entitled, under the contract between 
 them, to the payment of a greater sum than is admitted to be 
 payable, or to other jr greater security than that given, is not 
 a legislative function. It is a judicial action ; it is the exercise 
 of judicial power ; and all such power, with respect to any 
 transaction arising under the laws of the United States, is 
 vested by the constitution in the courts of the country. 
 
 In the case of The Commonwealth vs. The Proprietors of 
 New Bedford Bridge, a corporation of Massachusetts, the Su- 
 preme Court of that State, speaking with reference to a con- 
 tract between the parties, uses this language : " Each has 
 equal rights and privileges under it, and neither can interpret 
 
92 
 
 its terms authoritatively, so as to control and bind the rights 
 of the other. The commonwealth has no more authority to 
 construe the charter than the corporation. By becoming a 
 party to a contract with its citizens, the government divests 
 itself of its sovereignty in respect to the terms and conditions 
 of the contract and its construction and interpretation, and 
 stands in the same position 'as a private individual. If it were 
 otherwise, the rights of parties contracting with the govern- 
 ment would be held at the caprice of the sovereign, and ex- 
 posed to all the risks arising from the corrupt or ill-judged use 
 of misguided power. The interpretation and construction of 
 contracts, when drawn in question, belong exclusively to the 
 judicial department of the government. The Legislature has 
 no more power to construe their own contracts with their citi- 
 zens than those which individuals make with each other. They 
 can do neither without exercising judicial powers which would 
 be contrary to the elementary principles of our government, 
 as set forth in the Declaration of Eights." (2 Gray, 350.) 
 
 In that case the charter of the corporation authorized the 
 building of a toll-bridge across a navigable river, with two 
 suitable draws at least thirty feet wide. A subsequent act re- 
 quired draws to be made of a greater width ; but the court held 
 that the question whether the draws already made were suit- 
 able, and constructed so as not unreasonably or unnecessarily 
 to obstruct or impede public navigation, was not a question to 
 be determined by the Legislature, or by the corporation, but 
 by the courts. It was a question which could not be authorita- 
 tively determined by either party so as to control and bind 
 the other. " Like all other matters involving a contro- 
 versy concerning public duty and private rights," said the 
 court, " it is to be adjusted and settled in the regular tribunals, 
 where questions of law and fact are adjudicated on fixed and 
 established principles, and according to the forms and usages 
 best adapted to secure the impartial administration of justice." 
 In the case at bar, the government, by the act of 1878, under- 
 takes to decide authoritatively what the obligations of the Cen- 
 tral Pacific are, and in effect declares that if the directors of 
 the company do not respect its construction, and obey its man- 
 dates, founded upon such construction, they bhall be subject 
 to fine and imprisonment. 
 
w 
 
 The, distinction between a judicial and a legislative act is 
 well defined. The one determines what the law is, and what 
 the rights of parties are, with reference to transactions already 
 had ; the other prescribes what the law shall be in future cases 
 arising under it. Wherever an act undertakes to determine a 
 question of right or obligation, or of property, as the founda- 
 tion upon which it proceeds, such act is to that extent a judi- 
 cial one, and not the proper exercise of legislative functions. 
 Thus, an act of the Legislature of Illinois authorizing the sale 
 of the lands of an intestate, to raise a specific sum, to paj 
 certain parties their claims against the estate of the deceased 
 for moneys advanced and liabilities incurred, was held uncon- 
 stitutional on the ground that it involved a judicial determina- 
 tion that the estate was indebted to those parties for the 
 moneys advanced and liabilities incurred. The ascertainment 
 of indebtedness from one party to another, and a direction for 
 its payment, the court considered to be judicial acts which 
 could not be performed by the Legislature. (3 Scam., 238). So 
 also an act of the Legislature of Tennessee authorizing a guard- 
 ian of infant heirs to sell certain lands of which their ancestor 
 died seized, and directing the proceeds to be applied to the 
 payment of the ancestor's debts, was, on similar grounds, held 
 to be unconstitutional. (Jones vs. Perry, 10 Yerger, 59). Tested 
 by the principle thus illustrated, the act of 1878 must be held 
 in many ways to transcend the legislative power of Congress. 
 
 I cannot assent to the doctrine which would ascribe to the 
 Federal Government a sovereign right to treat as it may choose 
 Corporations with which it deals, and would exempt it from 
 that great law of morality which should bind all governments, 
 as it binds all individuals, to do justice and keep faith. Be- 
 cause it was deemed important, on the adoption of the con- 
 stitution, in the light of what was known as tender laws, ap- 
 praisement laws, stay laws, and instalment laws of the States, 
 which Story says had prostrated all private credit and all 
 private morals, to insert a clause prohibiting the States from 
 passing any law impairing the obligation of contracts, and no 
 clause prohibiting the Federal Government from like legisla- 
 tion is found, it is argued that no such prohibition upon it 
 exists. 
 3 
 
34 
 
 '"It is true," as I had occasion to observe k in another case, 
 "there is no provision in the constitution forbidding in express 
 terms such legislation. And it is also true that there are ex- 
 press powers delegated to Congress, the execution of which 
 necessarily operates to impair the obligation of contracts. It 
 was the object of the framers of that instrument to create a 
 national government, competent to represent the entire coun- 
 try in its relations with foreign nations and to accomplish by 
 its legislation measures of common interest to all the people, 
 which the several States in their independent capacities were 
 incapable of effecting, or if capable, the execution of which 
 would be attended with great difficulty and embarrassment. 
 They, therefore, clothed Congress with all the powers essen- 
 tial to the successful accomplishment of these ends, and care- 
 fully withheld the grant of all other powers. Some of the 
 powers granted, from their very nature, interfere in their exe- 
 cution with contracts of parties. Thus war suspends inter- 
 course and commerce between citizens or subjects of belliger- 
 ent nations ; it renders during its continuance the performance 
 of contracts previously made, unlawful. These incidental con- 
 sequences were contemplated in the grant of the war power. 
 So the regulation of commerce and the imposition of duties 
 may so affect the prices of articles imported or manufactured 
 as to essentially alter the value of previous contracts respect- 
 ing them ; but this incidental consequence was seen in the 
 grant of the power over commerce and duties. There can be 
 no valid objection to laws passed in execution of express pow- 
 ers, that consequences like these follow incidentally from their 
 execution. But it is otherwise when such consequences do 
 not follow incidentally, but are directly enacted." 
 
 " The only express authority for any legislation affecting the 
 obligation of contracts is found in the power to establish a 
 uniform system of bankruptcy, the direct object of which is to 
 release insolvent debtors from their contracts upon the sur- 
 render of their property." (12 Wallace, 663.) From this ex- 
 press grant in the case of bankrupts the inference is deducible 
 that there was no general power to interfere with contracts. If 
 such general power existed there could have been no occasion 
 for the delegation of an express power in the case of bank- 
 
35 
 
 rupts. The argument for the general power from the absence 
 of a special prohibition proceeds upon a misconception of the 
 nature of the Federal Government as One of limited powers. It 
 can exercise only such powers as are specifically granted or are 
 necessarily implied. All other powers, not prohibited to the 
 States, are reserved to them or to the people. As I said in the 
 <'ase referred to, the doctrine that where a power is not ex- 
 pressly forbidden it may be exercised, would change the whole 
 c'haracter,of our government. According to the great com- 
 mentators on the constitution, and the opinions of the great 
 jurists, who have studied and interpreted its meaning, the true 
 doctrine is, that where a power is not in terms granted, and is 
 not necessary or proper for the exercise of a power thus grant- 
 ed, it does not exist. It would not be pretended, for example, 
 had there been no amendments to the constitution as origi- 
 nally adopted, that Congress could have passed a law respect- 
 ing an establishment of religion or prohibiting the free exercise 
 thereof, or abridging the freedom of speech, or the right of the 
 people to assemble and petition for a redress of grievances. 
 The amendments prohibiting the exercise of any such power 
 were adopted in the language of the preamble accompanying 
 them, when presented to the States, " in order to prevent mis- 
 conception or abuse " of the powers of the constitution. 
 
 Independent of the3e views, there are many considerations 
 which lead to the conclusion that the power to impair con- 
 tracts, by direct action to that end, does not exist with the 
 general government. In the first place, one of the objects of 
 the constitution, expressed in its preamble, was the establish- 
 ment of justice, and what that meant in its relations to con- 
 tracts is not left, as was justly said by the late Chief Justice? 
 in Hepburn vs. Griswold, to inference or conjecture. As he 
 observes, at the time the constitution was undergoing discus- 
 sion in the convention, the Congress of the confederation was 
 engaged in framing the ordinance for the government of the 
 Northwestern Territory, in which certain articles of compact 
 were established between the people of the original States and 
 the people of the territory, for the purpose, as expressed in the 
 instrument, of extending the fundamental principles of civil 
 and religious liberty upon which the States, their laws and 
 
36 
 
 constitutions, were erected. By that ordinance it was declared, 
 that in the just preservation of rights and property, " no law 
 ought ever to be made, or have force in the said territory, that 
 shall, in any manner, interfere with or affect private contracts 
 r engagements btmajide and without fraud previously formed." 
 The same provision, adds the Chief Justice, found more con- 
 densed expression in the prohibition upon the States against 
 impairing the obligation of contracts, which has ever been re- 
 cognized as an efficient safeguard against injustice, and, though 
 the prohibition is not applied in terms to the government of 
 the United States, he expressed the opinion, speaking for him- 
 self and the majoiity of the court at the time, that it was clear 
 (k that those who framed and these who adopted the constitu- 
 tion intended that the spirit of this prohibition should per- 
 vade the entire body of legislation, and that the justice which 
 the constitution was ordained to establish was not thought by 
 them to be compatible with legislation of an opposite ten- 
 dency." (8 Wallace, 623.) 
 
 Similar views are found expressed in the opinions of other 
 Judges of this court. In Calder vs. Bull, which w^as here in 
 1708, Mr. Justice Chase said that there were acts which the 
 Federal and State Legislatures could not do without exceeding 
 their authority, and among them he mentioned a law r which 
 punished a citizen for an innocent act ; a law that destroyed 
 or impaired the lawful private contracts of citizens ; a law that 
 made a man judge in his own case ; and a law T that took the 
 property from A and gave it to B. " It is against all reason 
 and justice," he added, "for a people to intrust a Le- 
 gislature with such powers, and, therefore, it cannot be pre- 
 sumed that they have done it. They may command what is 
 right" and prohibit what is wrong; but they cannot change in- 
 nocence into guilt, or punish innocence as a crime, or violate 
 the right of an antecedent lawful private contract, or the right 
 of private property. To maintain that a Federal or State Le- 
 gislature possesses such powers if they had not been expressly 
 restrained, would, in my opinion, be a political heresy alto- 
 gether inadmissible in all free republican governments." (3 
 Dallas, 383.) 
 
 In Ogden vs. Saundeis, which was before this court in 1827> 
 
37 
 
 Mr. Justice Thompson, referring to the clauses of the consti- 
 tution prohibiting the State from passing a bill of attainder, an 
 ex post facto law, or a law impairing the obligation of contracts, 
 said : " Neither provision can be strictly considered -as intro- 
 ducing any new principle, but only for greater security and 
 safety to incorporate into this charter provisions admitted by 
 all t > be among the first principles of our government. No 
 State court would, I presume, sanction and enforce an ex post 
 facto law, if no such prohibition was contained in the consti- 
 tution of the United States ; so, neither would retrospective 
 laws, taking away vested rights, be enforced. Such laws are 
 repugnant to those fundamental^principles^upon which every 
 just system of laws is founded." 
 
 In the Feilerali*t, Mr. Madison declared that laws impairing 
 the obligation of contracts were contrary to the first principle* 
 of the social compact and to every principle of sound legisla- 
 tion ; and in the Dartmouth College case Mr. Webster con- 
 tended that acts which were there held to impair the obliga- 
 tion of contracts were not the exercise of a power properly 
 legislative, as their object and effect was to take away vested 
 rights. " To justify the taking away of vested rights," he said, 
 " there must be a forfeiture, to adjudge upon and declare 
 which is the proper province of the judiciary." Surely the 
 constitution would have failed to establish justice had it al- 
 lowed the exercise of such a dangerous power to the Congress 
 of the United States. 
 
 In the second place, legislation impairing the obligation of 
 contracts impinges upon the provision of the constitution 
 which declares that no one shall be deprived of his property 
 without due process of law ; and. that means by law in its reg- 
 ular course of administration through the courts of justice. 
 Contracts are property, and a large portion of the 
 wealth of the country exists in that form. What- 
 ever impairs their value diminishes, therefore, the property 
 of the osvner, and if that be effected by direct legislative 
 action operating upon the contract, forbidding its enforcement 
 or transfer, or otherwise restricting its use, the owner is as 
 much deprived of his property without due process of law as 
 if the contract were impounded, or the value it represents were 
 in terms wholly or partially confiscated. 
 
38 
 
 In the case at bar tlie contract with the Central Pacific is y 
 aB I have said, changed in essential particulars. The company 
 is compelled to accept it in its changed form, arid by legisla- 
 tive decree, without the intervention of the courts ; that is, 
 without clue process of law, to pay out of its earnings each 
 year to its contractors, the United States, or deposit with them 
 a sum that may amount to twelve hundred thousand dollars, 
 and this twenty years before the debt to which it is to be ap- 
 plied becomes due and payable by the company. If this tak- 
 ing of the earnings of the company and keeping them from its- 
 use during these twenty years to come is not depriving the 
 company of its property, it would be difficult to give any mean- 
 ing to the provision of the constitution. It will only be ne- 
 cessary hereafter to give the seizure of another's property or 
 earnings a new name to call it the creation of a sinking fund, 
 or the providing against the possible wastefulness or improvi- 
 dence of the owner to get rid of the constitutional restraint. 
 To my mind, the evasion of that clause, the frittering away of 
 all sense and meaning to it, aie insuperable objections to the le- 
 gislation of Congress. Where contracts are impaired, or when 
 operating against the government are sought to be evaded and 
 avoided by legislation, a blow is given to the security of all 
 property. If the government w'll not keep its faith, little 
 better can be expected from the citizen. If contracts are not 
 observed, no property will, in the end, be respected ; and all 
 history shows that rights of person are unsafe where property 
 is insecure. Protection to one goes with protection to tlie 
 other; and there can be neither prosperity nor progress where 
 this foundation of all just government is unsettled. " The 
 moment," said the elder Adams, " the idea is admitted into- 
 society that property is aot as sacred as the laws of God, and 
 that there is not a force of law and public justice to protect it, 
 anarchy and tyranny commence." 
 
 I am aware of the opinion which prevails generally that the 
 Pacific railroad corporation's have, by their accumulation of 
 wealth, and the numbers in their employ, become so powerful 
 as to be disturbing and dangerous influences in the legislation 
 of the country; and that they should, therefore, be brought 
 by stringent measures into subjection to the State. This may 
 
be true ; I do not say that it is not ; but if it is, it furnishes 
 no justification for the repudiation or evasion of the contracts 
 made with them by the government. The law that protects 
 the wealth of the most powerful protects also the earnings of 
 the most humble ; and the law which would confiscate the 
 property of the one would in the end take the earnings of the 
 other. 
 
 There are many other objections to the act of Congress be- 
 sides those I have mentioned each to my mind convincing 
 but why arid to what has already been said ? If the reasons 
 given will not convince, neither would any others which could 
 be presented. I will, therefore, refer only to the interference 
 of the law with the rights of the State of California. 
 
 The Central Pacific being a State corporation, the law cie- 
 ating it is, by the constitution of California, subject to altera- 
 tion, amendment and repeal by its Legislature at any time a 
 power which the Legislature can neither abdicate nor transfer. 
 In its assent given to the company to extend its road into the 
 territory of the United States the general government Lav- 
 ing authorized the extension the Legislature reserved the 
 same control which it possesses over other railroad and tele- 
 graph companies created by it. That control under the new 
 constitution, goes, as is claimed, to the extent of regulating 
 the fares and freights of the company, thus limiting its income 
 or earnings ; and of supervising all its business, even to the 
 keeping of its accounts, making disobedience of its Directors 
 to the regulations established for its management punishable 
 by fine and imprisonment ; and the Legislature may impose 
 the additional penalty of a forfeiture of the franchises and 
 privileges of the company. The law in existence when the 
 corporation was created, and still in force, requires the crea- 
 tion of a sinking fund by the company to meet its bonds, and 
 under it large sums have been accumulated for that purpose, 
 and still further sums must be raised. In a word, the law 
 of the State undertakes to control and manage the corpora- 
 tion, in all particulars required for the service, convenience 
 and protection of the public ; and can there be a doubt in the 
 mind of any one that over its own creations the State has, with- 
 in its own territory, as against the United States, the superior 
 
40 
 
 authority? Yet the power asserted by the general govern- 
 ,ineut in the passage of the act of 1878 would justii'y legisla- 
 tion affecting all the affairs of the company, both in the State 
 and in the territories of the United States. It could treble 
 the amount of the sum to be anuully deposited in the sinking 
 fund; it could command the immediate deposit of the entire 
 amount of the ultimate indebtedness; it could change the or- 
 der of the liens held by the government and the first mortgage 
 bondholders ; it could extend the lien of the government 
 beyond the property to the entire income of the company, and, 
 in fact, does so by by the act in question (sec. 9) ; it could 
 require the transportation for the government to be made 
 without compensation, and it could subject the company to 
 burdens which, if anticipated at the time, would have pre- 
 vented the construction of the road. A power thus vast, once 
 admitted to exist, might be exerted to control the entire affairs 
 of the company, in direct conflict with the legislation of the 
 State ; its exercise would be a mere matter of legislative dis- 
 cretion in Congress. Yet it is clear that both Governments 
 cannot control and manage the company in the same territory, 
 subjecting its directors to fine and imprisonment for disobey- 
 ing their regulations. Under the constitution the manage- 
 rnent of local affairs is left chiefly to the States, and it never 
 entered into the conception of it framers that under it the 
 creations of the States could be taken from their control. 
 Certain it is that over no subject is it more important for their 
 interests that they should retain the management and direction 
 than over corporations brought into existence by them. The 
 decision of the majority goes a great way further, it appears 
 to me, than any heretofore made by the court to weaken the 
 authority of the States, in this respect, as against the will of 
 Congress. According to my understanding of its scope and 
 reach, the United States have only to make a contract with a 
 State corporation, and a loan to it, to oust the jurisdiction of 
 the State and place the corporation under their direction. It 
 would seem plain that if legislation, taking institutions of the 
 State from its control, can be sustained by this court, the gov- 
 ernment will drift from the limited and well guarded system 
 established by our fathers into a centralized and consolidated 
 government. 
 
41 
 CASE OF THE UNION PACIFIC R. E. CO. 
 
 ME. CHIEF JUSTICE WAITK DELIVERED THE OPINION OF THE 
 
 COURT. 
 
 The single question presented by this case is as to the con- 
 stitution nlity of that part of the act of May 7th, 18"8, wliich 
 establishes in the treasury of the United States a sinking fund. 
 The validity of the rest of the act is not necessarily involved. 
 
 It is our duty, when required in the regular course of judicial 
 proceedings, to declare an act of Congress void if not within 
 the legislative power of the United States, but this declaration 
 should never be made except in a cle^r case. Every possible 
 presumption is in favor of the validity of a statute, and this 
 continues until the contrary is shown beyond a rational doubt. 
 One branch of the government cannot encroach on the domain 
 of another without danger. The safety of our institutions de- 
 pends in no small degree on the strict observance of this salu- 
 tary rule. 
 
 The United States cannot, any more than a State, interfere 
 with private rights, except for legitimate governmental pur- 
 poses. They are not included within the constitutional pro- 
 hibition which prevents States from passing laws impairing the 
 obligation of contracts, but equally with the States they are 
 prohibited from depriving persons or corporations of property 
 without due process of law. They cannot legislate back to 
 themselves, without making compensation, the lands they have 
 given this corporation to aid in the construction of its rail- 
 road. Neither can they by legislation compel the corporation 
 to discharge its obligations in respect to the subsidv bonds 
 otherwise than according to the terms of the contract already 
 made in that connection. The United States are as much 
 bound by their contracts as are individuals. If they repudiate 
 their obligations, it as much repudiation, with all the wrong 
 and reproach that term implies, as it would be if the re- 
 pudiatof had been a State or a municipality or a citizen. No 
 change can be made in the title created by the giant of the 
 lands, or in the contract for the subsidy bonds, without the 
 consent of the corporation. All this is indisputable. 
 
 The contract of the company in respect to the subsidy bonds 
 
is to pay both principal and interest when the principal ma- 
 tures, unless the debt is sooner discharged by the application 
 of one-half the compensation for transportation and other ser- 
 vices rendered for the government, and the five per cent, of net 
 earnings, as specified in the charter. This was decided in 
 U. P. E. E. Co. vs. U. a, 91 U. a, 72. The precise point to be 
 determined now is, whether a statute which requires the com- 
 pany in the management of its affairs to set aside a portion of 
 its current income as a sinking fund to meet this and other 
 mortgage debts when they mature, deprives the company of its 
 property without due process of law, or in any other way im- 
 properly interferes with vested rights. 
 
 This corporation is :i creature of the United States. It is a 
 private corporation created for public purposes, and its prop- 
 erty is to a large extent devoted to public uses. It is, there- 
 fore, subject to legislative control so far as its business affects 
 the public interests. (0., B. & Q. R E. Co. vs. Iowa, 94. U. S., 
 155.) 
 
 It is unnecessary to decide what power Congress would have 
 had over the charter if the right of amendment had not been 
 reserved ; for, as we think, that reservation has been made. 
 In the act of 186 .i, section 18, it was accompanied by an ex- 
 planatory statement, showing that this had been done " the 
 better to accomplish the object of this act, namely, to promote 
 the public interest and welfare by the construction of said rail- 
 road and telegraph line, and keeping the same in working order, 
 and to secure to the government at all times (but especially in 
 time of war) the use and benefits of the same for postal, mili- 
 tary, and other purposrs," and by an injunction that it should 
 be used \\ith "due regard for the rights of said companies." 
 In the act of 1864, however, there is nothing except the simple 
 words (section 22), " that Congress may at any time alter, 
 amend, and [or] repeal this act." Taking both acts together, 
 and giving the explanatory-statement in that of 1862 all the 
 effect it can be entitled to, we are of the opinion that Congress 
 not only retains, but has given special notice of its intention 
 to retain, full and complete power to make such alterations 
 and amendments of the charter as come within the just ^cope 
 of legislative power. That this power has a limit no one 
 
43 
 
 can doubt. All agree that it cannot be used to take away 
 property already acquired under the operation of the charter, 
 or to deprive the corporation of the fruits actually reduced to 
 possession of contracts lawfully made; but, as was said by this 
 court, through Mr. Justice Clifford, in Miller vs. The State, 15 
 Wall., 4 ( J8, " it may safely be affirmed that the reserved power 
 may be exercised, and to almost any extent, to carry into effect 
 the original purposes of the grant, or to secure the due admin- 
 istration of its affairs, so as to protect the rights of stockhold- 
 ers and of creditors, and for the proper disposition of its 
 assets;" and again, in Holyoke Co. vs. Lyman, 15 Wall., 519, 
 " to protect the rights ot the public and of the corporators, or 
 to promote the due administraticn of the affairs of the cor- 
 poration." Mr. Justice Field, also speaking for the court, was 
 even more explicit when, in Tomlinson vs. Jessup, 15 Wall., 
 459, he said, " the reservation effects the entire relation be- 
 tween the State and the corporation, and places under legisla- 
 tive control all rights, privileges, and immunities derived by 
 its charter directly from the State ;" and again, as late as Rail- 
 road Company vs. Maine, 90 U. S., 510, " by the reservation 
 *...;-*.-,* the State retained the power to alter it (the charter] 
 in all particulars constituting the grant to the new company, 
 formed under it, of corporate rights, privileges, and immuni- 
 ties." Mr. Justice Swayne, in Shields vs. Ohio, 95 U. S., 324, 
 says, by way of limitation, ''the alterations must be reasonable ;, 
 they must be made in good faith, and be consistent with the 
 object and scope of the act of incorporation. Sheer oppres- 
 sion and wrong cannot be inflicted under the guise of amend- 
 ment or alteration." The rules as here laid down are fully 
 sustained by authority. Further citations are unnecessary. 
 
 Giving full effect to the principles which have thus been 
 authoritatively stated, we think it safe to say that whatever 
 rules Congress might have prescribed in the original charter 
 for the government of the corporation in the administration of 
 its affairs, it retained the power to establish by amendment. 
 In so doing it cannot un lo wh it has alrea ly baen done, and 
 it cannot unm ike contracts tint have already been madt3 ; but 
 it may provide for what shall be done in the future, and may 
 direct what preparation shall be made for the due performance 
 
44 
 
 of contracts already entered into. It might originally have 
 prohibited the borrowing of money on mortgage, or it might 
 have s;ddthat no bonded debt should be created without ample 
 provision by sinking fund to meet it at maturity. Not having 
 done so at first, it cannot now by direct legislation vacate 
 mortgages already made under the powers originally granted, 
 nor release debts already contracted. A prohibition now 
 against contracting debts will not avoid debts already incurred. 
 An amendment making it unlawful to issue bonds payable at a 
 distant day without at the same time establishing a fund for 
 their ultimate redemption, will not invalidate a bond already 
 out. All such legislation will be confined in its operation to 
 the future. 
 
 Legislative control of the administration of the affairs of a 
 corporation may, however, very properly include regulations by 
 which suitable provision will be secured in advance for the 
 payment of existing debts when they fall due. If a State un- 
 der its reserved power of charter amendment were to provide 
 that no dividends should be paid to stockholders from current 
 earnings until some reasonable amount had been set apait to 
 meet maturing obligations, we think it would not be seriously 
 contended that such legislation was unconstitutional, either 
 because it impaired the obligations of the charter contract or 
 deprived the corporation of its property without due process 
 of law. Take the case of an insurance company dividing its 
 unearned premiums among its stockholders without laying by 
 anything to meet losses, would any one doubt the power of the 
 State under its reserved right of amendment to prohibit such 
 dividends until a suitable fund had been established to meet 
 losses from outstanding risks? Clearly not, we think, and for 
 the obvious leason that vhile stockholders are entitled to re- 
 ceive all dividends that may legitimately be declared and paid 
 out of the current net income, their claims on the property of 
 the corporation are always, subordinate to those of creditors. 
 The property of a corporation constitutes the fund from which 
 its debts are to be paid, and if the officers improperly attempt 
 to divert this fund from its legitimate uses, justice requires that 
 they should in some way" be restrained. A court of equity 
 would do this if called upon in an appropriate manner, and it 
 needs no argument to show that a legislative regula- 
 
45 
 
 tion which requires no more of the corporation than a court 
 would compel it to do without legislation, is not unreasonable. 
 
 Such a regulation, instead of being destructive in its char- 
 acter, Would be eminently conservative. Railroads are a pe- 
 culiar species of property, and railroad corporations arc in 
 some respects peculiar corporations. Large amounts of money 
 are required for construction and equipment, and this, to a 
 great extent, is represented by a funded debt which, as well as 
 the capital stock, is sought after for investment, and is dis- 
 tributed widely among large numbers of persons. Almost a& 
 a matter of necessity it is difficult to secure any concert of ac- 
 tion among the different classes of creditors and stockholders, 
 and, consequently, all are compelled to trust in a great degree 
 to the management of the corporation by those who are elected 
 as officers, without much, if -any, opportunity for personal su- 
 pervision. The interest of the stockholders, who, as a rule, 
 alone have the power to select the managers, is not unfre- 
 quently antagonistic to those of the debtholders, and it, there- 
 fore, is especially proper that the government, whose creature 
 the corporation is, should exercise its general powers of 
 supervision and do all it reasonably may to protect invest- 
 ments in the bonds and stock from loss through improvident 
 management. 
 
 No better case can be found for illustration than is presented 
 by the history of this corporation. Without undertaking in 
 any manner to cast censure upon those by whose matchless 
 energy this great road was built, and, as if by magic, put into 
 operation, it is a fact which cannot be denied, that when the 
 road was in a condition to be run, its bonds and stocks repre- 
 sented vastly more than the actual cost of the labor and ma- 
 terial which went into its construction. Great undertakings 
 like this, whose future is at the time uncertain, requiring, as 
 they 'do, large amounts of money to carry them on, seem to 
 make it necessary that extraordinary inducements should be 
 held out to capitalists to enter upon them, since a failure is 
 almost sure to involve those who make the venture in financial 
 ruin. It is not, however, the past with which we are now to 
 deal, but rather the present and the future. We are not sit- 
 ting in judgment upon the history of this corporation, but upon. 
 
46 
 
 its present condition. We now know that when the road was 
 completed, its funded debt alone was as follows : First mort- 
 gage, $27,232,000; subsidy bonds, $27,230,512, all maturing 
 thirty years after date, and that the average time of its matur- 
 ity is during the year 1897. In addition to this are now the 
 sinking fund bonds, the land grant bonds, and the Omaha 
 Bridge bonds, amounting to at least $20,000,000 more. The 
 interest on the first mortgage and all other classes of bonds, 
 except the subsidy bonds, will undoubtedly be met as it falls 
 due, but on the subsidy bonds, as has already been seen, no 
 interest is payable, except out of the half of the earnings for 
 government service, and the five per cent, of net earnings, un- 
 til the maturity of the principal. Thus far, as we have had 
 occasion to observe in the various suits which have come be- 
 fore us during the past few years, involving an inquiry into 
 these matters, the payments irom these sources have fallen 
 very far short of keeping down the accruing interest, and ac- 
 cording to present appearances it is not probably too much to 
 sny that when the debt is due there will be as much owing the 
 "United States for interest paid as for principal. There will 
 then become due from this company, in less than twenty years 
 from this date, in the neighborhood of eighty millions of dol- 
 lars, secured by the first and subsidy mortgages. In addition 
 to this are the cspital stock, representing 130,000,000 more, 
 and the funded debt, inferior in its lien to that of the subsidy 
 bonds. All these different classes of securities have become 
 favorites in the market for investments, and they are widely 
 scattered at home and abroad. They have taken to a certain 
 extent the place of the public funds as investments. With the 
 exception of the land grant, which is first devoted to the pay- 
 ment of the land grant bonds, but little, if anything, except the 
 earnings of the company can be depended on to meet these 
 obligations when they mature. The company has been in the 
 receipt of large earnings since the completion of its road, and 
 after paying the interest on its own bonds at maturity, has 
 been dividing the remainder, or a very considerable portion of 
 it, from time to time among its stockholders, without laying by 
 anything to meet the enormous debt which, considering the 
 amount, is so soon to become due. It is easy to see that in 
 this way the stockholders of the present time are receiving in 
 
47 
 
 the shape of dividends that which those of the future may be 
 compelled to lo$e. It is hardly to be presumed that this great 
 weight of pecuniary obligation can be removed without inter- 
 fering with dividends hereafter, unless at once some prepara- 
 tion is made by sinking fund or otherwise to prevent it. Un- 
 der these circumstances the stockholders of to-day have no 
 property right to dividends which shall absorb all the net 
 earnings after paying debts already due. The current earn- 
 ings belong to the corporation, and the stockholders, as such, 
 have no right to them as against the just demands of creditors. 
 
 The United States occupy towards this corporation a two- 
 fold relation that of sovereign and that of creditor. (U. S. vs. 
 U. P. K U., 98 U. S., 613.) Their rights as sovereign are not 
 crippled because they are creditors, and their privileges as 
 creditors are not enlarged by the charter because of their sov- 
 ereignty. They cannot as creditors demand payment of what 
 is due them before the time limited by the contract. Neither 
 can they as sovereign or creditors require the company to pay 
 the other debts it owes before they mature. But out of re- 
 gard to the rights of the subsequent lienholders and stock- 
 holders, it is not only their right, but their duty, as sovereign, 
 to see to it that the current stockholders do not, in the admin- 
 istration of the affairs of the corporation, appropriate to their 
 own use that which in equity belongs to others. A legislative 
 regulation which does no more than require them to submit to 
 their just contribution towards the payment of a bonded debt 
 cannot in any sense be said to deprive them of their property 
 without due process of law. 
 
 The question still remains whether the particular provision 
 of this statute now under consideration comes within this rule. 
 It establishes a sinking fund for the payment of debts when 
 they mature, but does not pay the debts. The original con- 
 tracts of loan are not changed. They remain as they were 
 before and are only to be met at maturity. All that has been 
 done is to make it the duty of the company to lay by a portion 
 of its current net income to meet its debts when they do fall 
 due. In this way the current stockholders are prevented to 
 some extent from depleting the treasury for their own benefit 
 at the expense of those who are to come after them. This is 
 
48 
 
 no more for the benefit of the creditors than it is for the cor- 
 poration itself. It tends to give permanency to the value of 
 the stock and bonds, and is in the direct interest of a faithful 
 administration of affairs. It simply compels the managers for 
 the time being to do what they ought to do voluntarily. The 
 fund to be created is not so much for the security of the credi- 
 tors as the ultimate protection of the public and the corpora- 
 tors. 
 
 To our minds it is a matter of no consequence that the Sec- 
 retary of the Treasury is made the sinking-fund agent and the 
 treasury of the United States the depository, or that the in- 
 vestment is to be made in the public funds of the United States. 
 This does not make the deposit a payment of the debt due the 
 United States. The duty of the manager of every sinking fund 
 is to seek some safe investment for the moneys as they accu- 
 mulate in his hands, so that when required they may be 
 promptly available. Certainly no objection can be made to 
 the security of this investment. In fact we do not understand 
 that complaint is made in this particular. The objection is to 
 the creation of the fund and not to the investment, if that in- 
 vestment is not in law a payment. 
 
 Neither is it a fatal objection that the half of the earnings for 
 services rendered the govern meht, which, by the act of 1864 r 
 was to be paid to the companies, is put into this fund. The 
 government is not released from the payment. While the 
 money is retained, it is only that it may' be put into the fund, 
 which, although kept in the treasury, is owned by the com- 
 pany. When the debts are paid, the securities into which the 
 moneys have been converted that remain undisposed of must 
 be handed over to the corporation. Under the circumstances, 
 the retaining of the money in the treasury as part of the sink- 
 ing fund is in law a payment to the company. 
 
 Not to pursue this branch of the inquiry any further, it is 
 sufficient now to say that we think the legislation complained 
 of may be sustained on the ground that it is a reasonable regu- 
 lation of the administration of the affairs of the corporation, 
 and promotive of the interests of the public and the corpora- 
 tors. It takes nothing from the corporation or the stockhold- 
 ers which actually belongs to them. It oppresses no one, and 
 inflicts no wrong. It simply gives further assurance of the 
 
40 
 
 continued solvency and prosperity of a corporation in which 
 the public are so largely interested, and adds another guaranty 
 to the permanent and lasting value o its vast amount of se- 
 curities. 
 
 The legislation is also warranted under the authority by way 
 of amendment to change or modify the rights, privileges, and 
 immunities granted by the charter. The right of the stock- 
 holders to a division of the earnings of the corporation is a 
 privilege derived from the charter. When the charter and its 
 amendments first became laws, and the work on the road was 
 undertaken, it was by no means sure that the enterprise would 
 prove a financial success. No statutory restraint was then put 
 upon the power of declaring dividends. It was not certain 
 that the stock would ever find a place on the list of marketable 
 securities, or that there would be any bonds subsequent in lien 
 to that of the United States which could need legislative or 
 other protection. Hence, all this was left unprovided for in 
 the charter and its amendments as originally granted, and the 
 reservation of the power of amendment inserted so as to enable 
 the government to accommodate its legislation to the require- 
 ments of the public and the corporation as they should be de- 
 veloped in the future. Now it is known that the stock of the 
 company has found its way to the markets of the world ; that 
 large issues of bonds have been made beyond what was origi- 
 nally contemplated, and that the company has gone on for years 
 dividing its earnings without any regard to its increasing debt, 
 or to the protection of those whose rights may be endangered 
 if this practice is permitted to continue. For this reason Con- 
 gress has interfered, and, under its reserved power, limited the 
 privilege of declaring dividends on current earnings, so as to 
 confine the stockholders to what is left after suitable provision 
 has been made for the protection of creditors and stockholders 
 against the disastrous consequences of a constantly increasing 
 debt. As this increase cannot be kept down by payment un- 
 less voluntarily made by the corporation, the next best thing 
 has been done, that is to say, a fund safely invested, which in- 
 creases as the debt increases, has been established and set 
 apart to meet the debt when the time comes that payment can 
 be required. 
 
 Judgment affirmed. 
 4 
 
50 
 
 CASE OF THE CENTRAL PACIFIC R. R. CO. 
 
 MB. CHIEF JUSTICE WAITE DELIVERED THE OPINION OF THE 
 
 COURT. 
 
 The only material difference between this case and that of 
 the Union Pacific Company arising under the act of May 7, 
 1878, lies in the fact that in this the special franchises, as well 
 as the land and subsidy bonds, were granted by the United 
 States to a corporation formed and organized under the laws 
 of the State of California, while in that Congress created the 
 corporation to which the grants were made. The California 
 corporation was organized under a State law, with an author- 
 ized capital of eight million five hundred thousand dollars, to 
 build a road from the city of Sacramento to the eastern boun- 
 dary of the Slate, a distance of about one hundred and fifteen 
 miles. Under the operation of its California charter, it could 
 only borrow money to an amount not exceeding the capital 
 stock, and must provide a sinking fund for the ultimate re- 
 demption of the bonds. (HittelPs Cal. Laws, 1850-1864, Sec. 
 840.) No power was granted to build any road outside the 
 State, or in the State except between the termini named. By 
 the act of 1862, Congress granted this corporation the right to 
 build a road from San Francisco, or the navigable waters of 
 the Sacramento river, to the eastern boundary of the State, 
 and from there through the territories of the United States 
 until it met the road of the Union Pacific Company. For this 
 purpose all the rights, privileges, and franchises were given 
 this company that were granted the Union Pacific Company, 
 except the franchise of being a corporation, and such others as 
 were merely incident to the organization of the company. The 
 land grants and subsidy bonds to this company were the same 
 in character and quantity as those to the Union Pacific, and 
 the same right of amendment was reserved. Each of the com- 
 panies was required to file in the Department of the Interior 
 its acceptance of the conditions imposed, before it could be- 
 come entitled to the benefits conferred by the act. This was 
 
51 
 
 promptly done by the Central Pacific Company, and in this 
 way that corporation voluntarily submitted itself to such legis- 
 lative control by Congress as was reserved under the power of 
 amendment. 
 
 No objection has ever been made by the State to this action 
 by Congress. On the contrary, the State, by implication at 
 least, has given its assent to what was done, for in 1864 it 
 passed " An act to aid in carrying out the provisions of the 
 Pacific Railroad and telegraph act of Congress," and thereby 
 confirmed and vested in the company " all the rights, privi- 
 leges, franchises, power, and authority conferred upon, granted 
 to, or vested in said company by said act of Congress," and 
 repealed " all laws or parts of laws inconsistent or in conflict 
 with . * * * the rights and privileges herein (therein) 
 granted." (Hittell's Laws, sec. 4,798 ; Acts of 1863-4, 471.) 
 Inasmuch as by the constitution of California, then in force 
 (Art. IV.. sec. 31), corporations, except for municipal purposes, 
 could not be created by special act, but must be formed umler 
 general laws, the legal effect of this act is probably little more 
 than a legislative recognition by the State of what had been 
 done by the United States with one of the State corporations. 
 In so doing the State but carried out its original policy in 
 reference to the same subject-matter, for as early as May 1, 
 1852, an act was passed, reciting " that the interests of this 
 State, as well as those of the whole Union, require the imme- 
 diate action of the government of the United States for the 
 construction of a national thoroughfare connecting the navi- 
 gable waters of the Atlantic and Pacific Oceans, for the pur- 
 poses of national safety, in the event of war, and to promote 
 the highest commercial interests of the Republic," and 
 granting the right of way through the State to the 
 United States for the purpose of constructing such a road. 
 -(Hittell's Laws, sec. 4,791; Acts of 1852, 150.) lu 1859 (Acts of 
 1859, 391) a resolution was passed calling a convention " tocon- 
 sider the refusal of Congress to take efficient measures for the 
 construction of a railroad from the Atlantic States to the 
 Pacific, and to adopt measures whereby the building of said 
 railroad can be accomplished," and at the same session of 
 the Legislature a memorial was prepared asking Congress to 
 
pass a law authorizing the construction of such a road, and 
 asking also a grant of lands to aid in the construction of 
 railroads in the State. (Acts of 1859, 395.) Nothing was 
 done, however, by Congress until the rebellion, which at once 
 called the attention of all who were interested in the pre- 
 servation of the Union to the immense practical importance 
 of such a road for military purposes, and then, as soon as a 
 plan could be matured and the necessary forms of legislation 
 gone through with, the act of July 1, 18 o2, was passed. But 
 this was not enough to interest capitalists in the undertaking, 
 and although the Legislature of California during the year 
 of 1863 passed several acts intended to hold out further in- 
 ducements, but little was accomplished until the amendatory 
 act of Congress in 1864, which, besides authorizing the first 
 mortgage and changing in some important particulars the con- 
 ditions on which the subsidy bonds were to be issued, con- 
 ferred additional powers on the corporation, some of which, 
 such as the right of eminent domain in the territories, the State 
 could not grant, and others, such as the right of issuing first 
 mortgage bonds without a sinking iund, and in excess of the 
 capital stock, it had seen fit to withhold. This act also re- 
 served to Congress full power of amendment and was prompt- 
 ly accepted by the corporation. With this addition of cor- 
 porate powers and pecuniary resources the work was pushed 
 forward to a completion with unexampled energy. But for 
 the corporate powers and financial aid granted by Congress, 
 it is not probable that the road would have been built. The 
 first mortgage bonded debt was created without a sinking fund 
 and the road in the territories built under the authority of 
 Congress assented to and ratified by the State. 
 
 The Western Pacific Company, now, by consolidation, a 
 part of the Central Pacific Company, was also organized, De- 
 cember 13, 1862, (Acts of 1863, 81,) under the general railroad 
 law of California, with power to construct a road from a point 
 on the San Francisco and" San Jose Railroad, at or near San 
 Jose, to Sacramento, and there connect with the road of the 
 Central Pacific Company. Afterwards the Central Pacific 
 Company assigned to this corporation its rights, under the act 
 of Congress, to construct the road between San Jose and 
 
53 
 
 Sacramento, and this assignment-- was ratified by Congress, 
 " with all the privileges and benefits of the several acts of 
 Congress relating thereto, and subject to all the conditions 
 thereof." (13 S at., 504.) By the same act further privileges 
 were granted by the United States both to the Central Pacific 
 and Western Pacific Companies, in respect to their issue of 
 first mortgage bonds. 
 
 Under this legislation, we are of the opinion that, to the ex- 
 tent of the powers, rights, privileges and immunities granted 
 these corporations by the United States, Congress retains the 
 right of amendment, and that in this way it may regulate the 
 administration of the affairs of the company in reference to the 
 debts created under its own authority, in a manner not incon- 
 sistent with the requirements of the original State charter, as 
 modified by the State Aid Act of Ih64, accepting what had 
 been done by Congress. This is as far as it is necessary to go 
 now. It will be time enough to consider what more may be 
 done when the necessity arises. As yet, the State has not 
 attempted to interfere with the action of Congress. All com- 
 plaint thus far has co:ne from the corporation itself, which, to 
 secure the government aid, accepted all the conditions that 
 were attached to the grants, including the reservation of 
 power to amend. 
 
 It is clear that the establishing of a sinking fund by the act 
 of 1878 is not at all in conflict with anything contained in the 
 original State charter, for by that charter no such debt could 
 be created without provision for such a fund. This part of 
 the act of 1878 is, therefore, in the exact line of the policj 
 of the State, and does no more than place the company again, 
 to some extent, under obligations from which it had been re- 
 leased by Congressional legislation. So, too, the reservation 
 of the power of amendment by Congress is equally consistent 
 with the settled policy of the State ; for not only the State 
 charter, in terms, makes such a reservation in favor of the 
 State, but the constitution expressly provides that all laws for 
 the creation of corporations " may be altered from time to 
 time, or repealed." (Art. IV, sec. 31.) 
 
 It is not necessary now to inquire whether, in ascertaining 
 the net earnings of the company for the purpose of fixing the 
 
54: 
 
 amount of the annual contributions to the sinking fund, the 
 earnings of all the roads owned by the present corporation 
 are to be taken into the account, or only of those in aid of 
 which the land grants were made and the subsidy bonds is- 
 sued. The question here is only as to the power of Congress 
 to establish the fund at all. If disputes should ever arise as to 
 the manner of stating the accounts, they can be settled at 
 some future time. 
 
 All the other questions which have been argued in this case 
 were considered and decided in that of the Union Pacific 
 company in a way to sustain the decree below. 
 
 It follows that the decree of the Circuit Court must be 
 affirmed ; and it is consequently, so ordered. 
 
 These decisions depend on the construction to be given to sev- 
 eral sections of the Pacific Railroad acts. These sections are 
 as follows : 
 
 Section 1 of the Act of July 1, 1862, provides for the incor- 
 poration of the Union Pacific Railroad Company. 
 
 SEC. 2. And be it further enacted, That the right of way 
 through the public lands be, and the same is hereby, granted 
 to said company (Union Pacific) for the construction of said 
 railroad and telegraph line ; and the right, power, and author- 
 ity is hereby given to said company to take from the public 
 lands adjacent to the line of said road, earth, stone, timber, 
 and other materials for the construction thereof ; said right of 
 way is granted to said railroad to the extent of two hundred 
 feet in width on each side of said railroad where it may pass 
 over the public lands, including all necessary grounds for 
 stations, buildings, workshops, and depots, machine shops, 
 switches, side tracks, tui;n-tables and water stations. The 
 United States shall extinguish as rapidly as may be the Indian 
 titles to all lands falling under the operation of this act, and 
 required for the said right of way and grants hereinafter made. 
 12 Stats., 491. 
 
 SEC. 3. (As amended by section 4 of the Act of July 2, 1861). 
 And be it further enacted, That there be, and is hereby, granted 
 
55 
 
 to the said company (Union Pacific), for the purpose of aiding 
 in the construction of said railroad and telegraph line, and to 
 secure the safe and speedy transportation of the mails, troops, 
 munitions of war and public stores thereon, every alternate 
 section of public land, designated by odd numbers, to the 
 amount of ten alternate sections per mile, on each side of 
 said railroad on the line thereof, and within the limits of 
 twenty miles on each side of said road, not sold, re- 
 served, or otherwise disposed of by the United States, and 
 to which a pre-emption or homestead claim may not have at- 
 tached, at the time the line of sail road is definitely fixed : 
 Provided, That all mineral lands shall be excepted from the 
 operation of this act; but where the same shall contain tim- 
 ber, the timber thereon is hereby granted to said company. 
 And all such lands, so granted by this section, which shall not 
 be sold or disposed of by said company within three years 
 after the entire road shall have been completed, shall be sub- 
 ject to settlement and pre-emption, like other lands, at a piyce 
 not exceeding one dollar and twenty-five cents per acre, to be 
 paid to said company. 12 Stat., 49-i, and 13 Stats., 358. 
 
 SEC. 4. (As amended by section G, Act of 1864.) And be it 
 further enacted, That whenever said company shall have com- 
 pleted twenty consecutive miles of any portion of said railroad 
 and telegraph line, ready for the service contemplated by this 
 act, and supplied with all the necessary drains, culverts, via- 
 ducts, crossings, sidings, bridges, turnouts, watering places, 
 depots, equipments, furniture, and all other appurtenances of 
 a first-class railroad, the rails and all other iron used in the 
 construction and equipment of said road to be American 
 manufacture ot the best quality, the President of the United 
 States shall appoint three Commissioners to examine the same 
 and report to him in relation thereto ; and if it shall appear to 
 him that twenty consecutive miles of said railroad and telegraph 
 line have been completed and equipped in all respects as 
 required by this act, then, upon certificate of said Commission- 
 ers to that effect, patents shall issue conveying the right and title 
 to said lands to said company, on each side of the road as far 
 as the same is completed, to the amount aforesaid ; and pat- 
 ents shall in like manner issue as e'ich twenty miles of said 
 railroad and telegraph line are completed, upon certificate of 
 said Commissioners. Any vacancies occurring in said board 
 of Commissioners, by death, resignation, or otherwise, shall be 
 filled by the 1 resident of the United States: Provided, lr- 
 e<er, That no such Commissioners shall be appointed by the 
 President of the United States unless there shall be Presented 
 to him a statement, verified on oath by the president of said 
 
56 
 
 company, that 1 such twenty miles have been completed, in the 
 manner required by this act, and setting forth with certainty 
 the points where such ticenty miles begin and where the 
 same end ; which oath shall be taken before a judge of a court 
 of record. 
 
 SEC. 5. And fie it further enacted, That, for the purposes 
 herein mentioned, the Secretary of tli^ Treasury shall, upon 
 the certificate in writing of said Commissioners of the comple- 
 tion and equipment of forty (afterwards, by Act of ]8(i4, reduced 
 to twenty) consecutive miles of said railroad and telegraph, in 
 accordance with the provisions of this act, issue to said com- 
 pany bonds of the United States of one thousand dollars each, 
 payable in thirty years after date, bearing six per centum per 
 annum interest, (said interest payable semi-annually,) which 
 interest may be paid in the United States treasury notes or 
 any other money or currency which the United States have or 
 shall declare lawful money and a legal tender, to the amount 
 of sixteen of said bunds per mile tor such section of forty 
 (twenty) miles ; and to secure the repayment to the United 
 States, as hereinafter provided of the amount of said bonds 
 so issued and delivered to said company, together with all in- 
 terest thereon which shall have been paid by the United States, 
 the issue of said Lionels and delivery to the compauy shall ipso 
 facto constitute a first moitgage on the whole line of the rail- 
 road and telegraph, together with the rolling-stock, fixtures 
 and property of every kind and description, and in considera- 
 tion of which eaid bonds may be issued ; and on the refusal or 
 failure of the said company to redeem said bonds, or any part 
 of them, when required so to do by the Secretary of the Trea- 
 sury, in accordance with the provisions of this act, the said 
 road, with all the rights, functions, immunities and appurte- 
 nances thereunto belonging, and also all lands granted to the 
 said company by the United States, which, at the time of said 
 default, shall remain in the ownership of the said company, 
 may be taken possession of by the Secretary of the Treasury 
 for the use and benefit of the United States ; Provided, This 
 section shall not apply to that part of any road now con- 
 structed. 
 
 SEC. 6. And be it further enacted, That the grants aforesaid 
 are made upon condition that the said company (Union Pa- 
 cific) shall pay said bonds at maturity, and shall keep said rail- 
 road and telegraph line in repair and use, and shall at all 
 times transmit dispatches over said telegraph line, and trans- 
 port mails, troops and munitions of war, supplies and public 
 stores upon said railroad for the Government, whenever re- 
 quired to do so by any department thereof, and that the Gov- 
 
57 
 
 ernment shall at all times have the preference in the use of 
 the same tor all the purposes aforesaid (at fair and reasonable 
 rates of compensation, not to exceed the amounts paid by pri- 
 vate parties lor the same kind of service) ; and all (by &ct of 
 1804 reduced to half) compensation for services rendered for 
 the Government shall be applied to the payment of said bonds 
 and interest until the Avhole amount is fully paid. Said com- 
 pany may also pay the United States, wholly or in part, in the 
 same or other bonds, treasury notes or other evidences of debt 
 against the United States, to be allowed at par ; and after said 
 road is completed, until said bonds and interest are paid, at 
 least five per centum of the net earnings of said road shall 
 also be annually applied to the payment thereof. 
 
 SEC. 0. And lc it further enacted, That * * * the Cen- 
 tral Pacific Kailroad Company of California, a corporation ex- 
 isting under the laws of the State of California, are hereby 
 authorized to construct a railroad and telegraph line from the 
 Pacific coast, at or near San Francisco, or the navigable waters 
 of the Sacramento river, to the eastern boundary of California, 
 upon the same terms and conditions, in all respects, as are 
 contained in this act for the construction of said railroad and 
 telegraph line first mentioned, and to meet and connect with 
 the first-mentioned railroad and telegraph line on the eastern 
 boundary of California. Each of said companies shall tile 
 their acceptance of the conditions of this act in the Depart- 
 ment of the Interior within six months after the passage of 
 this act. 
 
 SEC. 10. And be it further <nacted, That * * * the Cen- 
 tral Pacific Railroad Company of California, after completing 
 its road across said State, is authorized to continue th<> con- 
 struction of said railroad and telegraph through the territories 
 of the United States to the Missouri river, including the branch 
 roads specified in this act, upon the routes hereinbefore and 
 hereinafter indicated, on the terms and conditions provided in 
 this act in relation to the said Union Pacific Railroad Com- 
 pany, until said road shall meet and connect, and the whole 
 line of said railroad and branches and telegraph is completed. 
 
 SEC. 11. And be it f ml her ena^ltd, That for three hundred 
 miles of said road most mountainous and difficult of construc- 
 tion, to wit, one hundred and fifty miles westwardly from the 
 eastern base of the Rocky Mountains, and one hundred and 
 fifty miles eastwardly from the western base of the Sierra Ne- 
 vada Mountains, said points to be fixed by the President of 
 the United States, the bonds to be issued in the construction 
 thereof shall be treble the number per mile hereinbefore pro- 
 vided ; and the same shall be issued, and the lands herein 
 
58 
 
 granted be set apart, upon the construction of every twenty 
 miles thereof, upon the certificate of the Commissioners as 
 aforesaid that twenty consecutive miles of the same are com- 
 pleted ; and between the sections last named of one hundred 
 and filty miles each, the bonds to be issued to aid in the con- 
 struction thereof shall be double the number per mile first 
 mentioned, and the same shall be issued, and the lands herein 
 granted be set apart, upon the construction of every twenty 
 miles thereof, upon the certificate of the Commissioners as 
 aforesaid that twenty consecutive miles of the same are com- 
 pleted : Provided, That no more than fifty thousand of said 
 bonds shall be issued under this act to aid in constructing the 
 main line of said railroad and telegraph. 
 
 SEC. 17. And he it further enacted, That in case said company 
 or companies shall fail to comply with the terms and condi- 
 tions of this act by not completing said road and telegraph and 
 branches within a reasonable time, or by not keeping the same 
 in repair and use, but shall permit the same for an unreason- 
 able time to remain unfinished or out of repair and unfit for 
 use, Congress may pass any act to insure the speedy comple- 
 tion of said road and branches, or put the same in repair and 
 use, and may direct the income of said railroad and telegraph 
 line to be thereafter devoted to the use of the United States, 
 to repay all such expenditures caused by the default and neg- 
 lect of such company or companies : Provided, That if said roads 
 are not completed so as to form a continuous line of railroad, 
 ready for use, from the Missouri river to the navigable waters 
 of the Sacramento river, in California, by the first day of July, 
 eighteen hundred and seventy-six,thewhole of all of saidrailro ids. 
 before mentioned and to be constructed under the provisions 
 of this act, together with all their furniture, fixtures, rolling- 
 stock, machine-shops, lands, tenements and hereditaments, 
 and property of every kind and character, shall be forfeited to 
 ami be taken possession of by the United States. 
 
 SEC. 18. And be it further enacted, That whenever it appears 
 that the net earnings of the entire road and telegraph, includ- 
 ing the amount allowed for services rendered for the United 
 States, after deducting all expenditures, including repairs and 
 the furnishing, running and managing of said road, shall ex- 
 ceed ten per centum upon .its cost, (exclusive of the five per 
 centum to be paid to the United States,) Congress may reduce 
 the rates of fares thereon, if unreasonable in amount, and may 
 fix and establish the same by law. And the better to accom- 
 plish the object of this act, namely, to promote the public in- 
 terest and welfare by the construction of said railroad and 
 telegraph line, and keeping the same in working order, and to 
 
59 
 
 secure to the Government at all times (but particularly in time 
 of war) the use and benefits of the same for postal, military 
 and other purposes, Congress may at any time, having due re- 
 gard for the rights of said companies named herein, add to, 
 alter, amend or repeal this act. (12 Stats., p. 492.) 
 
 Sections of the Act of 1864. 
 
 SEC. 5. And be it further enacted, That * * * , and that only 
 one-half of the compensation for 'services rendered for the 
 Government by said companies shall be required to be applied 
 to the payment of the bonds issued by the Government in aid 
 of the construction of said roads. 
 
 SEC. 10. And lie it further enacted, That section five of said 
 act (Act of July 1, 1862) be so modified and amended that the 
 Union Pacific Railroad Company, and Central Pacific Railroad 
 Company and any other company authorized to participate in 
 the construction of said road, may, on the completion of each 
 section of said road, as provided in this act and the act to 
 which this act is an amendment, issue their first-mortgage 
 bonds on their respective railroads and telegraph lines to an 
 amount not exceeding the amount of the bonds of the United 
 States, and of even tenor and date, time of maturity, rate and 
 character of interest, with the bonds authorized to be issued to 
 said railroad companies respectively. And the lien of the 
 United States bonds shall be subordinate to that of the bonds 
 of any or either of said companies hereby authorized to be 
 issued on their respective roads, property and equipments, ex- 
 cept as to the provisions of the sixth section of the act to 
 which this act is an amendment, relating to the transmission 
 of dispatches and the transportation of mails, troops, muni- 
 tions of war, supplies and public stores for the Government of 
 the United States. * * * 
 
 SEC. 22. And be it further enacted, That Congress may at any 
 time alter, amend or repeal this act, (13 Stats., 
 
 The Thurman Bill or Sinking Fund Act, is as follows : 
 AN ACT to alter and amend the act entitled " An act to aid in 
 the construction of a railroad and telegraph line from the 
 Missouri river to the Pacific ocean, and to secure to the 
 Government the use of the same for postal, military, and 
 other purposes," approved July first, eighteen hundred 
 
60 
 
 nnd sixty-two, and also to alter and'amend the act of Con- 
 gress approved July second, eighteen hundred and sixty- 
 four, in amendment of said first-named act. 
 
 Whereas, on the first day of July, anno Domini eighteen 
 hundred and sixty-two, Congress passed an act entitled "An 
 act to aid in the construction of a railroad and telegraph line 
 from the Missouri riv'er to the Pacific ocean, and to secure to 
 the Government the use of the same for postal, military, and 
 other purposes ;" and 
 
 Whereas, afterward, on the second day of July, anno Domini 
 eighteen hundred and sixty-four, Congress passed an act in 
 amendment of said first-mentioned act ; and 
 
 Whereas, the Union Pacific Railroad Company, named in 
 said acts, and under the authority thereof, undertook to con- 
 struct a railway, alter the passage thereof, over some part of 
 the line mentioned in said acts ; and 
 
 Whereas, under the authority of the said two acts, the Cen- 
 tral Pacific Railroad Company of California, a corporation ex- 
 isting under the laws of the State of California, undertook to 
 construct a railway, after the passage of said acts, over some 
 part of the line mentioned in said acts ; and 
 
 Whereas, the United States, upon demand of said Central 
 Pacific Railroad Company, have heretofore issued, by way of 
 loan and as provided :n said acts, to an- 1 lor the benetit of said 
 companv, in aid of the purposes named in. said acts, the bonds 
 of the United States, payable in thirty years from the date 
 thereof, with interest at six per centum per annum, payable 
 half yearly, to the amount of twenty-five million eight hundred 
 and eighty-five thousand one hundred and twenty dollars, 
 which said bonds have been sold in the market or otherwise 
 disposed of by said company ; and 
 
 Whereas, the said Central Pacific Company has issued and 
 disposed of an amount of its own bonds equal to the amount 
 so issued bv the United States, and secured the same by mort- 
 gage, and which are, if law ully issued and disposed of, a prior 
 and paramount lien, in the respect mentioned in said acts, to 
 that of the United States, as stated, and secured thereby ; and 
 
 Whereas, after the passage of said acts, the Western Pacific 
 Railroad Company, a corporation then existing under the laws 
 of California, did, under the authority of Congress, become 
 the assignee of the rights, duties, and obligations of the said 
 Central Pacific Railroad Company, as provided in the act ot 
 Congress passed on the third of March, anno Domini eighteen 
 
Cl 
 
 hundred and sixty-five, and did, under (he authority of the said 
 act and of the acts aforesaid, construct a railroad from the city 
 of San Jose to the city of Sacramento, in California, and did 
 demand and receive from the United States the sum of one 
 million nine hundred and seventy thousand five hundred and 
 sixty dollars of the bonds of the United States, of the descrip- 
 tion before mentioned as issued to the Central Pacific Com- 
 pany, and in the same manner and under the provisions of 
 said acts ; and upon and in respect of the bonds so issued to 
 both said companies, the United States have paid interest to 
 the sum of more than thirteen and a half million dollars, which 
 has not been reimbursed ; and 
 
 Whereas, said Western Pacific Railroad Company has issued 
 and disposed of an amount of its own bonds equal to the 
 amount so issued by the United States to it, and secured the 
 same by mortgage, which are, if lawfully issued and disposed 
 of, a prior and paramount lien to that of the United States, as 
 stated, and secured thereby ; and 
 
 Whereas, said Western Pacific Railroad Company has since 
 become merged in, and consolidated with, said Central Pacific 
 Railroad Company, under the name of the Central Pacific 
 Railroad Company, whereby the Central Pacific Railroad 
 Company has become liable to all the burdens, duties, and 
 obligations before resting upon said Western Paci6c Railroad 
 Company ; and divers other railroad companies have been 
 merged in and consolidated with said Central Pacific Railroad 
 Company ; and 
 
 Whereas, the United States, upon the demand of the said 
 Union Pacific Railroad Company, have heretofore issued, by 
 way of loan to it, and as provided in said acts, the bonds of 
 the United States, payable in thirty years from the date there- 
 of, with interest at six per centum per annum, payable half- 
 yearly, the principal sums of which amount to twenty-seven 
 million two hundred and thirty-six thousand five hundred and 
 twelve dollars ; on which the United States have paid over ten 
 million dollars interest over and above all reimbursements ; 
 which said bonds have been sold in the market or otherwise 
 disposed of by said corporation ; and 
 
 Whereas, said corporation has issued and disposed of an 
 amount of its own bonds equal to the amounts so issued to it 
 by the United States as aforesaid, and secured the same by 
 mortgage, and which are, if lawfully issued and disposed of, a 
 prior arid paramount lien, in the respect mentioned in said 
 acts, to that of the United States, as stated, and secured there- 
 by ; and 
 
62 
 
 Whereas, the total liabilities (exclusive of interest to accrue), 
 to all creditors, including the United States, of the said Cen- 
 tral Pacific Company, amount in the aggregate to more than 
 ninety-six million dollars, and those of the said Union Pacific 
 Railroad Company to more than eighty-eight million dollars ; 
 and 
 
 Whereas, the United States, in view of the indebtedness 
 and operations of said several railroad companies respectively, 
 and of the disposition of their respective incomes, are not and 
 cannot, without further legislation, be secure in their interests 
 in and concerning said respective railroads and corporations, 
 either as mentioned in said acts or otherwise ; and 
 
 Whereas, a due regard to the rights of said several com- 
 panies respectively, as mentioned in said act of eighteen hun- 
 dred and sixty-two, as well as just security to tae United 
 States in the premises, and in respect of all the matters 
 set forth in said a:t, require that the said act of eighteen hun- 
 dred and sixty-two be altered and amended as hereinafter en- 
 acted ; and 
 
 Whereas, by reason of the premises also, as well as for other 
 causes of public good and justice, the powers provided and re- 
 served in said act of eighteen hundred and sixty- four for the 
 amendment and alteration thereof, ought also to be exercised 
 as hereinafter enacted : Therefore, 
 
 Be it enacted by tie Senate and House of Representatives of the 
 Uni'ed Slates of America in Congress assemblfd, That the net 
 earnings mentioned in said act of eighteen hundred and sixty- 
 two of said railroad companies respectively, shall be ascer- 
 tained by deducting from the gross amount of their earnings re- 
 spectively the necessary expenses actually paid within the year in 
 operating the same and keeping the same in a state of repair, 
 and also the sum paid by them respectively within the year in 
 discharge of interest on their first mortgage bonds, whose lien 
 has priority over the lien of the United States, and excluding 
 from consideration all sums owing or paid by said companies 
 respectively for interest upon any other portion of their in- 
 debtedness ; and the foregoing provision shall be deemed and 
 taken as an amendment of said act of eighteen hundred and 
 sixty-four, as well as of said act f eighteen hundred and sixty- 
 two. This section shall take '.effect on the thirtieth day of 
 June next, and be applicable to all computations of net earn- 
 ings thereafter ; but it shall not affect any right of the United 
 States or of either of said railroad companies existing prior 
 hereto. 
 
 SEC. 2. That the whole amount of compensation which may, 
 from time to time, be due to said several railroad companies 
 
68 
 
 respectively for services rendered for the Government shall be 
 retained by the United States, one-half thereof to be pres- 
 ently applied to the liquidation of the interest paid and to be 
 paid by the United States upon the bonds so issued by it 
 as aforesaid, to each of said corporations severally, and the 
 other half thereof to be turned into the sinking fund herein- 
 after provided, lor the uses therein mentioned. 
 
 SEC. 8, Tnat there shall be established in the Treasury of 
 the United States a sinking fund, which shall be invested by 
 the Secretary of the Treasury in bonds of the United States ; 
 and the semi-annual income thereof shall be in like manner 
 from time to time invested, and the same shall accumulate and 
 "be disposed of as hereinafter mentioned. And in making such 
 investments the Secretary shall prefer the five per centum 
 bonds of the United States, unless, for good reasons appear- 
 ing to him, and which he shall report to Congress, he shall at 
 any time deem it advisable to invest in other bonds of the 
 United States. All the bonds belonging to said fund shall, as 
 last as they shall be obtained, be so stamped as to show that 
 they belong to said fund, and that they are not good in the 
 hands of other holders than the Secretary of the Treasury 
 until they shall have been indorsed by him, and publicly dis- 
 posed of pursuant to this act. 
 
 SEC. 4. That there shall be carried to the credit of the said 
 fund, on the first day of February in each year, the one-half 
 of the compensation for services hereinbefore named, rendered 
 for the Government by said Central Pacific Railroad Com- 
 pany, not applied in liquidation of interest ; and, in addition 
 thereto, the said company shall, on said day in each year, pay 
 into the treasury, to the credit of said sinking fund, the sum 
 of one million two hundred thousand dollars, or so much 
 thereof as shall be necessary to make the five per centum of 
 the.net earnings of, its said road payable to the United States 
 under said act of eighteen hundred and sixty- two, and the 
 whole sum earned by it as compensation for services rendered 
 for the United States, together with the sum by this section 
 required to be paid, amount in the aggregate to twenty-five per 
 centum of the whole net earnings ot said railroad company, 
 ascertained and defined as hereinbefore provided, for the year 
 ending on the thirty-first day of December next preceding. 
 That there shall be carried to the credit of the said fund, on 
 the first day of February in each year, the one half of the 
 compensation for services hereinbefore amed, rendered for the 
 Government by said Union Pacific Railroad Company, not 
 applied in liquidation of interest ; and, in addition thereto, 
 the said company shall, on said day in each year, pay into 
 
64 
 
 the treasury, to the credit of said sinking fund, tin-; sum of 
 eight hundred and fifty thousand dollars, or so much 
 thereof as shall be necessary to make the five per centum of 
 the net earnings of its said road payable to the United States 
 under said act of eighteen hundred and sixty-two, and the 
 whole sum earned by it as compensation for services ren- 
 dered for the United States, together with the sum by this 
 section required to be paid, amount in the aggregate to twenty- 
 five per centum of the whole net earnings qf said railroad 
 company, ascertained and defined as hereinbefore provided,, 
 for the year ending on the thirty-fiist day of December next 
 preceding. 
 
 SEC. 5. That whenever it shall be made satisfactorily to ap- 
 pear to the Secretary of the Treasury, by either of said 
 companies, that seventy-five per centum of its net earnings as 
 hereinbefore denned, for any current year are or were insuffi- 
 cient to pay the interest for such year upon the obligations of 
 such company, in respect of which obligations there may ex- 
 ist a lien paramount to that of the United States, and that 
 such interest has been paid out of such net earnings, said Sec- 
 retary is hereby authorized, and it is made his duty, to remit 
 for such current year so much of the twenty-five per centum 
 of net earnings required to be paid into the sinking fund, as- 
 aforesaid, as may have been thus applied and used in the pay- 
 ment of interest as aforesaid. 
 
 SEC. 6. That no dividend shall be voted, made, or paid for 
 or to any stockholder or stockholders in either of said com- 
 panies respectively at any time when the said company shall 
 be in default in respect of the payment either of the sums re- 
 quired as aforesaid to be paid into said sinking fund, or iu re- 
 spect of the payment of the said five per centum of the net 
 earnings, or in respect of interest upon any debt the lien of 
 which, or of the debt on which it may accrue, is paramount to 
 that of the United States ; and any officer or person who shall 
 vote, declare, make, or pay, and any stockholder of any of 
 said companies who shall receive any such dividend contrary 
 to the provisions of this act, shall be liable to the United 
 States for the amount thereof, which when recovered, shall be 
 paid into the sinking fund. And every such officer, person, or 
 stockholder who shall knowingly vote, declare, make, or pay 
 any such dividend contrary to the provisions of this act, shall 
 be deemed guilty of a misdemeanor, and, on conviction thereof, 
 shall be punished by a fine not exceeding ten thousand dol- 
 lars and by imprisonment not exceeding one year. 
 
 SEC. 7. That the said sinking fund so established and ac- 
 cumulated shall, at the maturity of said bonds so respectively 
 
65 
 
 issued by the United States, be applied to the payment and 
 satisfaction thereof, according to the interest and proportion 
 of each of said companies in said fund, and of all interest paid 
 by the United States thereon, and not reimbursed, subject to 
 the provisions of the next section. 
 
 SEC. 8. That said sinking fund so established and accumu- 
 lated shall, according to the interest and proportion of said 
 companies respectively therein, be held for the protection, se- 
 curity, and benefit of the lawful and just holders of any 
 mortgage or lien debts of such companies respectively, law- 
 fully paramount to the rights of the United States, and for 
 the claims of other creditors, if any, lawfully chargeable upon 
 the funds so required to be paid into said sinking fund, accord- 
 ing to their respective lawful priorities, as well as for the 
 United States, according to the principles of equity, to the 
 end that all persons having any claim upon said sinking fund 
 may be entitled thereto in due order ; but the provisions of 
 this section shall not operate or be held to impair any existing 
 legal right, except in the manner in this act provided, of any 
 mortgage, lien, or other creditor of any of said companies re- 
 spectively, nor to excuse any of said companies respectively 
 from the duty of discharging, out of the other funds, its debts 
 to any creditor except the United States. 
 
 SEC. 9. That all sums due to the United States from any of 
 said companies respectively, whether payable presently or not, 
 and all sums required to be paid to the United States or into 
 the treasury, or into said sinking fund under this act, or un- 
 der the acts hereinbefore referred to, or otherwise, are hereby 
 declared to be a lien upon all the property, estate, rights, and 
 franchises of every description granted or conveyed by the 
 United States to any of said companies respectively or jointly, 
 and also upon all the estate and property, real, personal, and 
 mixed, assets, and incomes of the said several railroad com- 
 panies respectively, from whatever source derived, subject to 
 any lawfully prior and paramount mortgage, lien or claim 
 thereon. But this section shall not be construed to prevent 
 said companies respectively from using and disposing of any 
 of their property or assets in the ordinary, proper and lawful 
 course of their current business, in good faith and for valuable 
 consideration. 
 
 SEC. 10. That it is hereby made the dutypf the Attorney- 
 General of the United States to enforce, by proper proceeding 
 against the said several railroad companies respectively or 
 jointly, or against either of them, and others, all the rights of 
 the United States under this act and under the acts herein- 
 before mentioned, and under any other act of Congress or. 
 
 >T OF THR 
 
 r TTTT TTTWT5 CT !*!*! 
 
66 
 
 right of the United States ; and in any suit or proceeding al- 
 ready commenced, or that may be hereafter commenced, 
 against any of said companies, either alone or with otlxer par- 
 ties, in respect of matters arising under this act, or under the 
 acts or i ights hereinbefore mentioned or referred to, it shall be 
 the duty of tho court to determine the very right of the mat- 
 ter without regard to matters of form, joinder of parties, mul- 
 tifariousness, or other matters not affecting the substantial 
 rights and duties aiising out of the matters and acts herein- 
 before stated and referred to. 
 
 SEC. 11. That if either of said railroad companies shall fail 
 to perform all and singular the requirements of this act and 
 of the acts hereinbefore mentioned, and of any other act re- 
 lating to said company, to be by it performed, for the period 
 of six 'months next after such performance may be due, such 
 failure shall operate as a forfeiture of all the rights, privileges, 
 grants, and franchises derived or obtained by it from the 
 United States ; and it shall be the duty of the Attorney-Gen- 
 eral to cause such forfeiture to be judicially enforced. 
 
 SEC. 12. That nothing in this act shall be construed or taken 
 in any wise to affect or impair the right of Congress at any 
 time hereafter further to alter, amend, or repeal the said acts 
 hereinbefore mentioned ; and this act shall be subject to 
 alteration, amendment, or repeal, as in the opinion of 
 Congress, justice or the public welfare may require. 
 And nothing herein contained shall be held to deny, 
 exclude, or impair any right or remedy in the premises now 
 existing in favor of the United States. 
 
 SEC. 1& That each and every of the provisions in this act 
 contained shall severally and respectively be deemed taken, 
 and held as in alteration and amendment of said act of eighteen 
 hundred and sixty-two and of said act of eighteen hundred 
 sixty-four respectively, and of both said acts. 
 
 Approved May 7, 18 1 8. 
 
STATE TAXATION 
 
 AS 
 
 AFFECTED BY PROVISIONS 
 
 OF THE 
 
 FOURTEENTH AMENDMENT 
 
 TO THE 
 
 CONSTITUTION. 
 
THE BAILROAD TAI CASE 
 
 COUNTY OF SAN MATEO 
 
 SOUTHERN PACIFIC RAILROAD CO. 
 
 OF 
 
 JUSTICE FIELD AND JUDGE SAWYER, 
 
 DELIVERED IN THE 
 
 U. S. CIRCUIT COURT AT SA FRANCISCO, 
 
 SEPTEMBER 25m, 1882. 
 
 [PRINTED FROM A REVISED AND OFFICIAL COPT.] 
 
THE RAILROAD TAX CASE. 
 
 U. S. Circuit Court, Ninth Circuit, District of California. 
 
 COUNTY OF SAN MATEO 
 
 vs. 
 SOUTHERN PACIFIC RAILROAD COMPANY. 
 
 1. The Fourteenth Amendment of the Constitution, in declaring that 
 no State shall deny to any person within its jurisdiction the u equal protec- 
 tion of the laws,'' imposes a limitation upon the exercise of all the powers 
 of the State, which can touch the individual or his property, including 
 among them that of taxation. 
 
 2. The " equal protection of the laws " to any one implies not only that 
 he has a right to resort, on the same terms with others, to the courts of 
 the country for the security of his person and property, the prevention 
 and redress of wrongs, and the enforcement of contracts, but also that he 
 is exempt from any greater burdens or charges than such as are equally 
 imposed upon all others under like circumstances. This equal protection 
 forbids unequal exactions of any kind, and among them that of unequal 
 taxation. 
 
 3. Uniformity in taxation requires uniformity in the mode of assess- 
 ment as well as in the rate of percentage charged. 
 
 4. By the thirteenth article of the Constitution of California, " a mort- 
 gage, deed of trust, or other obligation by which a debt is secured, is 
 treated, for the purpose of assessment and taxation, as an interest in the 
 property affected thereby," and, " except as to railroad and other quasi 
 public corporations," the value of the property affected, less the value of 
 the security, is to be assessed and taxed to its owner, and the value of the 
 security is to be assessed and taxed to its holder. (Sec. 4.) But by the 
 same article " the franchise, road- way, ro:id-bed, rails, and rolling-stock of 
 all railroads operated in more than one county " are to be assessed at their 
 actual value, and apportioned to the counties, cities, and districts in wbich 
 the roads are located, in proportion to the number of miles of railway 
 laid therein, no deduction from this value being allowed for any mort- 
 gages on the property: HELD, That in the different modes thus pre- 
 scribed of assessing the value of the property of natural persons and the 
 
property of railroad corporations as the basis of taxation, there is a de- 
 parture from the rule of equality and uniformity. 
 
 5. Private corporations are persons, within the meaning of the first sec- 
 tion of the Fourteenth Amendment, and are en titled, so far as their prop- 
 erty is concerned, to the equal protection of the laws. 
 
 6. Neither the Constitution nor the laws of California relating to the 
 assessment of railroads operated in more than one county provide for no- 
 tice to the owner or an opportunity for him to be heard at any stage of 
 the proceeding. In this respect both conflict with the guaranty that no 
 one shall be deprived of his property without due process of law. 
 
 7. Whatever the character of the proceeding, by which one is deprived 
 of his properey, whether judicial or administrative; and whether it takes 
 the property directly, or creates a charge or liability which may be the 
 basis of taking it, the law directing the proceeding must provide for some 
 kind of notice, and offer to the owner an opportunity to be heard, or the 
 proceeding will want the essential ingredient of due process of law. 
 
 8. The provisions of Article XIII. of the Constitution of California, 
 treating of revenue and taxation, are not conditions upon the continued 
 existence of railroad corporations. 
 
 9. The State possesses no power to withdraw corporations from the 
 guaranties of the Federal Constitution. Whatever property a corporation 
 lawfully acquires is held under the same guaranties which protect the 
 property of natural persons from spoliation. 
 
 10. Under the reserved power to amend, alter, or repeal the laws under 
 which private corporations are formed, the state cannot exercise any con- 
 trol over the property of a corporation, except such as may be exercised 
 through control over its franchise, and over like property of natural per- 
 sons engaged in similar business. It cannot divest property or rights 
 which have become vested. 
 
 11. The Constitution of California (Sec. 15, Art. IV.) provides that "on 
 the final passage of all bills they shall be read at length and the votes shall 
 be by yeas, and nays upon each .bill separately, and shall be entered on 
 the journal, and no bill shall become a law without the concurrence of a 
 majority of the members elected to each house." Under this provision 
 the court, to 'inform itself, will look to the journals of the Legislature, and 
 if it appenr therefrom that the bill did not pass by the constitutional 
 majority, then it will not be regarded as a law. SAWYER, J. 
 
 12. The journals of the Legislature show that the Act of March 14th, 
 1881, mentioned in the opinion, never became a law. SAWYER, J. 
 
V 
 STATEMENT OF THE CASE. 
 
 This was an action commenced by the County of San 
 Mateo, of California, under the provisions of an Act of 
 the State of 1880 (Statutes of 1880, page 136), for the re- 
 covery of State and county taxes, claimed to be due from 
 the defendant to the plaintiff for the fiscal year 1881-'82. 
 The complaint is in the form prescribed by the statute. 
 The amended answer contains a general denial of every 
 allegation of the complaint, and sets up special matters as 
 a defence. With this general denial the Court does not 
 deal; it deals only with the special matters pleaded, it 
 having been agreed by counsel that if they constitute a 
 defence to the action judgment final shall be entered for 
 the defendant, otherwise for the plaintiff. 
 
 The material averments of the answer in this respect are, 
 that the defendant is a corporation existing under the laws 
 of the United States and of the State of California, having 
 its principal place of business in the city and county of 
 San Francisco; that it was organized in the year 1878 un- 
 der an Act of the Legislature of the State, entitled u An 
 act to provide for the incorporation of railroad companies, 
 the management of the affairs thereof, and other matters 
 relating thereto," approved May 30th, 1861;. that the term 
 of its existence was to be fifty years from the date of its or- 
 ganization; that it is still in existence under said laws, ex- 
 cept in so far as its existence and character are affected by 
 the federal enactments referred to and made part of the 
 answer; that many of its stockholders and members now 
 are and ever have been citizens of the United States, resi- 
 dents of the State of California, while many other stock- 
 
6 
 
 holders and members are citizens of the United States 
 and residents of States other than the State of California; 
 that it constructed a line of railroad known as the South- 
 ern Pacific Railroad, which commences at the city of San 
 Francisco, and extends in a southerly direction to connect 
 with the Texas and Pacific Railroad and the Atlantic and 
 Pacific Railroad, both of which are chartered by act of 
 Congress; that prior to the first day of January, 1881, it 
 was indebted to divers persons, citizens of the United 
 States, many of them citizens and residents of the State 
 of California, in large sums of money, which were ad- 
 vanced for and used in the construction and equipment of 
 the defendant's railroad; that to secure the payment of 
 such indebtedness, the company, prior to the 1st day of 
 January, 1881, executed and delivered a mortgage upon 
 its railroad, rolling-stock, appurtenances, and franchise, 
 and upon divers tracts of land belonging to it arid situated 
 in different parts of the State; that the indebtedness so se- 
 cured exceeds three thousand dollars per mile, and is still 
 subsisting, secured as aforesaid, no part thereof having 
 been paid except its accruing interest. 
 
 It is further averred that the assessment, according 
 to which the taxes claimed were levied, was made on 
 the 2d day of May, 1881, by the Board of Equalization 
 of the State of California; that the board assessed against 
 the defendant the whole of its railroad property, and 
 failed to deduct from its value the mortgage given 
 thereupon to secure said indebtedness; that the assess- 
 ment was made without notice to the defendant, and 
 that neither the Constitution nor the laws of the State 
 of California provided in respect to such assessment an 
 opportunity of time, place, or tribunal for the defendant 
 to be heard, or for any notice to the defendant before its 
 liability was fixed; that all owners of railroad property 
 situated in said State, and operated in more than one 
 county, as is the property of the defendant, are denied 
 any protection from the laws of California., which require 
 
with respect to other property that notice of its assessment 
 shall be given to the owners; which require that before its 
 liability shall he fixed an opportunity to be heard shall be 
 afforded to them; which give to them an appeal from the 
 assessor to a Board of Equalization ; which require the as- 
 sessment to be made in the counties in which the prop- 
 erty is situated, and prevent its being made in localities 
 distant from the situs of the property; and which allow 
 deductions from its valuation for indebtedness secured by 
 mortgage. 
 
 It is further averred that at and before, and ever since, 
 the adoption of the Constitution of California now in force, 
 there were and have been existing under the laws of said 
 State corporations of various kinds, formed for the purpose 
 of, and actually operating and doing business and holding 
 and using property in more than one county in the State; 
 that at all said times there were and there are now divers 
 natural persons, residents of said State, operating property 
 in more than one county; that at all of said times there 
 were and now are railroads owned by corporations formed 
 under the general laws of said State, which are operated 
 only in one county; that by the provisions of Sec. 10, Ar- 
 ticle XIII., of the State Constitution, persons operating 
 railroads in more than one county in the State have been 
 singled out from other persons operating property in more 
 than one county in the State, and denied the right com- 
 mon to all other persons to apply for relief from over- 
 valuation of their property by the assessor to local Boards 
 of Equalization, and denied the rights and privileges ac- 
 corded by law to all other persons in that respect. 
 
 It is further averred that the franchise of the defendant 
 is held and its corporate powers exercised under authority 
 of the Government of the United States; that by the sev- 
 eral acts of Congress set out in the answer the defendant 
 was selected by the Government of the United States as a 
 means and instrument of that government to construct the 
 
8 
 
 railroad in question, and to keep and maintain the same 
 in repair, to the end that the Government of the United 
 States might, when occasion required, use the same for the 
 transportation of its armies, military stores, and mails, and 
 for such other purposes as said government in the exercise 
 of its powers might desire to use the same; that the Gov- 
 ernment of the United States has never given to the State 
 of California the right to lay any tax on the franchise, ex- 
 istence, or operation of defendant; that such a tax would 
 hinder and impede the lawful operations of the Govern- 
 ment of the United States, arid would hinder, delay, and 
 prevent the defendant from performing the obligation im- 
 posed upon it hy said acts of Congress, and would wholly 
 nullify and prevent the enforcement of the same; and 
 that in the assessment which constitutes the basis of plain- 
 tiff's action, the valuation of the franchise of the defend- 
 ant its right to exist is so blended with the valuations 
 affixed to the roadway, road-bed, rails, and rolling-stock, 
 that it can neither be distinguished nor separated from 
 them. 
 
 Upon the matters thus averred, it was alleged and 
 claimed by the defendant that in the assessment of its 
 property, according to which the taxes in suit were levied, 
 an unlawful and unjust discrimination was made between 
 its property and the property of individuals to its disad- 
 vantage, in that it was not allowed any deduction from the 
 valuation of its property for the mortgage thereon, which 
 is allowed for mortgages in the assessment of property of 
 individuals; and that the company was thus subjected to 
 an unequal share of the public burdens; and that, as this 
 discrimination was made in pursuance of provisions of the 
 Constitution of the State, the company was denied the 
 equal protection of the laws guaranteed by the Fourteenth 
 Amendment of the Federal Constitution. 
 
 It was further alleged and claimed by the defendant 
 that the assessment of its property was illegal and void, 
 because made in pursuance of the provisions of the State 
 
Constitution, which gave no notice to the defendant, and 
 afforded it no opportunity to be heard respecting the value 
 of its property, or for the correction of any errors of the 
 State board, thus depriving it of its property without due 
 process of law guaranteed by that amendment. 
 
 It was also averred and claimed that the franchise of 
 the defendant was exempt from State taxation, the de- 
 fendant having been selected by the Government of the 
 United States as a means and instrument to construct the 
 road, and to keep the same in repair, for the transporta- 
 tion of the troops, military stores, and mails of the United 
 States; and for such other purposes as the government, in 
 the exercise of its powers, might desire. 
 
 The case was argued before Mr. Justice Field and Judge 
 Sawyer, the argument commencing on the 21st day of 
 August, 1882, and closing on the 29th. The opinions 
 were read in the Circuit Court on September 25, 1882. 
 
 Counsel for Plaintiff : 
 
 Hon. A. L. RHODES, 
 
 Attorney-General A. L. HART, 
 
 District Attorney TOLLES, of Marin County, and 
 
 District Attorney WARE, of Sonoma County. 
 
 Counsel for Defendant : 
 
 Mr. CREED RAYMOND, 
 Mr. J. NORTON POMEROY, 
 Mr. T. I. BERGIN, and 
 Mr. T. B. BISHOP. 
 
OPINION OF THE COURT. 
 
 By the Court, FIELD. Circuit Justice. This action is 
 brought to recover from the Southern Pacific Railroad 
 Company, a corporation formed under the laws of Cali- 
 fornia, certain State and county taxes levied upon its 
 property for the fiscal year of 1881 and 1882, alleged 
 to be due to the plaintiff, with five per cent, added for 
 their non-payment, and interest. It was commenced in 
 one of the Superior Courts of the State, and, on applica- 
 tion of the defendant, was removed to this Court. 
 
 The railroad company, besides a general denial of the 
 allegations of the complaint, sets up as a special answer 
 to the action, that in the assessment of its property, ac- 
 cording to which the taxes claimed were levied, an un- 
 lawful and unjust discrimination was made between its 
 property and the property of individuals to its disad- 
 vantage, subjecting it to an unequal share of the public 
 burdens; and that it was not afforded an opportunity of 
 being heard respecting, the assessment, and that such dis- 
 crimination was made and proceeding had under the 
 provisions of the Constitutor! of California, adopted in 
 1879, which in that respect are in conflict with the Four- 
 teenth Amendment of the Constitution of the United 
 States. 
 
 By the Constitution of California all property in the 
 State, not exempt under the laws of the United States, is, 
 with certain exceptions, to be taxed in proportion to its 
 value, to be ascertained as prescribed by law; but in the 
 ascertainment of its value as a basis for taxation, a dis- 
 
12 
 
 tinction is made between the property owned by indi- 
 viduals and that owned by railroad corporations. By the 
 thirteenth article, " a mortgage, deed of trust, contract, or 
 other obligation by which a debt is secured," is treated, for 
 the purposes of assessment and taxation, "as an interest in 
 the property affected thereby," and, " except as to railroad 
 and other quasi public corporations," the value of the 
 property affected, less the value of the security, is to be 
 assessed and taxed to its owner, and the value of the 
 security is to be assessed and taxed to its holder. (Sec. 4.) 
 But by the same article " the franchise, road-way, road- 
 bed, rails, and rolling stock of all railroads operated in 
 more than one county " are to be assessed at their actual 
 value, and apportioned to the counties, cities,, and districts 
 in which the roads are located in proportion to the num- 
 ber of miles of railway laid therein. 'No deduction from 
 this value is allowed for any mortgages on the property. 
 
 By the Constitution there is also a different system of 
 assessment provided for " the franchise, road-way, road- 
 bed, rails and rolling stock " of railroads operated in more 
 than one county from that provided for other property. 
 The assessment of other property is to be made in the 
 county, city, or district in which it is situated in the man- 
 ner prescribed by law; and the Supervisors of each county 
 constitute a Board of Equalization of the taxable property 
 of the county, and must act upon prescribed rules of 
 notice to its owners. A State Board of Equalization is 
 also created to equalize the valuation of the taxable 
 property of the several counties, so that equalit}^ may 
 be preserved between the taxpayers of the different local- 
 ities, and its action in this respect must likewise be upon 
 prescribed rules of notice,. 
 
 The assessment of the franchise, road -way, road-bed, 
 rails and rolling stock of railroads operated in more than 
 one county in the State is to be made by this State Board. 
 And in making it, the board is not required to give any 
 notice to the owners, nor is any provision made for afford- 
 
13 
 
 ing them an opportunity to be heard respecting the valu- 
 ation of their property. The tenth section of the article 
 which confers this power of assessment has been held by 
 the Supreme Court of the State to be self-executing, re- 
 quiring no legislation for its enforcement 
 
 The defendant, as already stated, is a corporation formed 
 under the laws of the State, and operates a railroad 
 through several counties. The entire length of its road 
 in the State is a little over seven hundred and eleven miles, 
 of which twenty-five miles and one-tenth of a mile pass 
 through the county of San Mateo. Its principal place of 
 business is at Sari Francisco. Its stockholders are and 
 always have been citizens of the United States, some of 
 whom are residents of this State, and some of other States. 
 Previously to January 1st, 1881, it was indebted to dif- 
 ferent citizens of the United States, many of them resi- 
 dents of this State, in large sums advanced to construct 
 and equip the road; and to secure this indebtedness, it 
 executed, prior to that date, a mortgage upon its road, its 
 franchise, and its rolling-stock and appurtenances, and 
 also upon a large number of tracts of land situated in dif- 
 ferent counties. The indebtedness secured exceeds $3,000 
 a mile of the road, no part of which., except the accruing 
 interest, has been paid ; the whole remains a valid and 
 subsisting obligation of the company. 
 
 In the fiscal year of 1881 and 1882, the State Board of 
 Equalization assessed the franchise, road-way, road-bed, 
 rails, and rolling-stock of the defendant at $11,739,915 ; 
 that is at the rate of 16,500 per mile, and apportioned to 
 the county of San Mateo, $414,150. Upon the amount 
 thus apportioned the taxes were levied, for which the 
 present action is brought. In the assessment no deduc- 
 tion was allowed for the mortgage, but the property was 
 assessed at its entire value independently of the mortgage. 
 Nor was any notice given to the company by the Board of 
 its action, nor was any opportunity allowed the company 
 to be heard respecting the assessment. These facts are 
 
14 
 
 admitted by the. demurrer, and the validity of the defence 
 rests upon the application of the law to them. 
 
 The railroad company contends that the taxes are in- 
 valid and void on two grounds: 1st, because the assess- 
 ment, according to which they were levied, was made in 
 pursuance of the discriminating provisions of the State 
 Constitution, in the enforcement of which the company 
 was not allowed any deduction from the valuation of its 
 property for the mortgage thereon, and was thus subjected 
 to an unjust proportion of the public burdens, and denied 
 the equal protection of the laws guaranteed by the Four- 
 teenth Amendment of the Federal Constitution; and, 2d, 
 because the assessment was made in pursuance of pro- 
 visions of the State Constitution, which gave no notice to 
 the company, and afforded it no opportunity to be heard 
 respecting the value of the property, or for the correction 
 of any errors of the Board, thus depriving it of its prop- 
 erty without due process of law guaranteed by that amend- 
 ment. 
 
 The plaintiff on the other hand contends: 
 
 1st. That the power of taxation possessed by the State 
 is unlimited except by the Constitution of the United 
 States, and that its exercise cannot be assailed in a Federal 
 Court either for the hardship or injustice of the tax levied; 
 
 2d. That the classification of property for taxation, and 
 the apportionment of taxes according to such classifi- 
 cation, are not forbidden by the Constitution of the United 
 States; and that within this principle the taxes on the 
 property of the railroad company were lawfully imposed; 
 
 3d. That the Fourteenth Amendment of the Constitu- 
 tion of the United States was adopted to protect the newly- 
 made citizens of the African race in their freedom, and 
 should not be extended beyond that purpose ; 
 
 4th. That corporations are not persons within the mean- 
 ing of that amendment ; 
 
 5th. That the statute fixing the sessions of the State 
 Board of Equalization and requiring a statement in writing 
 
15 
 
 from the defendant of the amount and value of its prop- 
 erty, afforded all the notice and hearing essential to the 
 validity of the assessment made; and 
 
 6th. That the provisions of Article XIII. of the Con- 
 stitution as to the taxation of railroad property are to be 
 treated as conditions upon the continued existence of rail- 
 road corporations. 
 
 We do not state the positions of the several counsel, 
 who argued the case, in their precise language, for they 
 were presented in various forms, hut we give their sub- 
 stance and purport. 
 
 The questions thus presented tor our determination are 
 of the greatest magnitude and importance. The answer 
 to them concerns not merely the railroad corporations of 
 this State, but all corporations, other than municipal, 
 within the United States. It is of the highest interest to 
 them all to know whether their property is subject to the 
 same rules of assessment and taxation to which the prop- 
 erty of individuals is subject, or whether it can be sepa- 
 rated and distinguished from that of individuals and made 
 liable to such different burdens in the way of taxation as 
 the State may choose to impose. The questions have been 
 argued with great ability and learning by distinguished 
 counsel on both sides, and they have received from the Court 
 the most patient and thoughtful examination. Indeed their 
 examination has been accompanied with a painful anxiety 
 to reach a ris-ht conclusion, aware as the Courtis of the 
 
 c3 ' 
 
 opinion prevailing throughout the community that the 
 railroad corporations of the State, by means of their great 
 wealth and the numbers in their employ, have become so 
 powerful as to be disturbing influences in the administra- 
 tion of the laws; an opinion which will be materially 
 strengthened by a decision temporarily relieving any one 
 of them from its just proportion of the public burdens. 
 That consideration, however, cannot be allowed to affect 
 tlte judgment of the Court. Whatever acts may be im- 
 puted, justly or unjustly, to the corporations, they are en- 
 
1G 
 
 titled , when they enter the tribunals of the Nation, to 
 have the same justice meted out to them, which is meted 
 out to the humblest citizen. There cannot be one law for 
 them and another law for others. 
 
 It is undoubtedly true that the power of taxation pos- 
 sessed by the State may be exercised upon any subject 
 within her jurisdiction, and to any extent, not prohib- 
 ited by the Constitution of the United States. As stated 
 by the Supreme Court, " it may touch property in every 
 shape, in its natural condition, in its manufactured form, 
 arid in its various transmutations. And the amount of 
 the taxation may be determined by the value of the prop- 
 erty, or its use, or its capacity, or its productiveness. It 
 may touch business in the almost infinite forms in which 
 it is conducted, in professions, in commerce, in manufac- 
 tures, and in transportation. Unless restrained by pro- 
 visions of the Federal Constitution, the power of the State 
 as to the mode, form, and extent of taxation is unlimited, 
 where the subjects to which it applies are within her juris- 
 diction." (State tax on Foreign-held Bonds, 15 Wall. 319.) 
 
 It is also undoubtedly true that the hardship and in- 
 justice of a tax levied by the State, considered with refer- 
 ence to its amount, are not subjects of Federal cogni- 
 zance. Wh ether a tax upon property, subject to taxation, 
 be one per cent, of its value, or ten per cent, or twenty, 
 or more, is a mere matter of State discretion ; a question 
 of policy and not of power. So we often find in the re- 
 ports language to the effect that the State's power of taxa- 
 tion is without limitation; language which may be cor- 
 rect when applied to the special facts of the cases in Avhich 
 it is used, but which should always be read with a reser- 
 vation that the exercise of the power does not conflict with 
 any of the inhibitions of the Federal Constitution. 
 
 There are in the very nature of the Federal Govern- 
 ment, and the powers with which it is clothed, many pro- 
 hibitions upon the taxing power of the States. Within 
 the sphere of its action that Government is supreme, and 
 
17 
 
 no impediment to the free and full exercise of its powers 
 is permissible. The State cannot, therefore, place an} 7 re- 
 strictions upon the agencies of the Federal Government; 
 otherwise it might embarrass and even defeat the opera- 
 tions of that Government. It was long ago said by Chief 
 Justice Marshall, that the power to tax involves the power 
 to destroy; and that there would be a manifest repugnance 
 in allowing one Government to control the constitutional 
 measures of another Government in respect to which the 
 latter is declared to be supreme. When, therefore, Con- 
 gress had created a bank of the United States as an agency 
 in the management of the finances of the Government, 
 it was held that the States were inhibited from taxing the 
 institution. "If the States," said that great Judge, " may 
 tax one instrument employed by the Government in the 
 execution of its powers, they may tax any and every 
 other instrument. They may tax the mail; they may tax 
 the mint; they may tax patent-rights; they may tax the 
 papers of the Custom House; they may tax judicial process; 
 they may tax all the means employed by the Government 
 to an excess which would defeat all the ends of Govern- 
 ment. This was not intended by the American people. 
 They did not design to make their Government dependent 
 on the States." ( Me Cullough vs. Maryland, 4 Whea., 432. ) 
 For like reasons the public securities of the United 
 States are exempt from taxation by the States, except so 
 far as such taxation is permitted by Congress. A tax im- 
 posed by the city of Charleston upon all personal estate 
 in its limits, including among other things stock of the 
 United States, was, therefore, adjudged to be invalid. The 
 Court said that the tax was upon a contract between the 
 Government and individuals, and therefore operated di- 
 rectly upon the power to borrow money on the credit of 
 the United States, that if the right to impose it existed 
 with the States, it was a right which in its nature ac- 
 knowledged no limits and might be exercised to an extent 
 which would seriously embarrass the Government. Its 
 
18 
 
 existence was, therefore, held inconsistent with the su- 
 premacy of the Government in the exercise of its granted 
 powers. ( Weston vs. Charleston, 2 Peters, 449. ) 
 
 Other illustrations might be given of implied inhibitions 
 of the Federal Constitution to taxation by the States. The 
 powers of the general Government cannot be interfered 
 with, nor their exercise embarrassed in any respect by such 
 taxation; as has often been held with reference to attempt- 
 ed taxation on goods imported, whilst retaining the char- 
 acter of imports in unbroken packages, and on goods in 
 transit from one State to another. The power to regulate 
 commerce, foreign and inter-state, cannot be thus tram- 
 melled by State action. . (Brown vs. Maryland, 12 Whea., 
 434; Weltpnvs. State of Missouri, 100 U. S. 275; Webber 
 vs. Virginia, 103 U. S. 344.) 
 
 So in regard to the express prohibitions upon the States 
 contained in the Federal Constitution; they apply equally 
 to taxation and to any other action of the State. They 
 cannot be evaded under the plea that the State possesses 
 the unrestricted power to tax. Where, for example, a 
 State has stipulated for a valid consideration to exempt 
 certain property from taxation, as it has been repeatedly 
 held that it may do, the stipulation cannot subsequently 
 be withdrawn, and the property subjected to taxation. The 
 provision which secures the inviolability of contracts against 
 State legislation stands as a perpetual interdict against the 
 imposition of the charge. It is to no purpose in such case to 
 speak of the power of taxation as an attribute of State 
 so vereignt}', which cannot be surrendered ; that sovereignty, 
 whatever its extent, must be exerted in subordination to 
 the prohibition of the Constitution, which is the supreme 
 law of the land. Many^of the attributes of sovereignty, 
 which the States would possess if independent political 
 communities, have been in like manner surrendered to 
 the Federal Government, such as the power to declare 
 war, to make peace, to enter into treaties of alliance, and 
 to regulate commerce with foreign nations. The question 
 
19 
 
 in all cases presented to a Federal Court, where complaint 
 is made of a tax levied by the States, is whether there is 
 any inhibition, express or implied, in the Constitution of 
 the United States upon the imposition of the tax. If there 
 be, it is the duty of the Court to enforce the inhibition, it 
 matters not whom its decision may affect, nor how great 
 and irresponsible the power of the State may be independ- 
 ently of such prohibition. 
 
 The Fourteenth Amendment of the Constitution, in de- 
 claring that no State shall deny to any person within its 
 jurisdiction the equal protection of the laws, imposes a 
 limitation upon the exercise of all the powers of the State, 
 which can touch the individual or his property, including 
 among them that of taxation. Whatever the State may 
 do, it cannot deprive any one within its jurisdiction of the 
 equal protection of the laws. And by equal protection of 
 the laws is meant equal security under them to every one 
 on similar terms, in his life, his liberty, his property, and 
 in the pursuit of happiness. It not only implies the right 
 of each to resort, on the same terms with others, to the 
 courts of the country for the security of his person and 
 property, the prevention and redress of wrongs and the 
 enforcement of contracts, but also his exemption from any 
 greater burdens or charges than such as are equally im- 
 posed upon all others under like circumstances. 
 
 Unequal exactions in every form, or under any pretense, 
 are absolutely forbidden; and of course unequal taxation, 
 for it is in that form that oppressive burdens are usually 
 laid. It is not possible to conceive of equal protection 
 under any system of laws, where arbitrary and unequal 
 taxation is permissible; where different persons may be 
 taxed on their property of the same kind, similarly situ- 
 ated, at different rates; where, for instance, one may be 
 taxed at one per cent, on the value of his property, an- 
 other at two or five per cent., or where one may be thus 
 taxed according to his color, because he is white, or black, 
 or brown, or yellow, or according to any other rule than 
 
20 
 
 that of a fixed rate proportionate to the value of his 
 property. 
 
 In the Constitution of several States a provision is found 
 requiring " equality and uniformity" in the taxation of 
 property, and this is held to mean that taxes must be levied 
 according to some fixed rate or rule of apportionment, so 
 that all persons shall pay the like amount upon similar 
 kinds of property of the same value. As it seemed to 
 one of the judges of the Supreme Court of Michigan: 
 "To compel individuals to contribute money or property 
 to the use of the public without reference to any common 
 ratio, and without requiring the sum paid by one piece or 
 kind of property, or by one person, to bear any relation 
 whatever to that paid by another, is to levy a forced con- 
 tribution, not a tax, duty, or impost, within the sense of 
 these terms as applied to the exercise of powers, by any en- 
 lightened or responsible government/' ( Woodbridge vs. 
 The City of Detroit, 8 Mich., 301; Burroughs on Taxation, 
 chap v.) Absolute equality and uniformity may not be 
 attainable in practice, but an approximation to them is 
 possible, and any plain departure from the rule will defeat 
 the tax. 
 
 What is called for under a constitutional provision re- 
 quiring equality and uniformity in the taxation of prop- 
 erty must be equally called for by the Fourteenth Amend- 
 ment. The forced contribution from one which would 
 follow taxation of his property without reference to a com- 
 mon ratio, would be inconsistent with that equal protec- 
 tion which the amendment requires the State to extend to 
 every person within its jurisdiction. 
 
 The application of the amendment to taxation has been 
 recognized by the legislation of Congress. Soon after the 
 adoption of the Constitutional amendment abolishing 
 slavery and involuntary servitude, measures were proposed 
 to give practical freedom to the emancipated race, which 
 resulted in the passage of the civil rights act. This act 
 gave citizenship to persons of that race, and then declared 
 
21 
 
 that citizens of the United States of every race and color, 
 without regard to any previous condition of slavery or 
 involuntary servitude, should have the same right in every 
 State and Territory to make and enforce contracts, to sue, 
 he parties, and give evidence, to inherit, purchase, lease, 
 sell, own and convey real and personal property, and to the 
 full and equal benefit of all laws and proceedings for the 
 security of person and property, as is enjoyed hy white 
 citizens, and should be subject to like punishments, pains 
 and penalties, and to none other. After the adoption of 
 the Fourteenth Amendment, Congress re-enacted this act, 
 and to the clause, that all persons within the jurisdiction 
 of the United States should enjoy the same rights as white 
 citizens and be subject only to like punishments, pains, 
 and penalties, it added, and subject only to like"taes, 
 licenses and exactions of every kind, ami to no other." (E.. S., 
 sec. 1977.) 
 
 The adjudications as to the meaning of the rule of 
 equality and uniformity to be observed in taxation, may, 
 therefore, be properly referred to in construing the re- 
 quirement of the Fourteenth Amendment when it is in- 
 voked with respect to burdens imposed by taxation. In 
 Lexinjton vs. McQillarfs Heirs, the Supreme Court of 
 Kentucky said, that the Legislature of the State had no 
 constitutional authority to exact from one citizen the entire 
 revenue of the Commonwealth; and though the distinction 
 between constitutional taxation, and the taking of private 
 property for public use by legislation, might not be de- 
 finable with perfect precision, the court was clearly of the 
 opinion that whenever the property of a citizen was taken 
 from him by the sovereign will and appropriated without 
 his consent to the benefit of the public, the exaction could 
 not be considered a tax unless similar contributions were 
 made hy the public itself, or rather exacted by the same 
 public will from such constituent members of the same 
 community as own the same kind of property; and that 
 though there may be a discrimination in the subjects of 
 
22 
 
 taxation, still persons of the same class, and property of 
 the same kind, must generally be subjected alike to the 
 same common burden. (9 Dana, Ky., 513.) 
 
 In State vs. Township of Readington, the Supreme Court 
 of l^ew Jersey said : " Taxation operates upon a commu- 
 nity, or a class in a community, according to some rule of 
 apportionment. When the amount levied upon individ- 
 uals is determined without regard to the amount or value 
 exacted from any othei* individual or classes of individuals, 
 the power exercised is not that of taxation, but of emi- 
 nent domain. A tax upon the persons or property of A. 
 B. and C. individually, whether designated by name or in 
 any other way, which is in excess of an equal apportion- 
 ment among the persons, or property of the class of per- 
 sons, or kind of property subject to the taxation, is, to the 
 extent of such excess, the taking of private property for 
 a public use without compensation. The process is one of 
 confiscation, and not of taxation." (36 N. J. L., 70.) 
 
 As the foundation of all just and equal taxation is the 
 assessment of the property taxed, that is the ascertain- 
 ment of its value, in order that the tax may be levied 
 according to some ratio to the value, uniformity of taxa- 
 tion necessarily requires uniformity in the mode of as- 
 sessment, as well as in the rate of taxation, or, to quote 
 the language of the Supreme Court of Ohio expressing 
 the same thought: " Uniformity in taxing, implies equal- 
 ity in the burden of taxation, and this equality of burden 
 cannot exist without uniformity in the mode of assess- 
 ment as well as in the rate of taxation." (Exchange Bank 
 of Columbus vs. Hincs, 3 Ohio St. Rep., 1.) 
 
 If we now look at the scheme of taxation prescribed 
 by the Constitution of California for the property of rail- 
 road companies, we shall perceive a flagrant departure 
 from the rule of equality and uniformity so essential to 
 equality in the distribution of the burdens of govern- 
 ment. Whenever an individual holds property encum- 
 bered with a mortgage he is assessed at its value, after 
 
23 
 
 deducting from it the amount of the mortgage. If a rail- 
 road company holds property subject to a mortgage, it is 
 assessed at its full value, without any deduction for the 
 mortgage; that is, as though the property were unincum- 
 bered. The inequality and discriminating character of 
 the procedure will be apparent by an illustration given by 
 counsel. Suppose a private person owns a farm which is 
 valued at $100,000, and is encumbered with a mortgage 
 amounting to 80,000; he is, in that case, assessed at $20,- 
 000; if the rate of taxation be two per cent, he would pay 
 $400 taxes. If a railroad corporation owns an adjoining 
 tract worth $100,000, which is also encumbered by a mort- 
 gage for $80,000, it would be assessed for $100,000, and 
 be required to pay $2,000 taxes, or five times as much as 
 the private person. There is here a discrimination too 
 palpable and gross to be questioned, and such is the nature 
 of the discrimination made against the Southern Pacific 
 Railroad Company in the taxation of its property. Noth- 
 ing can be clearer than that the rule of equality and uni- 
 formity is thus entirely disregarded. 
 
 The case of People vs. Weaver (100 U. S., 539), decided 
 by the Supreme Court, respecting the taxation of shares 
 of the National Banks, may be cited in this connection. 
 Without the permission of Congress, the shares of these 
 banks could not be taxed by the States. Congress gave 
 the permission on condition that the taxation should not 
 be at a greater rate than is assessed on other monied cap- 
 ital in the hands of individual citizens of the State, and 
 that the shares owned by non-residents of the State 
 should be taxed at the place where the bank is located. 
 (R. S., sec. 5219.) In the case cited, the court held, with 
 regard to such taxation, 1st, that the prohibition imposed 
 by Congress against discrimination had reference to the 
 entire process of assessment, and included the valuation 
 of the shares as well as the rate of percentage charged; 
 2d, that a statute of New York, which established a mode 
 of assessment by which such shares were valued higher 
 
24 
 
 in proportion to their real value than other monied cap- 
 ital, was in conflict with the prohibition, although the same 
 percentage on such valuation was levied; and 3d, that a 
 statute which permitted a party to deduct his debts from 
 the valuation of his personal property, except so much as 
 consisted of those shares, taxed the shares at a greater 
 rate than other monied capital. The assessment thus held 
 to be a discrimination against the shares of National Banks 
 in the taxation system of New York is similar to what we 
 hold to be a discrimination against the property of rail- 
 road corporations in the taxation system of California. 
 
 In the case of the Ecansmlle Bank vs. Britton, decided 
 at the last term of the Supreme Court, the doctrine of the 
 Weaver Case was affirmed; and it was held that the taxa- 
 tion of shares in the National Banks, under the revenue 
 laws of Indiana, without permitting the shareholder to 
 deduct from their assessed value the amount of his bona 
 fide indebtedness, which was allowed in the case of other 
 investments of monied capital, was a discrimination against 
 the act of Congress, and illegal. (105 U. S., 322.) 
 
 It is no answer to this discrimination to say that prop- 
 erty in the State may be divided into classes, and differ- 
 ent rates prescribed for them. Undoubtedly property 
 may be classified for purposes of taxation. Real prop- 
 erty may be subjected to one rate of taxation, personal 
 property to another rate. Property in particular dis- 
 tricts may be taxed for local purposes, whilst property 
 elsewhere may be exempt. Taxation on business in the 
 form of licenses may also vary according to the calling or 
 occupation licensed and the extent of business transacted; 
 but even then there must be uniformity of charges with 
 respect to the same calling or occupation in the same lo- 
 cality. It is, however, only with the taxation of property 
 that we are concerned in this case; arid the whole object of 
 classifying property is that each class may be subjected to 
 a special rate of taxation. There is no difference in the 
 rate prescribed by the law of the State for the property of 
 
25 
 
 railroad corporations, and the rate prescribed for the prop- 
 erty of individuals. There is only one rate for all prop- 
 erty. There is, therefore, no case presented for the appli- 
 cation of the doctrine of classification. The discrimina- 
 tion complained of arises from the different rule adopted 
 in ascertaining the value of the property of railroad cor- 
 porations as a basis for taxation, not from any different 
 rate of taxation when the value is established. In all taxes 
 upon property, whatever its form or nature, the property 
 is taken as representing a pecuniary value, as standing for 
 so much money invested. The tax is the rate per centum 
 of this pecuniary value. The value being ascertained, the 
 law fixes the rate. The ground of complaint here is that 
 the law requires a higher value to be placed upon the de- 
 fendant's property than upon the property of individuals 
 similarly encumbered, or rather requires the assessor of the 
 defendant's property, in estimating its value, to disregard 
 and set aside certain elements materially affecting its 
 amount, which are to be considered in estimating the 
 value of the property of individuals. It is not classifying 
 property to make this distinction in determining its value. 
 It is not classifying property to provide that the property 
 of certain parties, which has a mortgage upon it, shall be 
 assessed at its value after deducting the mortgage, and 
 that the property of other parties, also having a mortgage 
 upon it, shall be taxed at its full value, without any deduc- 
 tion. That is not providing for a different rate of taxa- 
 tion for different kinds of property, but for unequal taxa- 
 tion according to the character of the owner. 
 
 Is the defendant, being a corporation, a person within 
 the meaning of the Fourteenth Amendment, so as to be 
 entitled, with respecfe to its property, to the equal protec- 
 tion of the laws ? The learned counsel of the plaintiff, 
 and the Attorney-General of the State, take the negative 
 of this question, and assert with much earnestness that the 
 amendment applies, and was intended to apply, only to the 
 
26 
 
 newly-made citizens of the African race, and should be 
 limited to their protection. 
 
 It is undoubtedly true that the amendment had its 
 origin in a purpose to secure to these newly-made citizens 
 the full enjoyment of their freedom. When the amend- 
 ment abolishing slavery and involuntary servitude was 
 adopted, there were men in Congress who believed that 
 it was intended to make every one born within the United 
 States a freeman, and as such to give to each the right to 
 pursue his happiness in the ordinary vocations of life, sub- 
 ject to no restraint except such as affects others, and to 
 enjoy equally with them the fruits of his labor. They, 
 therefore, proposed the Civil Rights Bill, and secured its 
 passage, the substantial provisions of which we have stated. 
 Notwithstanding this expression of the National Legis- 
 lature as to the purpose of the amendment, the newly- 
 made citizens were subjected in several of the States to 
 various disabilities and burdens, and curtailed of their 
 rights to such an extent that their freedom became of lit- 
 tle value. To quote from the opinion of Mr. Justice Mil- 
 ler, speaking for the court, in the Slaughter-House Cases: 
 "They were in some States forbidden to appear in the 
 towns in any other character than as menial servants. 
 They were required to reside on and cultivate the soil 
 without the right to "purchase or own it. They were ex- 
 cluded from many occupations of gain and hire, and were 
 not permitted to give testimony in the courts in any case 
 where a white man was a party. It was said that their 
 lives were at the mercy of bad men, either because the 
 laws for their protection were inefficient or were not en- 
 forced." (16 "Wall, 70.) There was probably much ex- 
 aggeration in what was reported of- their treatment, but 
 the statements made produced a profound impression upon 
 Congress. The validity of the Civil Rights Act was also 
 called in question, and in some instances was adjudged by 
 State Courts to be invalid. Reports also prevailed that 
 loyal men of the South were treated with exceptional 
 
27 
 
 harshness, and that men from the North seeking residence 
 there were met with marked hostility and aversion. It is 
 not surprising that such was the fact, for notwithstanding 
 the fiery courage and martial spirit of her people, their 
 battalions had gone down before the forces of the Union. 
 With the sound of the tread of the victorious army still 
 ringing in their ears; with the desolations of war all 
 around them, and the sudden rupture of their social re- 
 lations by the emancipation of their former slaves, it 
 would have been a miracle if bitterness towards their 
 recent foes had not lingered in their hearts and been ex- 
 hibited in their conduct. A proud and brave people feel 
 more keenly than others the sting of defeat. Undoubt- 
 edly much misconception and falsehood were mingled with 
 the statements made respecting their action; nevertheless, 
 they led to the introduction into Congress of the propo- 
 sition for the Fourteenth Amendment. The discussion 
 which followed indicated that the purpose of its framers 
 and advocates was to obviate objections to legislation sim- 
 ilar to that contained in the first section of the Civil 
 Rights Act, and to prevent for the future the possibility of 
 any discriminating and hostile State legislation against any 
 one. 
 
 Mr. Stevens, of the House of Representatives, in pre- 
 senting the proposition, after stating the provisions of the 
 first section, said: " I can hardly believe that any person 
 can be found who will not admit that every one of these 
 provisions is just. They are all asserted in some form or 
 other in our declaration or organic law. But the Consti- 
 tution limits only the action of Congress, and is not a lim- 
 itation on the States. This amendment supplies that 
 defect, and allows Congress to correct the unjust legisla- 
 tion of the States so far, that the law which operates upon one 
 man shall operate equally upon all" In reply to an objec- 
 tion that the first section of the amendment was in sub- 
 stance the Civil Rights Bill, which Congress had passed 
 over the President's veto, and that by voting to so amend 
 
28 
 
 the Constitution as to put the bill into it, was to admit 
 that the bill was unconstitutional, Mr. Garfield, then also 
 a member of the House, said: " We propose to lift that 
 great arid good law above the reach of political strife, be- 
 yond the reach of plots and machinations of any party, 
 and fix it in the serene sky, in the eternal firmament of 
 the Constitution, where no storm of passion can shake it 
 and no cloud can obscure it. For this reason, and not be- 
 cause I believe the Civil Rights Bill unconstitutional, I 
 am glad to see that first section here." 
 
 Though the occasion of the amendment was the sup- 
 posed denial of rights in some States to newly-made citi- 
 zens of the African race, and the supposed hostility to 
 Union men, the generality of the language used extends 
 the protection of its provisions to persons of every race 
 and condition against discriminating and hostile State 
 action of any kind. Its effect, in preserving free institu- 
 tions and preventing harsh and oppressive State legis- 
 lation, can hardly be overstated. When burdens are 
 placed upon particular classes or individuals, whilst the 
 majority of the people are exempted, little heed may 
 be paid to the complaints of those affected. Oppression 
 thus becomes possible and lasting. But a burdensome law, 
 operating equally upon all, will soon create a movement 
 for its repeal. With the amendment enforced, a bad or 
 an oppressive State law will not long be left on any statute 
 book. 
 
 The argument that a limitation must be given to the 
 scope of this amendment, because of the circumstances of 
 its origin, is without force. Its authors, seeing how pos- 
 sible it was for the States to oppress, without relief from 
 the Federal Government, placed in the Constitution an 
 interdict upon their action, which makes lasting oppression 
 of any kind by them under the form of law impossible. 
 
 The amendment prohibiting slavery and involuntary ser- 
 vitude, except as a punishment for crime, had its origin in 
 the previous existence of African slavery. But the gen- 
 
29 
 
 erality of its language makes its prohibition apply to sla- 
 very of white men as well as that of black men; and also 
 to serfage, vassalage, villenage, peonage, and every other 
 form of compulsory labor to minister to the pleasure, 
 caprice, vanity, or power of others. 
 
 The provision of the Constitution prohibiting legisla- 
 tion by States impairing the obligation of contracts, had 
 its origin in the existence of tender laws, appraisement 
 laws, stay laws, and installment laws passed by the States 
 soon after the Revolution, when their finances were em- 
 barrassed and their people were overwhelmed with debts. 
 These laws, according to Story, prostrated all private 
 credit and all private morals, and led to the adoption 
 of the prohibition, by which such* legislation was for- 
 ever prevented. But in its construction the provision 
 has not been limited to mere commercial contracts. In 
 the Dartmouth College Case it was urged that the charter 
 of the college was not a contract contemplated by the 
 Constitution, because no valuable consideration passed to 
 the King as an equivalent for the grant, and that contracts 
 merely voluntary were not within the prohibition. But 
 Chief Justice Marshall, after showing that the charter was 
 a contract upon a valuable consideration, said : " It is more 
 than possible that the preservation of rights of this de- 
 scription was not particularly in view of the frainers of 
 the Constitution when the clause under consideration was 
 introduced into that instrument. It is probable that inter- 
 ferences of more frequent recurrence, to which the temp- 
 tation was stronger, and of which the mischief was more 
 extensive, constituted the great motive for imposing this 
 restriction on the State Legislatures. But although a par- 
 ticular and a rare case may not in itself be of sufficient 
 magnitude to induce a rule, yet it must be governed by 
 the rule when established, unless some plain and strong 
 reason for excluding it can be given;" and again: a The 
 case being within the words of the rule must be within 
 its operation likewise', unless there be something in the 
 
30 
 
 literal construction so obviously absurd or mischievous, or 
 repugnant to the general spirit of the instrument, as to 
 justify those who expound the Constitution in making it 
 an exception/' (4 Wheat. ,644.) 
 
 Following that authority, we cannot adopt the narrow 
 view for which counsel contend, and limit the application 
 of the prohibition of the Fourteenth Amendment to legis- 
 lation touching members of the enfranchised race. It has 
 a much broader operation. It does not, indeed, place any 
 limit upon the subjects., in reference to which the States 
 may legislate. It does not intefere with their police 
 power. Upon every matter upon which, previously to its 
 adoption they could act, they may still act. They can 
 legislate now, as they always could, to promote the health, 
 good order, and peace of the community, to develop their 
 resources, increase their industries, and advance their 
 prosperity; but it does require that in all such legisla- 
 tion, hostile and partial discrimination against any class or 
 person shall be avoided; that the States shall impose no 
 greater burdens upon any one than upon others of the 
 community under like circumstances, nor deprive any one 
 of rights, which others similarly situated are allowed to 
 enjoy. It forbids the State to lay its hand more heavily 
 upon one than upon another under like conditions. It 
 stands in the Constitution as a perpetual shield against all 
 unequal and partial legislation by the States, and the in- 
 justice which follows from it, whether directed against the 
 most humble or the most powerful; against the despised 
 laborer from China, or the envied master of millions. 
 
 The adoption of the Federal Constitution met, as all 
 know, with most determined opposition from a large 
 class, who believed that the exercise of the powers dele- 
 gated to the General Government would cripple and em- 
 barrass the States in the administration of their local 
 affairs. The dread of centralization disturbed the minds 
 of some of the purest and greatest statesmen of the 
 day. This feeling continued after the adoption of the 
 
31 
 
 Constitution, and finally led to the first ten amendments. 
 The population of the country was sparse; each State af- 
 forded security to its people, and was to them the special 
 object of attachment. They enjoyed under its laws pro- 
 tection in their property, in their homes, and in their 
 business. They felt a natural distrust of a power wielded 
 by officers not selected by themselves. They apprehended 
 that the rights which they enjoyed might be encroached 
 upon, if not destroyed. So the amendments proposed 
 contained limitations upon the powers of Congress; many 
 of which were indeed unnecessary, but were adopted in order 
 to prevent " misconception or abuse of the powers of the 
 General Government." They declared, among other 
 things, that certain liberties should not be abridged, such 
 as the free exercise of religion, the freedom of speech 
 and of the press; that certain rights should not be taken 
 away, such as the right of the people to peaceably assem- 
 ble and petition for a redress of grievances, and to be se- 
 cure in their persons, houses, papers, and effects, against 
 unreasonable searches and seizures; that certain securities 
 against wanton prosecution for public offenses should not 
 be withdrawn, such as that no person should be held to 
 answer for a felony, except upon the presentment or an 
 indictment of a grand jury; that in all prosecutions, the 
 accused should have the benefit of a speedy trial ; should 
 be informed of the nature and cause of the accusation; 
 should be confronted with the witnesses against him, and 
 should have compulsory process for obtaining witnesses, 
 and the assistance of counsel; that certain guarantees 
 against oppression of person and spoliation of property 
 should not be violated, such as that no person should 
 be deprived of life, liberty, or property without due pro- 
 cess of law, and that private property should not be taken 
 for public use without just compensation; that the enu- 
 meration in the Constitution of certain rights, should not 
 be construed to deny or disparage others retained by the 
 people; and that the powers not delegated to the United 
 
32 
 
 States by the Constitution, nor prohibited by it to the 
 States, were reserved to the States, respectively, or to the 
 people. These were all restraints upon the General Gov- 
 ernment. Had the population of the United States con- 
 tinued as sparse as when the Constitution was formed, and 
 the means of more rapid intercourse between the States had 
 not been invented, it is possible that further amendments 
 would not have been demanded. But the immense de- 
 velopment of the resources of the country, the great in- 
 crease of population, the constant intercourse between the 
 States by steamer, railway, and telegraph changed the 
 business and commercial relations of the States to each 
 other, and led the people of one section to seek a closer 
 union, and to desire a greater authority to be exercised by 
 the central Government, whilst the peculiar institutions of 
 the other section, and the different industries they devel- 
 oped, led its people to desire to limit, rather than to 
 strengthen the central authority. Differences of opinion 
 in matters of internal policy, and the estrangement en- 
 gendered by controversies growing out of the existence of 
 slavery in some of the States, ultimately culminated in 
 civil war. Men then saw that danger was to be appre- 
 hended in a direction opposite to that which led to the 
 original amendments. Restraints upon the power and 
 action of the States were, therefore, suggested, and to im- 
 pose them and to abolish slavery, the great cause of the 
 civil conflict, the new amendments the Thirteenth, Four- 
 teenth, and Fifteenth were adopted. " While, therefore," 
 to quote the language of an admirable writer and eminent 
 jurist, Judge Cooley, "the first amendments were for the 
 purpose of keeping the central pow.er within due limits, 
 at a time when the ten4ency to centralization was alarm- 
 ing to many persons; the last were adopted to impose new 
 restraints on State sovereignty, at a time when State pow- 
 ers had nearly succeeded in destroying the national sov- 
 ereignty. Of these amendments, it may be safely affirmed, 
 that the first ten took from the Union no power it ought 
 
33 
 
 ever to have exercised, and that the last three required of 
 the States the surrender of no power which any free gov- 
 ernment should ever employ." It would tend, therefore, 
 to defeat the great purpose of the late amendments, if to 
 any of them, we should give the narrow construction for 
 which counsel contend. 
 
 Private corporations are, it is true, artificial persons, hut 
 with the exception of a sole corporation, with which we 
 are not concerned, they consist of aggregations of indi- 
 viduals united for some legitimate business. In this State 
 they are formed under general laws; and the Civil Code 
 provides that they " may he formed for any purpose for 
 which individuals may lawfully associate themselves." 
 Any five or more persons may by voluntary association 
 form themselves into a corporation. And as a matter of 
 fact, nearly all enterprises in this State, requiring for their 
 execution an expenditure of large capital, are undertaken 
 by corporations. They engage in commerce; they build 
 and sail ships; they cover our navigable streams with 
 steamers; they construct houses; they bring the products 
 of earth and sea to market; they light our streets and 
 buildings; they open and work mines; they carry water 
 into our cities; they build railroads, and cross mountains 
 and deserts with them; they erect churches, colleges, 
 lyceums, and theatres; they set up manufactories and keep 
 the spindle and shuttle in motion; they establish banks 
 for savings; they insure against accident on land and 
 sea; they give policies on life, they make money ex- 
 changes with all parts of the world; they publish news- 
 pa'pers and. books, and send news by lightning across the 
 continent and under the ocean. Indeed there is nothing 
 which is lawful to be done to feed and clothe our people, 
 to beautify and adorn their dwellings, to relieve the 
 sick, to help the needy, and to enrich and ennoble hu- 
 manity, which is not to a great extent done through the 
 instrumentalities of corporations. There are over five 
 hundred corporations in this State; there are thirty thou- 
 
34 
 
 sand in the United States, and the aggregate value of their 
 property is several thousand millions.* It would be a 
 most singular result, if a constitutional provision intended 
 for the protection of every person against partial and dis- 
 criminating legislation by the States, should cease to exert 
 such protection the moment the person becomes a member 
 of a corporation. We cannot accept such a conclusion. 
 On the contrary, we think that it is well established by 
 numerous adjudications of the Supreme Court of the 
 United States, and of the several States, that whenever a 
 provision of the Constitution, or of a law, guarantees to 
 persons the enjoyment of property, or affords to them 
 means for its protection, or prohibits legislation injuriously 
 affecting it, the benefits of the provision extend to cor- 
 porations, and that the Courts will always look beyond the 
 name of the artificial being to the individuals whom it 
 represents. 
 
 The case of the Society for the Propagation of the Gospel 
 in Foreign Parts vs. The Town of New Haven, reported in 
 the 8th of Wheaton, furnishes an apt illustration of this 
 doctrine. The sixth article of the treaty of peace with 
 Great Britain of 1783 provided that there should be " no 
 future confiscations made nor any prosecutions commenced 
 against any person or persons for or by reason of the part 
 which he or they may have taken in the present war, and 
 that no person shall on that account suffer any future loss 
 or damage, either in his person, liberty, or property." An 
 English corporation claimed the benefit of this article with 
 reference to certain lands in Vermont granted to it be- 
 fore the Revolution, which the Legislature of that Sta'te 
 had undertaken to give to the town where they were 
 situated. It was contended that the treaty only applied to 
 natural persons ; that it did not embrace corporations, be- 
 cause they were not persons who could take part in the 
 
 * The number of corporations here stated is much less than the num- 
 ber actually existing. There are over five thousand corporations in Cali- 
 fornia alone. 
 
35 
 
 war, or could be considered British subjects, but the posi- 
 tion was held to be untenable. The Court, speaking 
 through Mr. Justice Washington, said that the argument 
 proceeded upon an incorrect view of the subject, and re- 
 ferred to the case of The United States vs. Devaux, (5 
 Crane h, 86,) to show that the Court, when necessary, will 
 look beyond the name of a corporation to reach and pro- 
 tect those whom it represents. 
 
 The Constitution, in defining the judicial power of the 
 United States, declares that it shall extend to " controver- 
 sies between citizens of different States," and in the case 
 referred to by Mr. Justice Washington the question arose 
 whether a corporation composed of citizens of one State 
 could sue in the Circuit Court of the United States a citi- 
 zen of another State, and it was held that it could. In 
 deciding the question, the Court, speaking through Chief 
 Justice Marshall, said: " However true the fact may be 
 that the tribunals of the State will administer justice as 
 impartially as those of the Nation to parties of every de- 
 scription, it is not less true that the Constitution itself 
 either entertains apprehensions on this subject, or views 
 with such indulgence the possible fears and apprehensions 
 of suitors, that it has established national tribunals for the 
 decision of controversies between aliens and a citizen, or 
 between citizens of different States. Aliens or citizens of 
 different States are not less susceptible of these apprehen- 
 sions, nor can they be supposed to be less the objects of 
 constitutional provision because they are allowed to sue by 
 a corporate name. That name, indeed, cannot be an alien 
 or a citizen, but the persons whom it represents may be 
 the one or the other, and the controversy is, in fact and in 
 law, between those persons suing in their corporate char- 
 acter, by their corporate name, for a corporate right, and 
 the individual against whom the suit may be instituted. 
 Substantially and essentially the parties in such a case, 
 where the members of the corporation are aliens or citizens 
 of a different State from the opposite party, come within 
 
36 
 
 the spirit and terms of the jurisdiction conferred by the 
 Constitution on the national tribunals. Such has been the 
 universal understanding 'on the subject. Repeatedly has 
 this Court decided causes between a corporation and an 
 individual without feeling a doubt respecting its jurisdic- 
 tion." 
 
 The same point was presented in another form in the 
 case of Marshall vs. Baltimore and Ohio Railroad Company 
 (16 How., 326). There the question was whether a citi- 
 zen of one State could sue in the Circuit Court of the 
 United States a corporation of another State, and a similar 
 conclusion was reached. After referring to the clause of 
 the Constitution, extending the judicial power of the 
 United States to controversies between citizens of differ- 
 ent States, the Court proceeded to consider the objections 
 urged to treating a corporation as a citizen,, so far as it 
 might be necessary to protect the corporators: " A cor- 
 poration," observed Mr. Justice Grier, speaking for the 
 Court, " it is said, is an artificial person, a mere legal en- 
 tity, invisible and intangible. This is no doubt metaphysi-. 
 cally true in a certain sense. The inference, also, that 
 such an artificial entity ' cannot be a citizen ' is a logical 
 conclusion from the premises, which cannot be denied. 
 But a citizen who has made a contract, and has a contro- 
 versy with a corporation, may also say, with equal truth, 
 that he did not deal with a mere metaphysical abstraction , 
 but with natural persons; that his writ has not been served 
 on an imaginary entity, but on men and citizens; and that 
 his contract was made with them as the legal representa- 
 tives of numerous unknown associates, or secret and dor- 
 mant partners." 
 
 " The necessities and conveniences of trade and busi- 
 ness require that such numerous associates and stock- 
 holders should act by representation, and have the faculty 
 of contracting, suing and being sued in a fictitious or col- 
 lective name. But these important faculties,, conferred on 
 them by State legislation, for their own convenience, can- 
 
not be wielded to deprive others of acknowledged rights. 
 It is not reasonable that those who deal with such persons 
 should be 'deprived of a valuable privilege by a syllogism, 
 or rather sophism which deals subtly with words and 
 names without regard to the things or persons they are 
 used to represent." 
 
 The Fifth Amendment to the Constitution declares that 
 " No person shall be held to answer for a capital, or other- 
 wise infamous crime, unless on a presentment or indict- 
 ment of a Grand Jury, except in cases arising in the land 
 or naval forces, or in the militia, when in actual service in 
 time of war or public danger; nor shall any person be sub- 
 ject for the same offence to be twice put in jeopardy of 
 life or limb; nor shall be compelled in any criminal 
 case to be a witness against himself, nor be deprived of 
 life, liberty, or property without due process of law; nor 
 shall private property be taken for public use, without just 
 compensation." 
 
 From the nature of the prohibitions in this amendment, 
 it would seem, with the exception of the last one, as though 
 they could apply only to natural persons. ~No others can 
 be witnesses; no others can be twice put in jeopardy of 
 life or limb, or compelled to be witnesses against them- 
 selves; and, therefore, it might be said with much force 
 that the word person there used in connection with the 
 prohibition against the deprivation of life, liberty, and 
 property without due process of law, is in like manner 
 limited to a natural person. But such has not been" the 
 construction of the Courts. A similar provision is found in 
 nearly all of the State Constitutions; and every where, and 
 at all times, and in all Courts, it has been held, either by tacit 
 assent or express adjudication, to extend, so far as their 
 property is concerned, to corporations. And this has been 
 because the property of a corporation is in fact the prop- 
 erty of the corporators. To deprive the corporation of its 
 property, or to burden it, is in fact, to deprive the corpo- 
 rators of their property or to lessen its value. Their in- 
 
38 
 
 terest, undivided though it be, and constituting only a 
 right during the continuance of the corporation to partici- 
 pate in its dividends, and on its dissolution to receive a 
 proportionate share of its assets, has an appreciable value, 
 and is property in a commercial sense; and whatever affects 
 the property of the corporation necessarily affects the 
 commercial value of their interest. If, for example, to 
 take the illustration given by counsel, a corporation created 
 for banking purposes acquires land, notes, stocks, bonds, and 
 money, no stockholder can claim that he owns any particu- 
 lar item of this property, but he owns an interest in the 
 whole of it which the Courts will protect against unlawful 
 seizure or appropriation by others, and on the dissolution 
 of the company he will receive a proportionate share of 
 its assets. Now, if a statute of the State takes the entire 
 property, who suffers loss by the legislation ? Whose prop- 
 erty is taken ? Certainly the corporation is deprived of 
 its property; but, at the same time, in every just sense of 
 the Constitutional guaranty, the corporators are also de- 
 prived of their property. 
 
 The prohibition against the deprivation of life and lib- 
 erty in the same clause of the Fifth Amendment does not 
 apply to corporations, because, as stated by counsel, the 
 lives and liberties of the individual corporators are not the 
 life and liberty of the corporation. 
 
 Nor do all the privileges and immunities of citizenship 
 attach to corporations. These bodies have never been 
 considered citizens for any other purpose than the protec- 
 tion of the property rights of the corporators. The status 
 of citizenship, entitling the citizen to certain privileges 
 and immunities in the several States, does not belong to 
 corporations. The special privileges which citizens ac- 
 quire by becoming incorporated in one State cannot, there- 
 fore, be exercised in another State without the latter 's 
 consent, -as was held in Paul vs. Virginia, (8 Wall., 168,) 
 although such consent will generally be presumed in the 
 absence of positive prohibition. 
 
39 
 
 Decisions of State Courts, in harmony with the views 
 we have expressed, exist in great numbers. But it is un- 
 necessary to eite them. It is sufficient to add that in all 
 text-writers, in all codes, arid in all Revised Statutes, it is 
 laid down that the term person includes, or may include, 
 corporations, which amounts to what we have already 
 said, that whenever it is necessary for the protection of 
 contract or property rights, the Courts will look through 
 the ideal entity and name of the corporation to the persons 
 who compose it and protect them, though the process be 
 in its name. All the guaranties and safeguards of the 
 Constitution for the protection of property possessed by 
 individuals may, therefore, be invoked for the protection 
 of the property of corporations. And as no discriminat- 
 ing and partial legislation, imposing unequal burdens up- 
 on the property of individuals, would be valid under the 
 Fourteenth Amendment, so no legislation imposing such 
 unequal burdens upon the property of corporations can be 
 maintained. The taxation, therefore, of the property of 
 the defendant upon an assessment of its value, without a 
 deduction of the mortgage thereon, is to that extent in- 
 valid. 
 
 If there were no other objection to the assessment we 
 might perhaps order judgment for the amount of taxes 
 due upon the valuation of the property, after deducting 
 therefrom the amount of the mortgage; but there is anoth- 
 er objection of equal significance, which goes to the valid- 
 ity of the whole assessment. No opportunity was afforded 
 to the defendant to be heard respecting it before the State 
 Board of Equalization. It was made by the Board under 
 the tenth section of Article XIII. of the Constitution, which 
 declares that " the franchise, roadway, road-bed, rails, and 
 rolling-stock of all railroads operated in more than one 
 county in this State shall be assessed by the State Board 
 of Equalization at their actual value, arid the same shall 
 be apportioned to the counties, cities and counties, cities, 
 towns, townships and districts in which such railroads are 
 
40 
 
 located, in proportion to the number of miles of railway 
 laid in such counties, cities and counties, towns, town- 
 ships and districts." 
 
 Other articles of the Constitution, and laws supplement- 
 ing their directions, provide for the assessment by county 
 officers of all property except "the franchise, roadway, 
 road-bed, rails, ond rolling-stock " of railroads operated in 
 more than one county, for a hearing by property holders 
 respecting the assessment, and for its equalization by 
 county boards. Ample security is thus afforded to indi- 
 viduals against erroneous and arbitrary assessments. But 
 the assessment of the property mentioned of railroads 
 operated in more than one county is placed entirely with 
 the State Board. In People vs. Supervisors of Sacramento 
 County, the Supreme Court of the State said that : " It is 
 the manifest intent of the Constitution that the valuation 
 of the railroad property mentioned in Section 10 of Article 
 XIII. shall be finally fixed and determined by the State 
 Board- of Equalization. The State Board has the exclusive 
 power to assess and equalize its value. Thus the Consti- 
 tution furnishes a system for the assessment of railroads 
 operated in more than one county, which is separate and 
 distinct from that provided for the assessment of other 
 property; " and, again, " The portion of the section quoted 
 (the portion above) is clearly self-executing. We are at 
 a loss to imagine how any statute could make the duty of 
 the State Board any clearer than does this distinct and 
 positive mandate of the Constitution. If any doubt could 
 possibly be built upon the words cited it would be dispelled 
 by the first clause of. the same section: 'All property, ex- 
 cept as hereinafter in this section provided, shall be as- 
 sessed in the county, cit^, city and county, town, township 
 or district in which it is situated in the manner prescribed 
 by law.' Thus by the very language of the Constitution 
 all other but the railroad property mentioned must be as- 
 sessed by local assessors, in the manner prescribed by stat- 
 ute. The railroad property must be assessed in the man- 
 
41 
 
 ner prescribed by the section of the Constitution, that is, 
 by the State Board, without the aid of statute." (Pacific 
 Law Journal, vol. 8, p. 103.) 
 
 The Political Code provides that the assessment shall be 
 made by the State Board on or before the first Monday in 
 May of each year; that the President, Secretary, Cashier, 
 or Managing Agent, or such officer of the corporation as 
 the Board may designate, shall furnish to the Board, on or 
 before the first Monday of April of the year, a statement 
 signed and sworn to by him, showing in detail the 
 whole number of miles of railway owned, operated, or 
 leased in the State by the corporation, and the value 
 thereof per mHe, and all its property of every kind 
 located in the State, the number and value of its engines, 
 passenger, mail, express, baggage, freight and other cars, 
 or property used in operating or repairing the railway in 
 the State, and on railways which are parts of lines extend- 
 ing beyond its limits, the amount of the rolling-stock in 
 use during the year, the annual gross earnings of the entire 
 railway, and the proportionate annual gross earnings of 
 the same in the State, and such other facts as the Board 
 may in writing require; and that if the officer or officers 
 designated fail to make and furnish such statement, the 
 Board shall proceed to assess the property; and the valua- 
 tion fixed shall be final and conclusive. The law also pro- 
 vides that the property shall be assessed at its actual value; 
 that the assessment shall be made of the entire railway in 
 the State, including the right of way, road-bed, track, 
 bridges, culverts, and rolling-stock; that the State Board 
 shall transmit to the County Assessor of each county 
 through which the railway runs a statement showing the 
 length of its main track within the county, and its as- 
 sessed value per mile as fixed by a pro rata distribution 
 per mile of the assessed value of the whole property; 
 that this statement shall be entered on the assessment- 
 roll of the county, and that at their first meeting after 
 its receipt by the County Assessor, the Board of Super- 
 4 
 
42 
 
 visors of the county shall cause an order to be entered 
 in the proper Record Book stating the length of the 
 main track, and the assessed value of the railway lying 
 in each city, town, township, school-district, or lesser 
 taxing district in the county, through which the railway 
 runs, as fixed by the State Board, which shall constitute 
 the taxable value of the property for taxable purposes in 
 the district, and that such property shall be taxed at the 
 same rates as the property of individuals. 
 
 We have no doubt that further legislation might have 
 been adopted providing for notice to the company, and a 
 system of procedure by which it might have been heard 
 respecting the assessment. We do not understand that 
 the Supreme Court of the State intended by the decision 
 cited to hold that the 10th section of the XHIth article is 
 self-executing, except to the extent that it vests complete 
 power in the State Board to make the assessment of the 
 property; not that legislation may not be had providing 
 for the mode in which the powers of the Board shall be 
 exercised. Indeed, the concluding section of the article 
 authorizes any legislation necessary to give effect to its 
 provisions. Unfortunately no such legislation has been 
 had. The attempted legislation failed, because it did not 
 receive in the Legislature the constitutional majority, as 
 is clearly shown by the Circuit Judge in his opinion. It 
 is unnecessary to go over the ground he has completely 
 covered. 
 
 The presentation to the State Board by the corporation 
 of a statement of its property and of its value, which it is 
 required to furnish, is not the equivalent to a notice of the 
 assessment made and an opportunity to be heard thereon. 
 It is a preliminary proceeding, and until the assessment 
 the corporation cannot know whether it will have good 
 cause of complaint. No hearing upon the statement pre- 
 sented is allowed, and when the assessment is made, the 
 matter is closed; no opportunity to correct; any errors com- 
 mitted is provided. The presentation of the statement 
 
43 
 
 can no more supersede the necessity of allowing a 
 sequent hearing of the owners, than the filing of a com- 
 plant in court can dispense with the right of the suitor and 
 his contestant to he there heard. 
 
 There being then no provision of law giving to the com- 
 pany notice of the action of the State Board, and an op- 
 portunity to be heard respecting it, is the assessment 
 valid? Would the taking of the company's property, in 
 the enforcement of the tax levied according to the as- 
 sessment, be depriving it of its property without due pro- 
 cess of law ? It seems to us there can be but one answer 
 to these questions. There is something repugnant to all 
 notions of justice in the doctrine that any body of men 
 can be clothed with the power of finally determining the 
 value of another's property, according to which it maybe 
 taxed, without affording to him an opportunity of being 
 heard respecting the correctness of their action. And the 
 injustice is strikingly apparent when the property consists 
 of the great number of particulars which go to make up 
 the taxable estate of a railroad company, requiring for any 
 just estimate of their value accurate knowledge upon a 
 multitude of subjects, not usually possessed without special 
 study. We cannot assent to any such doctrine. It con- 
 flicts with the great principle which lies at the foundation 
 of all just government, that no one shall be deprived of 
 his life, his liberty, or his property, without an opportu- 
 nity of being heard against the proceeding. The princi- 
 ple is as old as Magna Charta, and is embodied in all the 
 State Constitutions, arid in the Fourteenth Amendment of 
 the Federal Constitution. The provision in this amend- 
 ment is in the form of an interdict upon the States : 
 " Nor shall any State deprive any person of life, liberty, 
 or property, without due process of law." And by due 
 process is meant one which, following the forms of law, 
 is appropriate to the case, and just to the parties to be af- 
 fected. It must be pursued in the ordinary mode pre- 
 scribed by the law; it must be adapted to the end to be 
 
44 
 
 attained; and it must give to the party to be affected an 
 opportunity of being heard respecting the justice of the 
 judgment sought. Without these conditions entering 
 into the proceeding, it would be anything hut due pro- 
 cess. If it* touched life or liberty, it would be wanton 
 punishment, or rather wanton cruelty; if it touched prop- 
 erty, it would be arbitrary exaction. It is significant that 
 the guaranty against the deprivation of property without 
 due process of law is contained in the clause which guar- 
 antees against a like deprivation of life and liberty; and 
 it means that there shall be no proceeding against either 
 without the observance of all the securities applicable to 
 the case recognized by the general law, by those principles 
 which are established in all constitutional governments for 
 the protection of private rights. Notice is absolutely es- 
 sential to the validity of the proceeding in any case; it 
 may be given by personal citation ; and, in some cases, it 
 may be given by statute; but given it must be in some 
 form. If life and liberty are involved, there must be a 
 regular coarse of judicial proceedings; so, also, where 
 title or possession of property is in contention. But in 
 the taking of property by taxation, the proceeding is more 
 summary and stringent. The necessities of revenue for 
 the support of government will not admit of the delays 
 attendant upon judicial proceedings in the courts of jus- 
 tice. The statute fixes the rate of taxation upon the value 
 of the property, and appoints officers to estimate and ap- 
 praise the value. Due process of law in the proceeding 
 is deemed to be pursued when, after the assessment is 
 made b} r the assessing officers upon such information as 
 they may obtain, the owner is allowed a reasonable op- 
 portunity, at a time and jplace to be designated, to be heard 
 respecting the correctness of the assessment, and to show 
 any errors in the valuation committed by the officers. 
 Notice to him will be deemed sufficient, if the time and 
 place of hearing be designated by statute. But whatever 
 the character of the proceeding, whether judicial or ad- 
 
45 
 
 rninistrative, summary or protracted; and whether it takes 
 property directly, or creates a charge or liability which 
 may be the basis of taking it, the law directing the pro- 
 ceeding must provide for some kind of notice, and otter 
 to the owner an opportunity to be heard, or the proceed- 
 ing will want the essential ingredient of due process of 
 law. Nothing is more clearly established by a weight of 
 authority absolutely overwhelming than that notice and, 
 opportunity to be heard are indispensable to the validity 
 of the proceeding. 
 
 In Davidson vs. New Orleans, the Supreme Court of the 
 United States assumed this position to b6 unquestionable. 
 In that case an assessment levied on certain real estate in 
 New Orleans, for draining the swamps of that city, was 
 resisted on the ground that the proceeding deprived the 
 owners of their property without due process of law; and 
 the Court refused to disturb it, for the reason that the 
 owners of the property had notice of the assessment and 
 an opportunity to contest it in the Courts. After stating 
 that much misapprehension prevailed as to the meaning 
 of the terms " due process of law," and that it would be 
 difficult to give a definition which would be at once per- 
 spicuous, comprehensive, and satisfactory, the Court, speak- 
 ing through Mr. Justice Miller, said that it would lay down 
 the following proposition as applicable to the case: "That 
 whenever, by the laws of a State, or by State authority, 
 a tax, assessment, servitude, or other burden is imposed 
 upon property for the public use, whether it be for the 
 whole State or of some more limited portion of the com- 
 munity; and those laws provide for a mode of confirming 
 or contesting the charge thus imposed, in the ordinary 
 Courts of justice, with notice to the person, or such pro- 
 ceeding in regard to the property as is appropriate to the 
 nature of the case; the judgment in such proceedings can- 
 not be said to deprive the owner of his property without 
 due process of law, however obnoxious it may be to other 
 objections." (96 U. S., 104.) 
 
46 
 
 Iri Stuart vs. Palmer the meaning of these terms is elab- 
 orately considered by the Court of Appeals of New York, 
 with reference to numerous adjudications on the subject. 
 In that case a law of the State imposed an assessment on 
 certain real property for a local improvement, without no- 
 tice to the owner, and a hearing, or an opportunity to be 
 heard by him, and the Court held that it had the effect of 
 depriving him of his property without due process of law, 
 and was, therefore, unconstitutional. Mr. Justice Earl, 
 speaking for the Court, said: " I am of opinion that the 
 Constitution sanctions no law imposing such an assess- 
 ment, without a notice to, and a hearing, or an opportunity 
 of hearing by the owners of the property to be assessed. 
 It is not enough that the owners may by chance have no- 
 tice, or that they may, as a matter of favor, have a hear- 
 ing. The law must require notice to them, and give them 
 the right to a hearing, and an opportunity to be heard. 
 It matters not, upon the question of the constitutionality 
 of such a law, that the assessment has in fact been fairly 
 apportioned. The constitutional validity of a law is to be 
 tested, not by what has been done under it, but what may, 
 by its authority, be done. The Legislature may prescribe 
 the kind of notice, and the mode in which it shall be 
 given, but it cannot dispense with all notice." And again, 
 that: "No case, it is believed, can be found in which it 
 was decided that this constitutional guaranty " (against de- 
 priving one of his property without due process of law) 
 " did not extend to cases of assessments; and yet we may 
 infer from certain dicta of judges that their attention was 
 not called to it, or that they lost sight of it in the cases 
 which they were considering. It has sometimes been in- 
 timated that a citizen is not deprived of his property, 
 within the meaning of this constitutional provision, by 
 the imposition of an assessment. It might as well be said 
 that he is not deprived of his property by a judgment en- 
 tered against him. A judgment does not take property 
 until it is enforced, and then it takes the real or personal 
 
47 
 
 property of the debtor. So an assessment may generally 
 be enforced, not only against the real estate upon which it 
 is a lien, but, as in this case, against the personal property 
 of the owner also; and by it he may just as much be de- 
 prived of his property, arid in the same sense, as the judg- 
 ment debtor is deprived of his b} T the judgment." (74 
 N. Y., 188 and 195.) We concur fully in the views thus 
 forcibly expressed. 
 
 It remains to consider the last position of counsel, that 
 the provisions of Article XIII. of the Constitution of the 
 State, as to the taxation of railroad property, are to be 
 treated as conditions upon the continued existence of rail- 
 road corporations. On the hearing this position seemed 
 to us to possess some force, but on careful consideration its 
 supposed force is dissipated. The argument is, that on 
 the original creation of the corporations the State might 
 have imposed any conditions whatever as to the manner 
 and the amount in which the property should be taxed; 
 that under the reserved power of amendment of the law 
 creating the corporations, the State could at any time after- 
 wards impose such a condition; that the new Constitu- 
 tion, in continuing the defendant and other railroad cor- 
 porations in existence, and at the same time authorizing 
 the taxation of their property upon a valuation different 
 from that at which the property of individuals is assessed, 
 imposed that condition upon them, and that the subse- 
 quent exercise of its franchises by the defendant implies 
 an assent to such condition. 
 
 There are two answers to this argument. In the first 
 place, Article XIII. is not intended to make any change 
 in the powers or rights of corporations under the laws of 
 the State. It treats entirely of revenue and taxation, and 
 of the rules which shall govern the assessment of the prop- 
 erty of individuals and of railroad and other quasi public 
 corporations. It is in another article that provisions are 
 made for the control of railroad corporations; and the 
 duties and responsibilities of corporations generally, and 
 the power of the State over them, are declared. 
 
48 
 
 In the second place, the State in the creation of cor- 
 porations, or in amending their charters, or rather in pass- 
 ing or amending general laws under which corporations 
 may be formed and altered, possesses no power to withdraw 
 them when created, or by amendment, from the guaranties 
 of the Federal Constitution. It cannot impose the con- 
 dition that they shall not resort to the Courts of law for 
 the redress of injuries, or the protection of their property; 
 that they shall make no complaint if their goods are plun- 
 dered and their premises invaded; that they shall ask no 
 indemnity if their lands be seized for public use, or be taken 
 without due process of law; or that they shall submit with- 
 out objection to unequal and oppressive burdens arbitrarily 
 imposed upon them; that, in other words, over them and 
 their property the State may exercise unlimited and irre- 
 sponsible power. Whatever the State may do, even with 
 the creations of its own will, it must do in subordination to 
 the inhibitions of the Federal Constitution. It may con- 
 fer by its general laws upon corporations certain capaci- 
 ties of doing business, and of having perpetual succession 
 in their members. It may make its grant in these respects 
 revocable at pleasure; it may make the grant subject to 
 modifications; and impose conditions upon its use, and 
 reserve the right to change these at will. But whatever 
 property the corporations acquire in the exercise of the 
 capacities conferred, they hold under the same guaranties 
 which protect the property of individuals from spoliation. 
 It cannot be taken for public use without compensation; 
 it cannot be taken without due process of law r ; nor can it 
 be subjected to burdens different from those laid upon 
 the property of individuals under like circumstances. 
 
 The State grants to railroad corporations formed under 
 its laws a franchise, and over it retains control, and may 
 withdraw or modify it. By the reservation clause it re- 
 tains power only over that which it grants; it does not grant 
 the rails on the road; it does not grant the depots along 
 side of it; it does not grant the cars on the track nor the 
 
49 
 
 engines which move them ; and over them it can exercise 
 no power, except such as may he exercised through its 
 control over the franchise, and such as may he exercised 
 with reference to all property used by carriers for the 
 public. The reservation of power over the franchise, that 
 is, over that which is granted, makes its grant a conditional 
 or revokable contract, whose obligation is not impaired 
 by its revocation or change. The Supreme Court estab- 
 lished in the Dartmouth College Case that the charter of a 
 private corporation is a contract between the corporators 
 and the State, and that it was, therefore, within the pro- 
 hibition of the Federal Constitution against the impair- 
 ment of contracts.. To avoid this result the States have 
 generally inserted clauses in their Constitutions reserving 
 a right to repeal, alter, or amend charters granted by their 
 Legislatures; or to repeal, alter, or amend the general 
 laws under which corporations are allowed to be formed. 
 The reservation relates only to the contract of incorpora- 
 tion, which without such reservation would be irrepeal- 
 able. It removes the impediment to legislation touching 
 the contract. It places the corporation in the same posi- 
 tion it would have occupied had the Supreme Court held 
 that charters are not contracts, and that laws repealing or 
 altering them did not impair the obligation of contracts. 
 The property of the corporation, acquired in the exercise 
 of its faculties, is held independently of sqch reserved 
 power; and the State can only exercise over it the con- 
 trol which it exercises over the property of individuals 
 engaged in similar business. 
 
 The case of Detroit vs. Detroit and Howell Plank Road 
 Company, in the Supreme Court of Michigan, is in point 
 on both of' the propositions stated. An act of the Legis- 
 lature of the State, amending the charter of the company, 
 required it to remove without the limits of the City of 
 Detroit a toll-gate on its road, then within the limits. The 
 effect of the act was to take from the company about two 
 and a half miles of its road, upon which it collected tolls. 
 
50 
 
 The act under which the company was incorporated re- 
 served a power in the Legislature to repeal and amend it 
 at any time, and the question was whether, under this res- 
 ervation, the Legislature could require the removal of the 
 toll-gate out of the city; and it was held that it could not. 
 Ordinarily a law requiring the removal of a toll-gate from 
 one place to another on a road would be a mere police reg- 
 ulation, but here it was something more; it deprived the 
 company of compensation for the use of its road within 
 the city limits, that is, for a large part of the travel over 
 it. The Court, speaking through Mr. Justice Cooley, ob- 
 served that there were cases in which amendments to 
 charters having some resemblance to this had been sus- 
 tained; and cited several which involved a mere police 
 regulation, such as requiring a railroad company to build 
 a station-house and stop its trains at a certain locality ; to 
 permit and provide for the crossing of its track; and to 
 unite with others in a common passenger station for trains 
 entering a city. "But," the Court added, " there is no 
 well-considered casein which it has been held that a Leg- 
 islature, under its power to amend a charter, might take 
 from the corporation any of its substantial property or prop- 
 erty rights. In some cases, the power has been denied 
 where the interest involved seemed insignificant. The 
 case of Albany, etc. R. 11. Co. vs. Brownell (24 N. Y., 345) 
 is an illustration. It was there decided that although the 
 Legislature might require railroad companies to suffer 
 highways to cross their tracks, they could not subject the 
 lands which the companies had acquired for other pur- 
 poses, to the same burden, except in connection with the 
 provision for compensation. The decision was in accord 
 with that in Co/nmonweaUh vs. Essex Co., (13 Gray, 239, 
 253,) in which, while the power to alter, amend, or repeal 
 the corporate franchises was sustained, it was at the same 
 time declared that i no amendment or alteration of the 
 charter can take away the property or rights which have 
 become vested under a legitimate exercise of the powers 
 
51 
 
 granted.' The same doctrine is clearly asserted in Rail- 
 road Company vs. Maine (96 U. S., 499), and is assumed 
 to be unquestionable in the several opinions delivered in 
 the Sinking Fund Cases (99 U. S., 700). 
 
 u But for the provision of the Constitution of the United 
 States, which forbids impairing the obligation of con- 
 tracts, the power to amend and repeal corporate charters 
 would be ample without being expressly reserved. The 
 reservation of the right leaves the State where any sover- 
 eignty would be, if unrestrained by express constitutional 
 limitations and with the powers which it would then pos- 
 sess. It might, therefore, do what it would be admissible 
 for any constitutional government to do when not thus re- 
 strained, but it could not do what would be inconsistent 
 with constitutional principles. And it cannot be neces- 
 sary at this day to enter upon a discussion in denial of the 
 right of the Government to take from either individuals 
 or corporations any property which they may rightfully 
 have acquired. In the most arbitrary times such an act 
 was recognized as pare tyranny, and it has been forbidden 
 in England ever since Magna Charta, and in this country 
 always. It is immaterial in what way the property was 
 lawfully acquired, whether by labor in the ordinary avo- 
 cations of life, by gift or descent, or by making profitable 
 use of a franchise granted by the State, it is enough that 
 it has become private property, and it is then protected by 
 the < law of the land.' " (43 Mich., 140-147.) 
 
 We have already extended this opinion to a great length, 
 and we do not think it necessary or important to notice 
 other positions urged by counsel, with great learning and 
 ability, against the validity of the y taxes for which the 
 present action is brought. We are satisfied that the assess- 
 ment, upon which they were levied, is invalid and void, 
 and judgment must be accordingly entered on the de- 
 murrer for the defendant, and, by stipulation of parties, 
 the judgment must be made final. 
 
52 
 
 CONCURRING OPINION SAWYER, Circuit Judge. 
 
 SAWYER, Circuit Judge. The facts of this case are fully 
 stated by Air. Justice Field, and need not be repeated here. 
 The questions presented are of the gravest character, and 
 of the utmost importance to the people of California. 
 While I concur, generally, in the conclusions, and in the 
 line of argument adopted by my associate, I shall also 
 state as briefly as I reasonably can, considering the gravity 
 of the questions discussed, my conclusions upon the points 
 involved. 
 
 1. In my judgment, the word " person," in the clause of 
 the Fourteenth Amendment to the National Constitution, 
 " ~No State shall . . . . deprive any person of life, 
 liberty, or property, without due process of law, nor deny 
 to any person the equal protection of the law," includes a 
 private corporation. It must,, at least, through the corpo- 
 ration include the natural persons, who compose the cor- 
 poration, and who are the beneficial owners of all the 
 property, the technical and legal title to which is in the cor- 
 poration, in trust for the orporators. The fact that the cor- 
 porators are united into an ideal legal entity, called a cor- 
 poration, does not prevent them from having a right of 
 property in the assets of the corporation, which is entitled 
 to the protection of this clause of the Constitution. Nor does 
 the intervention of this artificial being between the real ben- 
 eficial owners and the State, for the simple purpose of con- 
 venient management of the business, enable the State, by 
 acting directly upon the legal entity, to deprive the real par- 
 ties beneficially interested of the protection of these im- 
 
53 
 
 portant provisions. In the language of Mr. Pomeroy, one of 
 the counsel, which I adopt: " Whatever be the legal nature 
 of a corporation as an artificial, metaphj^sic'al being, sepa- 
 rate and distinct from the individual members, and what- 
 ever distinctions the common law makes,, in carrying 
 out the technical legal conception, between property of 
 the corporation and that of the individual members, 
 still, in applying the fundamental guaranties of the Con- 
 stitution, and in thus protecting rights of property these 
 metaphysical and technical notions must give way to the re- 
 ality. The truth cannot be evaded that, for the purpose of 
 protecting rights, the property of all business and trading cor- 
 porations is the property of the individual corporators. A 
 State act depriving a business corporation of its prop- 
 erty without due process of law does, in fact, deprive the 
 individual corporators of their property. In this sense, and 
 within the scope of these grand safeguards of private 
 rights, there is no real distinction between artificial per- 
 sons, or corporations, and natural persons." 
 
 This principle is recognized, and the question settled for 
 all time in an early case by Chief Justice Marshall, in 
 which he says: "Aliens, or citizens of different States, are 
 not less susceptible of these apprehensions, nor can they 
 be supposed to be less the objects of constitutional pro- 
 visions, because they are allowed to sue by a corporate 
 name. That name, indeed, cannot be an alien, or a citi- 
 zen; but the persons whom it represents may be the 
 one or the other; and the controversy is, in fact and in 
 law, between those persons suing in their corporate character 
 by their corporate name for a corporate right, and the 
 individuals against whom, the suit may be instituted. Sub- 
 stantially and essentially the parties in such a case, where 
 the members of the corporation are aliens or citizens of 
 a different State from the opposite party, come within the 
 spirit arid terms of the jurisdiction conferred by the 
 Constitution on the national tribunals." (Bank U. S. 
 vs. Deveaux, 5 Cr., 87.) It is upon this principle that the 
 
54 
 
 National Courts have ever since entertained jurisdiction, 
 on the ground of citizenship, of the corporators in cases 
 wherein corporations are the parties to the record. The 
 cases in the Supreme Court upon this point are numerous, 
 and too familiar to require further citation. In Society, 
 etc. vs. New Haven, (8 Wheat., 464-489,) it was held that a 
 corporation was protected under the Sixth Article of the 
 Treaty with England of 1783, which reads: "There shall 
 he no confiscations made, nor any prosecutions com- 
 menced against any person or persons for or by reason of 
 the part which he, or they, may have taken in the pres- 
 ent war, and that no person shall, on that account, suffer 
 any future loss or damage, either in person, liberty, or 
 property," etc. The word "person," in the Civil Rights 
 Act of Congress of April 20th, 1870, (17 Stat, 13,) "was 
 held on the circuit to include a corporation. (North West 
 Pert. Co. vs. Hyde. Park, 3 Biss., 481.) In Railroad Com- 
 pany vs. Richmond (96 U. S., 529) the Supreme Court as- 
 sumes that a corporation is included in the word " person," 
 as thus used in the Fourteenth Amendment. 
 
 The word "person " is, unquestionably, much broader 
 in its signification than the word " citizen," and the change 
 from the word " citizen," in the first clause of the section, 
 to the word "person," of so much larger import in the 
 last, must have been well considered; and have been in- 
 tended to extend the shield of the Constitution to all cases 
 which might require the protection of this wholesome and 
 greatly needed guaranty. There is nothing in the context 
 to indicate a purpose to limit the meaning of the word 
 person to a narrower sense than the word ordinarily and 
 naturally imports; or to make the application of the pro- 
 vision partial only. To' -exclude corporations from its im- 
 port, would be to leave, perhaps, at this day, the far larger 
 portion of the vast capital of the country employed in 
 great enterprises, either commercial, manufacturing, min- 
 ing, or otherwise, beyond the pale of its protection. There 
 is no good reason for excluding the property of corpora- 
 
55 
 
 lions from the same protection extended to other property. 
 It is subject to all the burdens, and it should be entitled to all 
 the immunities of other property. It is, at last, the prop- 
 erty of natural persons. The provision is protective and 
 remedial, not punitive in character, and should, therefore, 
 be liberally, not strictly, construed. No restriction should 
 be put upon the term not called for by the exigencies of 
 the case, or by the pujblic interests; and it must be man- 
 ifest that the public interest requires that the broadest 
 signification should be adopted. Blackstone treats of cor- 
 porations under the head of Rights of Persons, chapter 
 XVIIL, under this head, being devoted to the subject. 
 He says: " Persons, also, are divided by law into either 
 natural persons or artificial," giving a definition of each. 
 (Book L, 123.) So, also, does Kent, (2 vol., 316). In 
 United States vs. Amedy, (11 Whcaton, 412,) wherein a 
 person was indicted, under an act of Congress, for destroy- 
 ing a vessel belonging to a corporation, the Supreme 
 Court held, that a corporation is a person within the mean- 
 ing of the act. The court, among other things, says: 
 " The mischief intended to be reached by the statute is 
 the same, whether it respects private or corporate per- 
 sons. That corporations are in law, for civil purposes, deemed 
 persons is unquestionable" And the court in this case 
 holds the same for criminal purposes also; and in crimi- 
 nal cases statutes are strictly construed. So in regard to 
 the provisions of the Fourteenth Amendment under con- 
 sideration, " the mischief intended td be reached" by the 
 amendment " is the same, whether it respects private or cor- 
 porate persons" (See also cases cited in the opinion.) 
 The authorities to a similar effect are numerous. (See as 
 examples People vs. Ins. Co., 15 John., 588; Planters' Bank 
 vs. Andrews, 8 Porter, 404; Kyd. on Corp., 15; Douglass 
 vs. Pacific Mail Steamship Co., 4 Cal., 304; State vs. Nash- 
 ville University, 4 Humph., 166.) There are many other 
 cases affording support, more or less direct, to this view. 
 In Insurance Co. vs. New Orleans, (1 Woods, 85,) it was 
 held on the circuit that a corporation is not embraced in 
 
.56 
 
 the word "person/' as used in the amendment under con- 
 sideration, and the Supreme Court of California, upon the 
 authority of that case, made a similar ruling in Central 
 Pacific Railroad Co. vs. The State Board of Equalization, (8 
 Pacific Law Journal, 1155.) But notwithstanding their 
 high character for ability, and my respect for the decisions 
 of the judges taking that view, I am compelled to adopt a 
 different conclusion. I think, both upon reason and au- 
 thority, that the other is the better view. Again, with re- 
 spect to corporate property, I adopt the language of coun- 
 sel, which expresses my view accurately and clearly: " The 
 property of the corporation is in reality the property of its in- 
 dividual corporators. A State statute depriving a corpora- 
 tion of its property does deprive the individual corporators 
 of their property. These clauses of the Fifth and Four- 
 teenth Amendments, and the similar clauses of the 
 State Constitution, apply, therefore, to private corpora- 
 tions, not alone because such corporations are " persons," 
 within the meaning of that word, but also because statutes 
 violating their prohibitions in d.ealing with corporations must 
 necessarily infringe upon the rights, of natural persons. In 
 applying and enforcing these constitutional guaranties, 
 corporations cannot be separated from the natural persons who 
 compose them." 1 " 1 It is upon this principle that the de- 
 cision in Dodge vs. Woolsey, (18 How., 331,) rests, which 
 establishes the right of stockholders to maintain a suit 
 against the directors of the corporation and State officers 
 to restrain the payment by the one, and the collection by 
 the other, of a tax illegally assessed against the corpora- 
 tion. See, also, Marshall vs. Baltimore $ Ohio Railroad Co., 
 (16 How., 327.) But a corporation itself is, in my judg- 
 ment, a " person," within the meaning of the constitu- 
 tional provision in question. Such has been the ruling in 
 all cases under statutes containing the word " person," 
 unless the context clearly indicated a more limited sig- 
 nification. 
 
 2. I shall not spend much time in 'discussing the ques- 
 tion whether the Fourteenth Amendment applies only to 
 
57 
 
 the African race. Undoubtedly, the negro furnished the 
 immediate occasion and motive for the adoption of the 
 amendment; but its benefits could not have been intended 
 to be limited to the negro. The protection afforded is as 
 important to others as to him, as is clearly shown by ex- 
 perience under this provision. A whole race, not Afri- 
 can, large numbers of whom came to our shores under the 
 solemn guaranties of stipulations in a treaty suggested 
 and sought, and in great part framed by ourselves, to pro- 
 mote our then supposed interests, were among the first to 
 invoke this very provision of the Fourteenth Amendment, 
 to protect them, under the word " person," in the right to 
 earn an honest living, by honest labor; and its protecting 
 power was not invoked in vain. (ParrotVs Chinese Case, 
 6 Saw., 349 ; In re Ah Chong ; Chinese Fisherman Case, 6 
 Saw., 451.) Who, in view of past experience, shall say 
 there was no occasion to extend the signification of the 
 word, person, beyond the negro ? And are all other 
 races, including our own, to be now withdrawn from its 
 protecting power by so narrow and unnatural a construc- 
 tion ? I apprehend not. If the line cannot be drawn at 
 the negro, then no other can be adopted, that will not 
 embrace every human being in his individual character, 
 or in his legal association with his fellows for the more 
 convenient administration of his property, and more suc- 
 cessful pursuit of happiness. I apprehend that it would 
 have struck the world with some astonishment, when this 
 amendment was proposed to the people of the United States 
 for adoption, if it had read: "Nor shall any State deprive 
 any person of the negro race of life, liberty, or property, 
 without due process of law; nor deny to any person of 
 the negro race within its jurisdiction the equal protection 
 of the laws." Yet so it must, in effect, be read if its op- 
 eration is to be limited to that race. The rights of the ne- 
 gro are, certainly, no more sacred or worthy of protection 
 than the rights of the Caucasian or other races; and the 
 security of the rights of corporations, and, through them, 
 
 5 
 
58 
 
 the rights of the real parties the corporators is as of 
 great public importance as the security of any other pri- 
 vate interests. 
 
 3. Does the assessment in question, made in strict pur- 
 suance of the provisions of the Constitution of California, 
 violate that clause of the Fourteenth Amendment of the 
 National Constitution, which says, that no State " shall 
 deprive any person of life, liberty, or property, without due 
 process of law ? " The provision of the State Constitu- 
 tion under which the assessment was made is as follows: 
 " The franchise, roadway, road-bed, rails, and rolling-stock 
 of all railroads operated in more than one county in this 
 State, shall be assessed by the State Board of Equalization 
 at their actual value, and the same shall be apportioned 
 to the counties, cities and counties, cities, towns, townships, 
 and districts, in which such railroads are located, in pro- 
 portion to the number of miles of roadway laid in such 
 counties, cities and counties, cities, towns, townships, and 
 districts." This is the only provision affecting this ques- 
 tion. To take one's property by taxation is to take or de- 
 prive one of his property; and if not taken in pursuance 
 of the law of the land in some due and recognized course 
 of proceedings, based upon well recognized principles in 
 force before, and at the time this clause was first intro- 
 duced into the various Constitutions and the legislation 
 of the country is to take it " without due process of law." 
 The signification of these words has been the subject of ju- 
 dicial consideration and discussion in a vast number of 
 cases; and their import has been determined to be the 
 same as that of equivalent phrases in Magna Charta, from 
 which the principle adopted was derived. 
 
 I shall not attempt to -give an accurate definition of the 
 terms, " due process of law," applicable to all cases. It 
 is not necessary for the determination of this case to do so. 
 It is enough to say, that it has been settled by judicial de- 
 cision, as I think, that whether the proceeding be judicial, 
 administrative, or executive, if it affects life or liberty, or 
 
59 
 
 takes property directly, or imposes a charge which be- 
 comes the basis of taking property, some kind of notice, 
 or opportunity to be heard on his own behalf and to de- 
 fend his rights, given to the person whose life or liberty 
 is to be affected, or whose property is to be taken or bur- 
 dened with the liability, is an indispensable element an 
 essential ingredient of " due process of law." No one, 
 I apprehend, would for a moment contend, that a man's 
 life, or his liberty, could be legally taken away, without 
 notice of the proceeding, or without being offered an oppor- 
 tunity to be heard; or that a proceeding whereby his life 
 or liberty should be forfeited, or permanently affected, 
 without notice or opportunity to be heard in his own de- 
 fence, could, by any possibility, be by " due process of 
 law." In such cases there could be no just conception of 
 " due process of law," that would not embrace these ele- 
 ments of notice and opportunity to be heard. Any con- 
 ception excluding these elements would be abhorrent to 
 all our ideas of either law or justice. If these elements 
 must enter into and constitute an essential part of due 
 process of law, in respect to life and liberty, they must 
 also constitute essential ingredients in due process of law 
 where property is to be taken; for the guaranty in the 
 Constitution is found in the same provision, in the same 
 connection, and in the identical language applicable to all. 
 One meaning, therefore, cannot be attributed to the phrase, 
 with respect to property, and another with respect to life 
 and liberty. 
 
 Having stated the principle, which I conceive to be es- 
 tablished by an unbroken line of authorities, I shall refer 
 to some of them. One of the latest and most instructive 
 cases upon the subject, was recently decided by the Court 
 of Appeals of the State of New York, from which I shall 
 extract a passage, which I adopt, as expressing my own 
 views, and presenting the question in a very clear and 
 satisfactory light. It involved the validity of an assess- 
 ment for a public street improvement, and but one ques- 
 
60 
 
 tion, which was decisive of the case, was examined or de- 
 termined. The question was, as to the validity of the law 
 under which the assessment was made. The Court, by Mr. 
 Justice Earl, says; " The latter assessment could be made 
 without any notice to, or hearing of, any person. The law 
 requires no notice, and a provision for notice cannot be 
 implied. Upon the assumption that the law was valid, 
 there was ample authority for the Commissioners to make 
 the assessment without any notice or hearing." ( Stuart 
 vs. Palmer, 74 K Y., 186.) The Judge proceeds: " I am 
 of the opinion that the Constitution sanctions no law im- 
 posing such an assessment without a notice to and a hear- 
 ing, or an opportunity of a hearing by the owners of the 
 property to be assessed. It is not enough that the owners 
 may by chance have notice, or that they may, as a matter of 
 favor, have a hearing. The law must require a. notice to them 
 and give them a right to a hearing, and an opportunity to be 
 heard. It matters not upon the question of the constitu- 
 tionality of such a law, that the assessment has in fact been 
 fairly apportioned. The constitutional validity of a law is 
 to be tested, not by what has been done under it, but what may, 
 by its authority, be done. The Legislature may prescribe 
 the kind of notice, and the mode in which it shall be 
 given but it cannot dispense with all notice. (Ib., 188.) 
 # # * # 
 
 "The Legislature can no more arbitrarily impose an as- 
 sessment for which property may be taken or sold than it 
 can render a judgment against a person without a hearing. 
 It is a rule founded on the first principles of natural 
 justice, older than 'written constitutions, that a citizen 
 shall not be deprived of his life, liberty, or property 
 without an opportunity to be heard in defence of his 
 rights, and the constitutional provision that no person 
 shall be deprived of these without due process of law, 
 has its foundation in this rule. This provision is the most 
 important guaranty of personal rights to be found in the Fed- 
 eral or State Constitutions. It is a limitation upon arbi- 
 
61 
 
 trary legislation. No citizen shall arbitrarily be deprived 
 of his life, liberty, or property. This the Legislature 
 cannot do nor authorize to be done. 'Due process of 
 law' is not confined to any judicial proceedings, but ex- 
 tends to every case which may deprive a citizen of his 
 life, liberty, or property, whether the proceeding be ju- 
 dicial, administrative, or executive in its nature. This 
 great guaranty is always and everywhere present to pro- 
 tect the citizen against arbitrary interference with these 
 sacred rights." (Ib.,'l90.) * * * 
 
 " No case, it is believed, can be found in which it was 
 decided that the constitutional guaranty did not extend to 
 cases of assessments, and yet we may infer from certain 
 dicta of Judges that their attention was not called to it, or that 
 they lost sight of it in the cases which they were considering. 
 It has sometimes been intimated that a citizen is not de- 
 prived of his property, within the meaning of this con- 
 stitutional provision, by the imposition of an assessment. 
 It might as well be said that he is not deprived of his 
 property by a judgment entered against him. A judg- 
 ment does not take property until it is enforced, and then 
 it takes the real or personal property of the debtor. So 
 an assessment may generally be enforced, not only 
 against the real estate upon which it is a lien, but, as in 
 this case, against the personal property of the owner also, 
 and by it he may just as much be deprived of his 
 property, and in the same sense, as the judgment debtor 
 is deprived of his by the judgment." (Ib., 195.) 
 
 Much more is worth quoting, but it would extend this 
 opinion to an unreasonable length. 
 
 Thus, it is determined in the case cited, that a party is 
 not only entitled to notice and an opportunity to be heard, 
 but that the law, or Constitution itself, must expressly pro- 
 vide for notice. This decision was approved by the Su- 
 preme Court of California in October last, in Mulligan vs. 
 Smith, involving the validity of a tax. (8 Pacific Law Jour- 
 nal, 499.) Said McKinstry, ,L: " In my opinion, the stat- 
 
62 
 
 ute provides no notice or process by means of which the 
 property-owners can be subjected to the judgment of 
 the County Court. The act is, therefore, void;" citing 
 Stuart vs. Palmer, supra; Cooley on Taxation, 266, and 
 other cases; and McKee, J., in the same case, said: " It 
 is a principle which underlies all forms of government 
 by laws, that a citizen shall not be deprived of life, lib- 
 erty, or property without due process of law. The Leg- 
 islature has no power to take away any man's property, 
 nor can it authorize its agents to do so, without first pro- 
 viding for personal notice to be given to him, and for a full 
 opportunity of time, place, and tribunal, to be heard in defence 
 of his rights. This constitutional guaranty is not confined 
 to judicial proceedings, but extends to every case in which a 
 citizen may be deprived of life, liberty, or property, whether 
 the proceeding be judicial, administrative, or executive in its 
 nature." 
 
 In Patten vs. Green, (13 Cal., 329,) Mr. Justice Baldwin, 
 all the Justices, including Mr. Justice Field, concurring 
 in the opinion, said: " We think it would be a dangerous 
 precedent to hold that an absolute power resides in the 
 Supervisors to tax land as they may choose, without giving 
 any notice to the owner. It is a power liable to great abuse. 
 The general principles of law applicable to such tribu- 
 nals oppose the exercise of any such power." The raising 
 of the tax by the Board of Equalization was held void for 
 want of notice. Mr. Webster, in the Dartmouth College 
 Case, defined due process of law, or " the law of the 
 land," as "the general law, which hears before it con- 
 demns, which proceeds upon inquiry, and renders judg- 
 ment only after trial." He adds: " Every thing which 
 may pass under the form of an enactment is not-' the law 
 of the land.' " 
 
 In Cooper vs. Board of Works, (108 Eng. C. L. R., 181,) 
 in which was in question the action of the Board of Pub- 
 lic Works, in pursuance of a statute which did not require 
 
63 
 
 notice, Wi lies, J., said: "I apprehend that a tribunal, 
 which is by law invested with power to affect the property 
 of one of Her Majesty's subjects, is bound to give 
 such subject an opportunity of being heard before it 
 proceeds. And that that rule is of universal application, 
 and founded upon the plainest principles of justice." In 
 the same case, Byles, J., said: " The judgment of Mr. 
 Justice Fortescue, in Dr. Bentley's case, is somewhat 
 quaint, but is very applicable, and has been the law from 
 that time to the present." He says: " The objection for 
 want of notice can never be got over. The laws of God 
 and man both give the party an opportunity to make his 
 defence, if he has any. I remember to have heard it ob- 
 served by a very learned man, upon such an occasion, that 
 even God himself did not pass sentence upon Adam be- 
 fore he called upon him to make his defence. 'Adam, 
 where art thou ! Hast thou not eaten of the tree whereof 
 I commanded thee that thou shouldest not eat? ' " (See, 
 also, Philadelphia vs. Miller, 49 Pa., 448; Matter of Ford, 
 6 Lans., 92; Overing vs. Foote, 65 K Y., 263; Wester celt vs. 
 Gregg, 12 K Y., 209; Cooley Const. Lim., 355; Butler vs. 
 Sup. Sag., 26 Mich., 22, 29; Sedgwick's Stat. and Consti- 
 tutional Construction, Pomeroy's Ed., 474, et seq., and 
 notes; Cooley on Taxation, 266, 267.) 
 
 In Davidson vs. New Orleans, (96 U. 8., 97,) it was not 
 questioned, but assumed, that the party taxed must have 
 an opportunity to be heard, and decided upon that theory. 
 
 In my judgment, the authorities establish, beyond all 
 controversy, that somewhere in the process of assessing 
 a tax under a law, or a State Constitution, at some point 
 before the amount of the assessment becomes finally and 
 irrevocably fixed, the statute, or the State Constitution, 
 must provide for notice to be given to the owner of the 
 property taxed, and an opportunity be afforded to make 
 objections and to be heard upon them. In some form or 
 manner, he must be afforded an opportunity to defend 
 his interests.. In this case the Constitution makes no pro- 
 
64 
 
 vision for notice or a hearing, and the answer alleges that 
 there was none, which is admitted by the demurrer. 
 
 4. On behalf of the plaintiff, what purports to be a stat- 
 ute passed March 14,1881, (Statutes 1881-83,) is cited, 
 which, itis insisted, supplements the Constitution, and pro- 
 vides for a notice and hearing upon a petition filed within 
 five days after the assessment is made upon a railroad. 
 But it is claimed, that, although published in the volume 
 of statutes for the year 1881, as a statute, the bill never 
 constitutionally passed, and that it is, consequently, no law. 
 Section 15 of Article IV. of the Constitution of Califor- 
 nia provides, that " on the final passage of all bills they 
 shall be by yeas and nays upon each bill separately, and 
 shall be entered on the journals, and no bill shall become a 
 law without the concurrence of a majority of the members elected 
 to each house" Under section 5 of the same article the 
 House consists of eighty members, of whom it would re- 
 quire forty-one to constitute a majority of the members 
 elected to the House. Upon reference to the published 
 journals of the Legislature, it appears that the bill in ques- 
 tion passed the House and was sent to the Senate, where 
 it was amended by adding a long provision, being the very 
 provision, if any there is, which gives the owners of rail- 
 roads of the class in question, dissatisfied with the assess- 
 ment, a right to file a petition, " within five days after the 
 assessment is made and entered of record on the books of 
 the board," to have the assessment corrected, and provid- 
 ing for proceedings upon said petition. On March 4, the 
 House considered the Senate amendment, and upon a call 
 of the yeas and nays, as required by the Constitution, 
 thirty-nine members voted for the amendment, and thirty-two 
 against it, their being -four paired and not voting; thus 
 the votes in favor of the amendment were two less than 
 a majority of members elected to the House, and the bill 
 failed. It does not appear that the bill " was read at length." 
 The Speaker declared that this was not the final action of 
 the House, and that the amendment concurred in by a vote 
 
65 
 
 of 39 yeas to 32 nays, was adopted. An appeal having 
 been taken from this decision of the chair, it was after- 
 wards laid upon the table. Thereupon two members filed 
 each a separate protest against the decision of the Speaker, 
 and the certificate that the bill had passed, on the expressed 
 ground, that it did not receive the vote of a majority of 
 the members elected to the House. All this appears upon 
 the journal. If this was not the final action of the House, 
 then, as there was no further action, the act never finally 
 passed, even by the numbers indicated. (Assembly Jour- 
 nal, 24th Session, p. 472-5.) 
 
 The bill, therefore, never was constitutionally passed, 
 and never became a law. "Whether the bill became a law 
 is a question of law of which the Court will take judicial 
 notice. (Sherman vs. Storey, 30 Cal., 253; Ottawa vs. Per- 
 kins, 94 U. S., 268; Gardner vs. The Collector, 6 Wall., 
 509-10; Post vs. Supervisors, 105 U. S.) Under the de- 
 cisions of the Courts upon constitutional provisions, in 
 all respects similar to that in the present Constitution of 
 California, it is settled, that the Court, to inform itself, 
 will look to the journals of the Legislature. So the Su- 
 preme Court of the United States holds where it is so de- 
 cided by the State Courts in construing their own Consti- 
 tutions and laws. (See cases last cited.) I am not aware 
 of any decision of the Supreme Court of California giv- 
 ing a different construction to the State Constitution as it 
 now stands. Unless this mode is adopted of resorting to 
 the journals to ascertain whether a statute has been legally 
 passed or not, experience, and the number of cases that 
 have already arisen under similar constitutional provisions, 
 demonstrate, that the requirement of the. Constitution, 
 that the vote shall be taken by yeas and nays, and a ma- 
 jority of the members required to vote in the affirmative 
 on the final passage of an act, would be of little avail. 
 "While we think the case of Sherman vs. Storey correctly 
 decided under the Constitution as it then was, we are of 
 the opinion that the change in the Constitution requires a 
 
66 
 
 change in the rule. When California adopted from other 
 States the provision now found in its Constitution, sub- 
 stantially as found in the Constitution of Illinois, it must 
 be deemed to have adopted with the provision the settled 
 construction put upon it by the Courts of the State from 
 which it was taken. The leading cases upon the point 
 are Spongier vs. Jacoby, 14 111., 278; Prescott vs. Board of 
 Trustees, c., 19 111., 326; Osborn vs. Staley, 5 West.Vir., 
 89, and the cases cited in Sherman vs. Storey, and in 
 those from the United States Supreme Court. In this 
 case there is something more than an omission in the 
 journals, for it affirmatively appears what the vote was, 
 and that the bill did not pass by the vote required by the 
 Constitution. 
 
 Statutory provisions also have been adopted, which ap- 
 pear to be designed to give effect to this change in the 
 Constitution. Section 255 of the Political Code requires 
 the Minute Clerks of the Senate and Assembly to " keep 
 a correct record of the proceedings of their respective 
 Houses." And sections 256 and 257 require the daily 
 proceedings to be recorded in the journals, and that they 
 " must be read by the Secretary each day of meeting, and 
 then be authenticated by the signatures of the President 
 and Speaker of the respective Houses." Section 1,875 of the 
 Code of Civil Procedure provides that" Courts take judi- 
 cial notice of the following facts. . . . Public and private 
 official acts of the legislative, executive, and judicial depart- 
 ments of this State arid of the United States," etc. . . . " In 
 all these cases the (Jourt may resort for its aid to appropriate 
 books or documents of reference." Section 1,888 provides 
 that " Public writings are: 1. The written acts or records 
 of the acts of the sovereign authority of official bodies and 
 tribunals, and of public officers, legislative, judicial, and 
 executive, whether of this State or of the United States," 
 etc. And section 1,918 provides that " official documents 
 may be proved as follows: .... 2. "The proceedings of 
 the Legislature of this State, and of Congress, by the jour- 
 
67 
 
 mils of those bodies respectively, or either House thereof, 
 or by published statutes or resolutions." Thus the jour- 
 nals of the Legislature are put upon the same footing as 
 the statutes. We think there can be no doubt, under the 
 Constitution of the State, and these statutes, that we may 
 look to the journals to see what action was in fact had 
 with respect to any apparent law, as published in the vol- 
 umes of the statutes of the State; and looking to the jour- 
 nals, it affirmatively appears that the act upon the statute 
 book in question never did become a law. 
 
 Even if the act had passed, it is at least extremely 
 doubtful whether the notice, or time for filing the peti- 
 tion, is sufficiently definite to be of any effect. The as- 
 sessment, under the provision, might be made even if 
 the party is bound to notice the state of the record on the 
 first Monday of May the five days might elapse, and the 
 assessment be transmitted to the county before the party 
 assessed would know, under the law, that it had been 
 made. All the acts of assessment may have transpired 
 and the assessment become final, before the first Monday 
 of May. The Board, however, is not required to make it 
 before that day, although it might do so, and the party 
 assessed can scarcely be expected to watch its proceedings, 
 from day to day, before the time fixed by the law. 
 
 There being, then, no such statute as is relied on in 
 existence, the validity of the assessment must rest alone 
 upon the constitutional provision quoted, and the act of 
 1880, adding sections 3,664 and 3,665 to the Political 
 Code; and neither provides for notice of any kind, or for 
 an opportunity to be heard in any stage of the proceed- 
 ings. It was, therefore, made without due process of law, 
 as we understand the meaning of that provision as used in 
 the Fourteenth Amendment in question. 
 
 Section 3,664 of the Political Code, as adopted in 1880, 
 requires the president, or some other designated officer of 
 the class of corporations in question, to furnish the State 
 Board of Equalization, on or before the first Monday of 
 
68 
 
 April in each year, a detailed statement of the whole 
 number of miles of road operated, the number of cars, 
 amount of rolling-stock, and their value, the gross earn- 
 ings, and various other particulars; and requires the said 
 Board, on or before the first Monday in May, to assess 
 the franchise, roadway, road-bed, rails, and rolling-stock. 
 It is urged on the part of the plaintiff, that this provision 
 furnishes sufficient notice and opportunity to be heard, to 
 constitute due process of law on this point, within the 
 meaning of the constitutional provision. In our judg- 
 ment, this position is clearly untenable. This is simply a 
 mode adopted for obtaining information as to the amount 
 and general value of the property of the corporation, as a 
 basis, in part, at least, for their future consideration and 
 action in making the assessment. It is but a preliminary 
 step, and not the assessment, or any part of the assess- 
 ment. The Board is under no obligation to adopt, either 
 the statement as to what the property is, or its value. It 
 may reject it altogether and adopt an entirely different 
 basis. The party interested is entitled, at some point of 
 the proceeding, to know what action the Board takes or 
 proposes to take, and to an opportunity to be heard, as to 
 its propriety, before the assessment becomes fixed and 
 irrevocable. Other classes of property-holders, also, are 
 required to file a statement of their property under oath; 
 yet in the scheme provided for their assessment an oppor- 
 tunity to be afterwards heard is provided for. 
 
 The Constitutions of the State and. Nation provide 
 that private property shall not be " taken for public use 
 without just compensation." When parties cannot agree, 
 there must be some mode provided for ascertaining the 
 value of property so proposed to be taken for public use, 
 under the sovereign right of eminent domain. Suppose 
 a statute should provide a Board, or even a Court, to 
 assess the value of property proposed to be taken under 
 this power, for railroad purposes, or other public use, 
 and should give the owner of the property no notice or 
 
opportunity to be heard, other than to require him at 
 some time, say a month anterior to the consideration and 
 determination of the amount to he paid, to furnish such 
 Board or Court a similar statement as to the description 
 and value of the property to that required hy section 
 3,664, which the party might do or omit to do; would a 
 subsequent ex-parte determination of the value by the 
 Board or Court be in pursuance of due process of law 
 within the meaning of the Constitution ? I apprehend 
 that no Court would sustain such a proceeding. I also 
 think, that a taking for the purposes of taxation under 
 such an assessment, without notice or opportunity to be 
 heard, would be equally without the protection of due 
 process of law, and equally void. 
 
 The State Supreme Court has held the provision in the 
 Constitution of California, authorizing the State Board of 
 Equalization to assess finally the railroads of the class 
 in question, to be self-executing, requiring no legislation 
 of any kind to carry it into full effect; also, that the pro- 
 vision is mandatory. ( San Francisco and North Pacific 
 R. R. Co., 8 Pacific Law Journal, 1061.) 
 
 It is insisted by defendant that, this being so, it is incom- 
 petent for the Legislature to add or take from the require- 
 ments found in the Constitution, and that the additional 
 provision of section 3,664, as adopted in 1880, is void. 
 The view already expressed upon the section renders it 
 unnecessary now to determine that question, although 
 presented by the record and argued by counsel. It would 
 seem, however, that there can be no constitutional objection 
 to legislating upon'details for the purpose of more effectu- 
 ally carrying out the scheme of the Constitution, so far as 
 the legislation is not inconsistent with any of its provis- 
 ions. It is a general rule that a State Legislature has all 
 legislative power not inhibited by the Constitution, State 
 or National. ( Southern 'Pacific Railroad Co. vs. Orton } 6 
 Saw., 186.) 
 
 This being so, it would seem that the Legislature might 
 supplement the constitutional provision by statutory pro- 
 
70 
 
 visions, intended to more perfectly protect the rights of 
 the parties by other safeguards, which are not inconsistent 
 with the constitutional provision. But as this is a question 
 more properly belonging to the State Courts, we do not 
 deem it desirable to finally determine it now. 
 
 5. Is the provision of the State Constitution, under 
 which the assessment in question was made, in conflict 
 with the provision of the Fourteenth Amendment to the 
 National Constitution, which provides that no State " shall 
 deny to any person the equal protection of the law " ? The 
 Circuit Justice has discussed this question so fully and 
 satisfactorily that I shall have little to add. The provision 
 is: " A mortgage, deed of trust, contract, or other obliga- 
 tion by which a debt is secured, shall, for the purposes 
 of assessment and taxation, be deemed and treated as an 
 interest in the property affected thereby. Except as to 
 railroad and other quasi public corporations, in case of debts 
 so secured, the value of the property affected by such 
 mortgage, deed of trust, contract, or obligation, less the 
 value of such security, shall be assessed to the owner of 
 the property, and the value of such security shall be as- 
 sessed and taxed to the owner thereof, jn the county, city, or 
 district in which the property affected thereby is stituate. 
 The taxes so levied shall be a lien upon the property and 
 security, and may be paid by either party to such secur- 
 ity; if paid by the owner of such security, the tax so 
 levied upon the property affected thereby shall become 
 a part of the debt so secured; if the owner of the prop- 
 erty shall pay the tax so levied on such security, it shall 
 constitute a payment thereon, and to the extent of such 
 payment a full discharge thereof; provided, that if any 
 such security or indebtedness shall be paid by any such 
 debtor or debtors, after assessment and before the tax 
 levy, the amount of such levy may likewise be retained 
 by such debtor or debtors, and shall be computed accord- 
 ing to the tax levy for the preceding year." 
 
 Whatever the property, then, real or personal, mortgaged 
 to secure a debt, the value of the debt so secured, in the 
 
71 
 
 case of everbody except " a railroad and other quasi public 
 " corporation" is to be deducted from tbe value of the 
 property mortgaged, and the value only of the property 
 mortgaged, " less the value of such security, shall be as- 
 sessed and taxed to the owner of the property, and the 
 value of such security shall be assessed and taxed to the 
 owner thereof." That is to say, that, whatever the prop- 
 erty, it shall be taxed to the real owner. But in the case 
 of " a railroad or other quasi public corporation," there is 
 to be no reduction of the value of the mortgaged property, 
 and the whole is to be taxed to one party, whether he 
 owns the whole or not. In one case, if property is mort- 
 gaged to the extent of half its value, the owner is assessed 
 upon one-half the value, and the owner of the debt se- 
 cured is taxed upon the other half. But in the other case, 
 the owner of the legal title to the property is assessed 
 and taxed upon the whole value of the property, and 
 the other party, who is interested to the extent of one- 
 half, upon none. A, a natural person, has fifty thousand 
 dollars in cash all the property he has and purchases of 
 33, another natural person, a piece of real estate for one 
 hundred thousand dollars, that being its actual value, pay- 
 ing one-half down, and giving a mortgage for fifty thou- 
 sand dollars to secure the balance of the purchase-money. 
 The Constitution in effect says and in this instance such 
 is the real actual state of facts that A and B each has 
 fifty thousand dollars in the property, one-half not having 
 been paid for by A, and each shall be assessed and pay a 
 tax upon his own interest in it, amounting to fifty thou- 
 sand dollars. A, in this instance, is worth only fifty thou- 
 sand dollars, and if he pays taxes upon a larger amount, 
 he pays taxes upon property he does not own upon prop- 
 erty owned by somebody else. This seems to be a self- 
 evident proposition. 
 
 C, " a railroad, or other quasi public corporation," also 
 has fifty thousand dollars cash, and purchases of B, for its 
 proper use, an adjoining piece of real estate for one hun- 
 
72 - 
 
 dred thousand dollars, which is also its actual value, pay- 
 ing fifty thousand dollars, and giving a mortgage to se- 
 cure the balance of the purchase-money. In this case, as 
 in the other, the actual interest of each in the property is 
 fifty thousand dollars. They stand precisely upon the 
 same footing in all particulars with reference to the prop- 
 erty. C has only fifty thousand dollars in the property 
 it not having paid for the other half and B the rest. But 
 in this case the Constitution says that C shall, neverthe- 
 less, be assessed for and pay taxes upon the whole prop- 
 erty, double the amount he owns, and B shall not be re- 
 required to pay anything. That is to say, that C shall not 
 only pay the tax on its own property, but the tax upon B's 
 property; that money, to the amount of the tax assessed 
 upon fifty thousand dollars belonging to B, shall be taken 
 by the State or county from C, and appropriated to the 
 use and for the benefit of B, to liquidate B's share of the 
 public burdens. This sum, being so much more than C's 
 share of the public burdens, and being in fact B's share, 
 the result of the operation is, not only to take so much 
 property from C, for public use, without compensation, 
 but also to arbitrarily take it from C and apply it to the 
 use and benefit of another private party, B, without com- 
 pensation. The result would be the same, whether the 
 property of A, B, and C, thus situated and mortgaged, is 
 land, a railroad operated in one or more counties, or any 
 other kind of property. Does a law which authorizes such 
 proceedings such discriminations bear or press equally 
 upon A and C, or equally upon B and C ? Is C equally 
 protected in his rights of property with A, or equally pro- 
 tected with B ? Although situated precisely alike with 
 reference to their property, do they feel the pressure of 
 the public burdens equally and alike ? The question does 
 not appear to me to admit 'of argument. Upon the very 
 statement of the proposition, it seems to me to be self- 
 evident that a law authorizing and requiring such proceed- 
 ings, does not afford, but expressly denies the equal protec- 
 
73 
 
 i 
 
 tion of the law. The Constitution in the one case says 
 that " the mortgage, deed of trust, contract, or obligation " 
 shall he " deemed and treated as an interest in the land 
 affected thereby," which, in the cases supposed, together 
 with the debt secured, it undoubtedly, in fact, is; but 
 in effect the Constitution says it is not so in the other case. 
 Different kinds of property may require to be taxed in 
 different forms and modes, in order to he equally taxed. 
 And classifications of property, for purposes of taxation, 
 should have reference to the just equality of burdens, so 
 far as that is practically attainable. Classification should 
 have reference to the different character, situation, and 
 circumstances of the property, making a different form or 
 mode of taxation proper, if not absolutely necessary. It 
 cannot be arbitrarily made with mere reference to the na- 
 tionality, color, or character of the owners, whether nat- 
 ural or artificial persons, without any reference to a differ- 
 ence in the character, situation, or circumstances of the 
 property. If the arbitrary discrimination and classifica- 
 tion found in this case can be legally made under the Con- 
 stitution, and the law of the land, then the Constitution, 
 or the law, can be so framed as to dispose of a man's 
 rights in property of all kinds by arbitrary classification 
 and definition, without regard to the real facts, circum- 
 stances, or condition of the property. Aperson may be 
 classified and defined out of the equal protection of the 
 law; and if so, with reference to this provision, he can 
 also be classified and defined out of uniformity in the op- 
 eration of the law in other particulars; out of the protec- 
 tion of due process of law, and of the provision forbidding 
 a law impairing the obligation of contracts, or taking prop- 
 erty for public use without just compensation; and, in- 
 deed, out of all the guaranties of the Constitution, State 
 or National. I am not arguing that property of all kinds 
 may not be taxed where it is found; but in this case there 
 is a personal liability sought to be enforced against the de- 
 
74 
 
 fendant for taxes not imposed upon others in like circum- 
 stances, without any means provided for reimbursement 
 such as are applicable to others similarly situated, by the 
 party who ought to pay the tax. 
 
 What constitutes the equal protection of the law is well 
 stated in Ah Kow vs. Nunan, 5 Saw., 562; In re Ah Fong, 
 3 Saw. ,144; Pearson vs. Portland, 69 Me,, 278; Portland 
 vs. Bangor, 65 Maine, 120; Missouri vs. Lewis, 101 U. S., 
 22. See, also, Live Stock, gc., vs. Crescent City Co., 1 
 Abb., 398; ParrotVs Chinese Case, 6 Saw., 377. That in- 
 equality and different principles of. taxation of persons 
 similarly situated, as in this case, is a violation of this 
 provision seems to be already determined by the Supreme 
 Court of the United States. The Civil Rights Act, as re- 
 enacted in 1870, and, again, in the Revised Statutes, pro- 
 vides that " All persons within the jurisdiction of the 
 United States shall have the same right in every State" 
 and Territory .... to the full and equal benefit of 
 all laws and proceedings for the security of persons and 
 property, as is enjoyed by white citizens, and shall be sub- 
 ject to like punishment, pains, penalties, taxes, licenses, 
 and exactions of every kind, and to no other" (16 Stat., 144, 
 sec. 16; R, S., 1977.) 
 
 The Congress which passed this act embraced many of 
 the members who were in the Congress which framed and 
 proposed the Fourteenth Amendment; and they may be 
 supposed to be well informed as to the purpose and scope 
 of that amendment. This act was passed in pursuance of 
 the last clause of the amendment, as a part of the appro- 
 priate legislation to enforce its provisions. It is, therefore, 
 a legislative construction, as to the scope of the provision 
 inhibiting the States from denying to any person the 
 equal protection of the law. The United States Supreme 
 Court gives the amendment a similar construction as to 
 its scope. In Strauder vs. West Virginia, the Court says 
 that Sections 1977 and 1978 of the Revised Statutes "par- 
 
75 
 
 tially enumerate the rights and immunities intended to 
 be granted by the Canstitution," and after quoting Sec- 
 tion 1977, as above set out, adds: "This act puts in the 
 form of a statute what had been substantially ordained 
 in the constitutional amendment. It was a step toward 
 enforcing the constitutional provision." (100 U. S., 
 311.) 
 
 In ex-parte Virginia, the Court, referring to Tennessee 
 vs. Davis and Strauder vs. West Virginia, said: "We held 
 that the Fourteenth Amendment secures, among other 
 civil rights to colored men, when charged with criminal 
 offences against a State, an impartial jury trial, by ju- 
 rors indifferently selected or chosen without discrimina- 
 tion against such jurors because of their color. We held 
 that immunity from any such discrimination is one of 
 the equal rights of all persons, and that any withholding 
 it by a State is a denial of the equal protection of the laws 
 within the meaning of the amendment. We held that such 
 an equal right to an impartial jury trial, and such an 
 immunity from unfriendly discrimination, are placed by 
 the amendment under the protection of the General 
 Government and guaranteed by it. We held, further, 
 that this protection and this guaranty, as the fifth sec- 
 tion of the amendment expressly ordains, may be enforced 
 by Congress by means of appropriate legislation." (100 U. 
 S., 345.') 
 
 If discrimination in fixing the qualifications of jurors 
 inferentially violates the provisions of the Fourteenth 
 Amendment, as denying the equal protectien of the law, 
 it is not easy to perceive why discriminations in the as- 
 sessment and collection of taxes expressly made are not 
 equally so. 
 
 Thus it appears that the Supreme Court regards the sec- 
 tion quoted as within the scope of the Fourteenth Amend- 
 ment, and the act provides that every person " shall be sub- 
 ject to like . . . taxes, licences, and exactions of every kind, and 
 to no other" as " white citizens," and this is held to be ap- 
 
76 
 
 propriate legislation to enforce the amendment. We have 
 already seen that this defendant is subjected to taxes and 
 exactions other than, and different from those imposed 
 upon " white citizens." We have already held that the 
 word " person," as to property rights, as used in the amend- 
 ment in question, includes a corporation, and as used in 
 the provision of the statute cited, it includes a corporation 
 by express definition of the statute itself, which says, in 
 terms: "In determining the meaning of the Revised Stat- 
 utes .... the word f person ' may extend and be applied 
 to partnerships and corporations." (Page 1, Tit. I., Chap. 
 One, sec. 1.) 
 
 The provision of the Constitution of the State of Cali- 
 fornia in question, therefore, violates the provision of the 
 Fourteenth Amendment in denying to defendant the equal 
 protection of the law. 
 
 " An unconstitutional law is void, and is no law." (Ex- 
 parte Siebold, 100 U. 8., 376.) 
 
 " The Constitution and laws of the United States are the 
 supreme law of the land, and to those every citizen of the 
 United States owes obedience, whether in his individual 
 
 or official capacity The laws of the State, in so far 
 
 as they are inconsistent with the laws of Congress on the 
 same subject, cease to have effect as laws." (Ib., 392 and 
 397.) 
 
 6. It is farther urged on the part of plaintiff, that under 
 the State Constitution, the Legislature is authorized to 
 alter or repeal the laws under which corporations are 
 formed they cannot be properly called charters and 
 that this mode of taxing corporations, in effect, operates as 
 an amendment of the act authorizing the formation of cor- 
 porations; and that corporations hold their franchises in 
 subordination to that provision. The proceeding in ques- 
 tion is either taxation or something else; either an exercise 
 of the sovereign right of taxation, or the exercise of some 
 other power; either taxation or not taxation. The provi- 
 sion, in terms, purports on its face to provide for taxation. 
 
77 
 
 The convention that framed the article, and the people 
 when they adopted it, evidently must have supposed they 
 were providing a scheme of taxation. The provision ad- 
 mits of no other construction. 
 
 The provision is found in the chapter entitled " Revenue 
 and Taxation," and the section says, "for the purpose of 
 assessment and taxation" etc. If the proceeding is taxation, 
 then it provides and can only provide for taking from the 
 defendant an amount of money equal to its just share of 
 the public burden relieved by the taxation, and nothing 
 more. Anything beyond that is taking private property 
 for public use without compensation. If the proceeding 
 is taxation, there is no necessity for resorting to any other 
 provision of the Constitution. If it is not taxation if 
 the amount demanded, or the principle adopted, is im- 
 posed as a condition of continued existence, or as a limi- 
 tation of its rights to exercise its franchises, then it is an 
 annual bonus demanded for the franchise, or the privilege 
 of existence, such as was formerly often demanded and 
 paid by corporations for the special privileges given by 
 special charters, when there were no restrictions upon the 
 legislative power upon the subject, and is not taxation. 
 If it is a bonus demanded and paid for this right, then in 
 addition, the corporation is subject to taxation upon its 
 property, for under the Constitution all property must be 
 taxed. "All property in the State," says the Constitution, 
 " not exempt under the laws of the United States, shall be 
 taxed in proportion to its value, to be ascertained as pro- 
 vided by law." Article XIII., in section six says that: 
 "The power of taxation shall never be surrendered or suspended 
 by anj/ grant or contract to which the State shall be a party" 
 If, therefore, the provision of section four, relative to 
 "railroad or other quasi public corporations," is a term 
 or condition of the contract upon which its existence and fur- 
 ther exercise of its franchises depend, then it must still 
 be liable to taxation on its property in the proper mode. 
 By a contract authorizing certain persons to form a cor- 
 
78 
 
 poration and exercise its franchises, however valuable the 
 consideration received, the State cannot, as we have seen, 
 surrender or suspend its right to tax its property besides, 
 as all other property is taxed. Other tax-payers are en- 
 titled to have the property of corporations properly taxed. 
 Again, if the submission to this mode of what is called 
 taxation becomes a valid condition of the continuance of 
 the further existence of the corporation and the further 
 exercise of its franchises, then a refusal to pay the tax is 
 a violation of the conditions of its being, and the Courts, 
 upon a proceeding for the purpose by the State, in the na- 
 ture of a quo warranto, would probably adjudge the for- 
 feiture of its charter and wind up its affairs. This would 
 be the appropriate remedy. I apprehend that no Court 
 would so adjudge under the present Constitution on that 
 ground. It is clear to me, therefore, from these consider- 
 ations and the express terms themselves of the Constitu- 
 tion, that the provision in question attempts to provide 
 only for exercising the sovereign power of taxation has 
 no other end to accomplish, and accomplishes no other 
 purpose; and that the rights of the parties must be deter- 
 mined on that hypothesis alone. Again, the general act 
 authorizing the formation of corporations confers upon 
 those complying with its provisions certain rights, fran- 
 chises, and privileges. It endows the parties as organized 
 with certain faculties and capacities, the result being to 
 give them in their united character, under a certain name, 
 a capacity to do business and acquire property. A law 
 merely authorizing the formation of a corporation gives the 
 corporation formed no property. That must be acquired by 
 the corporation for itself. The Legislature, under the va- 
 rious guaranties of the Constitution, State and National, 
 can onty take away, limit, enlarge, or modify that which 
 it gave. And what is given in the creative act is simply 
 its capacities; its legal faculties, including all such as are 
 essential to its corporate existence; all those powers which 
 are strictly corporate, being those powers which' can only 
 
79 
 
 be given by legislative net; powers not possessed by 
 natural persons or partnerships, acting in their natural, in- 
 dividual, or associate characters, independent of legisla- 
 tion. These strict corporate powers I attempted to define 
 in Orton's Case, (6 Saw. ,187.) The powers thus given, es- 
 sential or otherwise, and their future exercise, may be 
 modified or otherwise affected by subsequent legislation. 
 A corporation having been formed with capacity to ac- 
 quire and hold property, the Legislature may, doubtless, 
 grant to it, as well as to natural persons capable of taking, 
 property rights ; but such rights of property, when once 
 vested, can no more be withdrawn than the property ac- 
 quired from other sources, or than property granted to or 
 acquired by natural persons. The property acquired in 
 the exercise of its corporate faculties, from whatever source 
 derived, is the property of the metaphysical being called 
 the corporation, held, however, in trust for the sole bene- 
 fit of the corporators. As such, it is protected like all 
 other property, and can only be taken by the law of the 
 land, in some one of the modes not inhibited by the Con- 
 stitution. It cannot, in my judgment, be taken even as a 
 further condition of corporate existence without the assent 
 of the corporation or its corporators. There is no con- 
 sent in this case to submit to any such conditions, and that 
 is not the basis upon which the action is brought. There 
 is no promise to pay a bonus set out in the complaint upon 
 which an action can be maintained. I apprehend that a 
 mere provision in the form of a statute or a State Consti- 
 tution adopted after the formation of a corporation, that 
 corporations under the laws should cease to exist, unless 
 they surrender to the State all the property theretofore 
 acquired by the corporation, would be void. And power 
 to demand a part, as a condition of existence, however 
 small, is power to demand all. . Such a statutory demand 
 would be but a flimsy guise or pretext for evading all the 
 guaranties of the Constitution, which would not for a mo- 
 ment be tolerated. It would be to seek indirectly what 
 
80 
 
 could not be attained directly, the accomplishment of an 
 unlawful end by what, at best, is but apparently lawful 
 means. (See on this point Parrott's Chinese Case, 6 Saw., 
 349; opinion of Hoffman, J.) In that easel had occasion 
 to say: " The end being unlawful and repugnant to the su- 
 preme law of the land, it is equally unlawful and equally 
 in violation of the Constitution and treaty stipulations, 
 to use any means, however proper, or within the power 
 of the State for lawful purposes, for the attainment of 
 that unlawful end, or accomplishment of that unlawful 
 purpose. It cannot be otherwise than unlawful to use 
 any means whatever to accomplish an unlawful purpose. 
 This proposition would seern to be too plain to require 
 argument or authority. Yet there is an abundance of 
 authority on the point, although perhaps not stated in 
 this particular form. (Brown vs. Maryland, 12 Wheat., 
 419; Ward vs. Maryland, 12 Wall., 431; Woodruff vs. 
 Parkham, 8 Id., 130-140; Hinson vs. Lott, Id., 152; Wei- 
 ton vs. Missouri, 91 IT. S., 279-282; Cook vs. Pennsylvania, 
 97 Id., 573.)" 
 
 The observations of Mr. Justice Field, in Cummings vs. 
 Missouri, (4 Wall., 325,) are pertinent in this connection. 
 He said: " The deprivation is effected with equal certainty 
 in the one case as it would be in the other, but not with 
 equal directness. The purpose of the law-maker in the 
 case supposed would be openly avowed; in the case ex- 
 isting it is only disguised. The legal result must be the 
 same; for what cannot be done directly cannot be done 
 indirectly. The Constitution deals with substance, not 
 shadows. Its inhibition was leveled at the thing, not 
 the name. It intended that the rights of the citizen 
 should be secure against deprivation for past conduct by 
 legislative enactment under any form, however dis- 
 guised. If the inhibition can be evaded by the form of 
 the enactment, its insertion in the fundamental law was 
 a vain and futile proceeding." (See, also, Henderson .vs. 
 Mayor of N. F., 92 U. S., 268; Chy Lung vs. Freeman, Ib., 
 279; Railroad Co. vs. Huson, 95 Ib., p. 472.) 
 
81 
 
 The foregoing observations apply equally well to any 
 effort to obtain the property of corporations by irregular 
 means not applicable to natural persons. It seems to me 
 that under our general system embodied in the Constitu- 
 tion providing for corporations, which forbids the granting 
 of any special privileges not enjoyed by all other persons, 
 it was intended to put corporations, with respect to their 
 property and to all other matters, except what is in fact 
 granted by the laws, in all particulars upon the same foot- 
 ing as natural persons. 
 
 In my judgment the State constitutional provisions 
 under consideration, and the laws passed to carry them 
 out, violate the provision of the Fourteenth Amendment, 
 in question, in two vital particulars: 
 
 1. They assess railroad and other quasi public corpora- 
 tions upon a different basis from that adopted with respect 
 to natural persons, similarly situated, in the particulars 
 herein pointed out. 
 
 2. They provide, with respect to natural persons, notice 
 and an opportunity to be heard in the course of the pro- 
 ceeding to assess their property before the assessment be- 
 comes fixed, while they afford no such notice, or oppor- 
 tunity to be heard, to railroad and other quasi public 
 corporations; and in both these particulars deny to the 
 latter the equal protection of the law within the mean- 
 ing of the Fourteenth Amendment to the National Con- 
 stitution. 
 
 Again, this suit is for a tax and nothing else. It pro- 
 ceeds upon that idea, and the idea alone, that a valid tax 
 has been assessed against the defendant, which this action 
 is brought under the statute to recover. The suit cannot 
 be maintained upon a liability imposed under other and 
 different provisions of the Constitution. If it cannot be 
 maintained as for a tax, it must fail. The recovery, if any 
 is had, must be upon the cause of action alleged. 
 
 We do not conceive that a provision for assessing rail- 
 roads operated in more than one county, by the State 
 
82 
 
 Board of Equalization,, while other local property is as- 
 sessed by the local assessors, would be denying the equal 
 protection of the law, provided the assessment in the 
 former case is, in all respects, made upon the same basis, 
 under the same rules, and upon the same principles, as to 
 value, notice, opportunity to be heard, etc., as in the 
 latter. The presumption would be that all the officers 
 would perform their duties justly under the law; and 
 that the assessments so made upon property, differently 
 circumstanced, would operate equally. Nor do we think 
 that the assessment of the " franchise, roadway, road-bed, 
 rails, and rolling-stock of all railroads operated in more 
 than one county in the State," " by the State Board of 
 Equalization," as a unit, and apportioning the amount of 
 the assessed value to the several counties, etc., in propor- 
 tion to the number of miles in each, is objectionable, on 
 the ground that it denies the equal protection of the law 
 to the owner of the road. 
 
 Indeed, this seems to be the only practicable way of 
 assessing such a road. It is owned and operated as a 
 unit, and cannot be otherwise usefully employed. Its in- 
 come, expenses, management, and all its operations are 
 as a unit. Its rolling-stock is at one point at one mo- 
 ment, and at another at a different point of time, but it is 
 all working together as a unit to the accomplishment of 
 one end. In fragments and isolated parts, the road would 
 be comparatively valueless as property. It is only as a 
 unit that it can be properly considered or properly taxed. 
 To tax it otherwise would be to tax it upon principles ma- 
 terially different from those applicable to other property, 
 necessarily considered and used as an unit. The charac- 
 ter and circumstances of the property are such as seem, to 
 justify a classification for this purpose. These points, 
 also, seem to be determined in favor of the plaintiff' in the 
 State Railroad Tax Cases, 92 U. S., 575. The other points, 
 determined in this case, are not involved in those cases. 
 
83 
 
 Whatever public inconvenience may temporarily result 
 from our decision and it must necessarily be great be- 
 ing satisfied; as we are, that the provisions of the State 
 Constitution now in question violate the inhibitions of the 
 Fourteenth Amendment, our duty is plain; and we can- 
 not, if we would, shrink from its performance. There 
 must be judgment for the defendant. 
 
 Since the argument in these cases commenced, appar- 
 ently in anticipation of what must necessarily be the re- 
 sult, various means, more or less violent, have been sug- 
 gested through the public press and elsewhere, to prevent 
 railroad corporations from escaping the payment of their 
 just share of the public burdens; such as taking away 
 their franchises; seizing and appropriating their property 
 first, and litigating the right afterwards; and' punishing 
 by the severest penalties the officers of all such corpora- 
 tions, in all cases where resistance to payment of a tax is 
 made in the Courts, however illegal the exaction or what- 
 ever the ground of complaint on their part may be. Vio- 
 lent counsels of this character usually result in constitu- 
 tional and statutory provisions such as those we have been 
 considering and held void, which render it necessary to 
 seek the protection of our national* Magna Charta. It 
 would be idle utterly futile to insert a provision in the 
 National Constitution guaranteeing to every person within 
 its jurisdiction his life, his liberty, and his property, if 
 certain classes can be selected out in the subordinate legis- 
 lation of the country to be visited with condign punish- 
 ment, if they even seek to invoke the protection of this 
 beneficient guaranty againt discriminating and wrongful 
 legislation. If a single individval can be deprived of the 
 protection of this provision by such means, so can all. If 
 such things can be, wherein does the protection of the 
 guaranty consist? 
 
 A far wiser and more statesmanlike proceeding would 
 seem to be, to avoid all occasion for resistance to wrong 
 
84 
 
 in the guise of void laws, by coolly and calmly re-examin- 
 ing the subject in the light of past experience, and so 
 amending our State Constitution and statutes as to bring 
 them into entire harmony with all the guaranties of the 
 Fourteenth Amendment, " the crowning glory of our 
 National Constitution " that noblest and best written Con- 
 stitution ever devised by the wisdom of man. 
 
 If the life, liberty, property, and happiness of all the 
 people are to be preserved, then it is of the utmost im- 
 portance to every man, woman, and child of this broad 
 land, that every guaranty of our National Constitution, 
 whatever temporary inconvenience may be felt, be firmly 
 and rigorously maintained at all times and under all cir- 
 cumstances. In the language of the Supreme Court of the 
 United States: "The Constitution of the United States is 
 a law for rulers and people, equally in war and in peace, 
 and covers with the shield of its protection all classes of 
 men at all times and under all circumstances. No doctrine 
 involving more pernicious consequences was ever invented 
 by the wit of man, than that any of its provisions can be 
 suspended during any of the great exigencies of govern- 
 ment. Such a doctrine leads directly to anarchy or des- 
 potism." (Milligarfs Case, 4 Wall., 120.) 
 
 I concur in the judgment ordered by the Circuit Jus- 
 tice. 
 
 ORDER STAYING PROCEEDINGS. 
 
 As the questions we have considered are of the greatest 
 importance, and their correct solution concerns not mere- 
 ly the railroad corporation which is the defendant, but 
 corporations of every kind, other than municipal, we shall 
 order a stay in all other cases (not decided to-day) now 
 pending in this Court, involving the same questions, until 
 this case can be brought before the Supreme Court of 
 the United States, and the questions involved shall have 
 
85 
 
 received by its judgment their final and authoritative de- 
 termination. If the decision now reached be there sus- 
 tained, the State will be obliged to order a new assess- 
 ment, in making- which the defendant will be allowed a 
 deduction in the valuation of its property for the mortgage 
 thereon, and also a hearing before the State Board of 
 Equalization with respect to the assessment. If, on the 
 other hand, the decision be reversed, the other cases can 
 be at once disposed of. By taking out a writ of error im- 
 mediately on the judgment now rendered, it is possible 
 that the case may be advanced on the calendar and be 
 heard at the coining term. 
 
THE TAXATION 
 
 PROPERTY OF RAILROAD COMPANIES 
 
 IN CALIFORNIA. 
 
THE TAXATION 
 
 OF 
 
 PROPERTY OF RAILROAD COMPANIES 
 
 IN CALIFORNIA, 
 
 AS AFFECTED BY THE 
 
 FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION, 
 
 OPINIONS 
 
 OF 
 
 JUSTICE FIELD AND JUDGE SAWYER, 
 
 DELIVERED IN THE 
 
 U. S. CIRCUIT COURT AT SAN FRANCISCO, 
 
 SEPTEMBER 17ra, 1883. 
 [PRINTED FROM A KEVISED AND OFFICIAL COPT.] 
 
 SAN FRANCISCO: 
 A. L. BANCROFT AND COMPANY 
 
 LAW BOOK PUBLISHERS, BOOKSELLERS, AND STATIONERS. 
 
 1884. 
 
THE SANTA CLARA RAILROAD TAX CASE. 
 
 COUNTY OF SANTA CLAEA v. SOUTHERN PACIFIC 
 
 KAILEOAD COMPANY. 
 AND OTHER SIMILAR TAX CASES. 
 
 CIRCUIT COURT, DISTRICT OF CALIFORNIA. 
 SEPTEMBER 17, 1883. 
 
 1. AOENCY OF THE GENERAL GOVERNMENT EXEMPTION FROM TAXATION. 
 
 The property and franchises of the Southern Pacific Railroad Company 
 and of the Central Pacific Railroad Company, corporations created under 
 the laws of California, though the companies are employed by the General 
 Government for postal and military purposes, and were aided by land 
 grants and loans in the construction of their roads, are not exempt from 
 State taxation in the absence of Congressional legislation declaring such 
 exemption. It is competent for Congress to exempt any agencies it may 
 employ for services to the General Government from such taxation as 
 will, in its judgment, impede or prevent their performance. 
 
 2. THE FOURTEENTH AMENDMENT OF THE CONSTITUTION, in declaring that 
 
 no State shall deny to any person within its jurisdiction the " equal pro- 
 tection of the laws," imposes a limitation upon the exercise of all the 
 powers of the State which can touch the individual or his property, in- 
 cluding that of taxation. 
 
 3. THE "EQUAL PROTECTION OF THE LAWS" to any one implies not only 
 
 that the means for the security of his private rights shall be available 
 to him on the same terms with others, but also that he shall be exempt 
 from any greater burdens or charges than such as are equally imposed 
 upon all others under like circumstances. This equal protection forbids 
 unequal exactions of any kind, and among them that of unequal taxation. 
 
 4. UNIFORMITY IN TAXATION requires uniformity in the mode of assessment, 
 
 as well as in the rate of percentage charged. 
 
 5. MORTGAGES, TAXATION OF, ETC. The thirteenth article of the Constitu- 
 
 tion of California declares that " a mortgage, deed of trust, contract, or 
 other obligation by which a debt is secured shall, for the purposes of 
 assessment and taxation, be deemed and treated as an interest in the 
 property affected thereby," and that, "except as to railroad and other 
 quasi public corporations," the value of the property affected, less the 
 value of the security, shall be assessed and taxed to its owner, and that 
 the value of the security shall be assessed and taxed to its holder, and 
 that the taxes so levied shall be a lien upon the property and security, 
 and may be paid by either party to the security; that if paid by the 
 owner of the security, the tax levied upon the property affected thereby 
 
4 THE SANTA CLARA RAILROAD TAX CASE. [Cir. Ct. 
 
 Points decided. [September, 
 
 shall become a part of the debt secured: and if the owner of the prop- 
 erty shall pay the tax levied on the security, it shall constitute a pay- 
 ment thereon, and to the extent of such payment a full discharge thereof. 
 In the assessment of property of the defendants railroad companies 
 the mortgages thereon were not deducted, but the whole value of the 
 property, notwithstanding the mortgages thereon, was assessed and the 
 property taxed according to such assessment, to those companies: Held 
 (1), treating the mortgages as transferring a taxable interest in the prop- 
 erty, that in assessing against the company the interests with which 
 they had at the time parted by their mortgages, and taxing them upon 
 that assessment, was a proceeding to take the property of the companies 
 without due process of law; and (2) treating the mortgages as a lien or 
 incumbrance upon the property, that by not deducting their amount in 
 the assessment of the value of the property of the railroad companies 
 for taxation, as is done in the valuation of property of natural persons, 
 when subject to a mortgage, there was a discrimination against the com- 
 panies, which resulted in imposing a greater burden upon their property 
 than is imposed upon the property of natural persons. 
 
 6. CORPORATIONS, EQUAL PROTECTION OF. Persons do not lose their right 
 
 to equal protection guaranteed by the Fourteenth Amendment to the 
 Federal Constitution when they form themselves into a corporation under 
 the laws of California. 
 
 7. THE STATE POSSESSES No POWER, TO WITHDRAW CORPORATIONS FROM 
 
 THE GUARANTIES OF THE FEDERAL CONSTITUTION. Whatever property 
 a corporation lawfully acquires is held under the same guaranties which 
 protect the property of natural persons from spoliation. 
 
 8. RESERVED POWER TO AMEND CHARTERS. Under the reserved power to 
 
 amend, alter, or repeal the laws under which private corporations are 
 formed, the State cannot exercise any control over the property of a cor- 
 poration, except such as may be exercised through control over its fran- 
 chise, and over like property of natural persons engaged in similar business. 
 
 9. ASSESSMENT JUDICIAL IN CHARACTER. The proceeding for the assess- 
 
 ment of property, that is, the ascertainment of its value, upon evidence 
 taken is judicial in its character; and to its validity the law authoriz- 
 ing it must provide some kind of notice, and an opportunity to be heard 
 respecting it, before the proceeding becomes final; or it will want the 
 essential ingredient of due process of law. The notice may be given by 
 personal citation or by statute. It is usually given by a statute pre- 
 scribing a time and place where parties may be heard before boards ap- 
 pointed for the correction of errors in assessment. 
 
 10. JOURNALS OF LEGISLATURE EVIDENCE. The Constitution of California 
 (section 15, article IV.) provides that "on the final passage of all bills 
 they shall be read at length, and the vote shall be by yeas and nays upon 
 each bill separately, and shall be entered on the journal, and no bill shall 
 become a law without the concurrence of a majority of the members 
 elected to each house." Under this provision, the Court, to inform 
 itself, will look to the journals of the Legislature, and if it appears there- 
 from that the bill did not pass by the constitutional majority, then it 
 will not be regarded as a law. 
 
Dist. Cal.] THE SANTA CLARA RAILROAD TAX CASE. 5 
 
 1883.] Statement of Facts. 
 
 11. THE JOURNALS OF THE LEGISLATURE SHOW that the Act of March 14, 
 1881, mentioned in the opinion, never became a law. 
 
 12. ORIGINAL WRITTEN JOURNALS OFFICIAL. The original written journals 
 on file in the office of the Secretary of State are the authentic official rec- 
 ords; and when they differ in any material particular from the printed 
 journals, they must control. 
 
 13. FRANCHISE TAX. The discrimination in taxation, made against "rail- 
 road and other quaxi public corporations," cannot be sustained on the 
 principle of a franchise tax. Article XIII. of the State Constitution, in 
 express terms, declares a franchise to be property, and provides that it 
 shall be taxed, like all other property, "in proportion to its value." 
 
 Before FIELD, Ciicuit Justice, and SAWYER, Circuit Judge. 
 
 STATEMENT OF FACTS. 
 
 These are actions commenced by the plaintiff in the State 
 Courts for the recovery of State and County taxes claimed 
 to be due from the defendants to the plaintiffs for the fiscal 
 year of 1881-2, and of 1882-3. These actions were by the 
 defendants removed to this Court, and have been tried to- 
 gether without a jury. 
 
 The defendants are corporations formed under the laws of 
 the State of California, and the taxes claimed, as appears on 
 the assessment rolls for the several counties introduced iu 
 evidence, were levied on the franchise, roadway, roadbed, 
 rails, and rolling-stock of each of them as a unit, without 
 separation in the valuation of the different parts composing 
 the whole. 
 
 The assessment upon which the tax is based was made by 
 the State Board of Equalization acting by authority of sec- 
 tion 10 of article XIII. of the State Constitution adopted in 
 1879, and no deductions were made on account of the mort- 
 gages hereafter mentioned. In the assessment of the road- 
 way the value of the fences on its sides was included. And 
 in the estimate of the length of the roadway of the Central 
 Pacific Company, the four miles of the bay of San Francisco 
 between the road in the county of San Francisco and the 
 wharf in Alameda county were included, and were assessed 
 as of equal value per mile with the rest of the road. 
 
 Two of the corporations defendant, the Central Pacific 
 and Southern Pacific Railroad companies, are in the exer- 
 cise of such privileges and powers, other than those acquired 
 
6 THE SANTA CLARA EAILROAD TAX CASE. [Cir. Ct. 
 
 Statement of Facts. [September, 
 
 under the laws of the State, as are conferred upon them by 
 the Acts of Congress under the authority of which their roads 
 were constructed. 
 
 These privileges and powers were conferred by grant of 
 the General Government, and, for them, such obligations 
 and burdens were assumed as are prescribed by the several 
 Acts of Congress referred to. The defendants, at the time 
 the assessments were made, were indebted in large sums for 
 money borrowed to build and equip their respective roads. 
 
 This indebtedness was secured by mortgages, and in the 
 case of the Southern Pacific Railroad Company, the mort- 
 gage covered not only the road, equipment, and franchise, 
 but also a large number of tracts of land, aggregating over 
 eleven millions of acres situated along the line of the road 
 in different counties in the State of California. 
 
 These tracts of laud are not, and they never have been, used 
 in connection with the railroad business of the defendant in 
 question, but are agricultural and grazing lands, granted to 
 the defendants by the United States for the purpose of aid- 
 ing in the construction of the road. 
 
 Said lands were assessed by the County assessors of the 
 respective counties in which they are situated for the years 
 1880, 1881, and 1882 at their full cash value, and no deduc- 
 tion was made on account of the mortgage thereon. The 
 taxes so assessed upon said lands have been fully paid. 
 
 At the session of the Legislature of the State of California 
 held in 1881, an attempt was made to amend section 3664 
 of the Political Code of California, relating to the assess- 
 ment of railroad property. A bill for this purpose was 
 introduced, and passed the Assembly. In the Senate an 
 amendment was made, most material in its character. 
 When the bill was returned to the Assembly the question 
 was whether the Assembly would concur in this amendment. 
 Upon roll-call, as appears by the written journal, the vote 
 stood, counting all the names reported, ayes 40, noes 32. 
 The Speaker announced the vote as 39 ayes and 32 noes, 
 and such are the footings of the vote in the journal. 
 
 The Constitution of the State requires that upon the final 
 passage of a bill the ayes and noes shall be called, and that 
 
Dist. Cal.] THE SANTA CLARA KAILROAD TAX CASE. 7 
 
 1883.] Statement of Facts. 
 
 the affirmative vote of a majority of all the members elected 
 is necessary to the passage of a bill. The house consisted 
 of eighty members. The other facts upon this point are 
 stated in the opinion of the Circuit Judge. 
 
 At, before, and ever since the adoption of the State Consti- 
 tution of 1879, still in force, there were and there now are 
 existing under the laws of the State corporations of various 
 kinds, formed for the purpose and actually operating and 
 doing business, and holding and using property in more than 
 one County in the State. Corporations in the State of Cali- 
 fornia no ware, and ever have been, formed under general laws 
 relating thereto, and there have ever existed corporations 
 formed under its laws for fire, marine, mutual, life, health, 
 and accident insurance, building ferries, constructing and 
 operating roads, wagon-roads, telegraphs, bridges, wharves, 
 chutes, and piers, and for constructing and operating canals; 
 for the purpose of acquiring lands in large tracts, and dis- 
 tributing them as homesteads among the corporators; for 
 savings and loans; for mining; for the sale and distribution 
 of water in the cities and towns; for manufacturing, me- 
 chanical, and agricultural purposes; for benevolent, chari- 
 table, and educational purposes, cemeteries, agricultural 
 fairs, and various other purposes. 
 
 There is now, and ever since the thirtieth day of July, 
 1881, there has been, a railroad in use and operation extend- 
 ing from the city of Marysville in the County of Yuba to the 
 town of Oroville in the County of Butte, in said State, a 
 distance of twenty-six and one half miles, which road now 
 is, and it ever has been, operated in more than one County in 
 this State, and has the same gauge as the road of this de- 
 fendant, and has ever been operated in like manner, and for 
 like uses and purposes, and it is now, and for more than three 
 years last past it has been, in the ownership and under the 
 operation and control of one N. D. Eideout, a citizen of the 
 United States, and resident of the State of California. 
 
 See also statement of facts in the similar case of the County 
 of San 'Mateo \. Southern Pacific Railroad Company, 8 Saw. 239. 
 
 E. C. Marshall, Attorney-general of California, D. M. Del- 
 mas, D. S. Terry, A. L. Rhodes, W. T. Baggett, J. H. Camp- 
 
8 THE SANTA CLARA EAILEOAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 bell, District Attorney of Santa Clara County, J. T. Carey, 
 District Attorney of Sacramento County, and J. 717. Lesser, 
 District Attorney of Santa Cruz County, for plaintiffs. 
 
 S. W. Sanderson, J. N. Pomeroy, T. I. Bergin, H. S. 
 Brown, S. C. Demon, and P. D. Wigginton, for defendants. 
 
 By the Court : FIELD, Circuit Justice : 
 
 These are actions for the recovery of unpaid State and 
 County Taxes levied upon certain property of the several 
 defendants, either for the fiscal year of 1881 or of 1882, 
 and alleged to be due to the plaintiffs, with an additional 
 five per cent., as a penalty for their non-payment, and in- 
 terest. The defendants are corporations formed under the 
 laws of California, and the taxes claimed were levied on the 
 franchise, roadway, roadbed, rails, and rolling-stock of each 
 of them as an unit, without separation or distinction in the 
 valuation of the different parts composing the whole. To 
 two of the corporations, the Southern Pacific Eailroad 
 Company and the Central Pacific Kailroad Company, privi- 
 leges and powers, other than those acquired under the laws 
 of the State, were conferred by grant of the General Gov- 
 ernment; and for them obligations and burdens were as- 
 sumed not contemplated nor possible under their original 
 organization. 
 
 It is contended that Congress has selected these corpora- 
 tions as the special agents and instruments of the nation 
 for public purposes, and to that end has clothed them with 
 faculties, powers and privileges to enable them to construct 
 and maintain their roads as postal and military roads of the 
 Government; that the State by an act of its Legislature has 
 assented to the acceptance of these faculties, powers, and 
 privileges, and that the companies in consideration thereof 
 have assumed obligations to the General Government with 
 the discharge of which the State cannot interfere; that the 
 power to tax their franchises involves the power to destroy 
 the companies and thus deprive the General Government of 
 the benefit of the roads, for the construction and main- 
 tenance of which its grants were made; that the existence 
 and exercise of the power on the part of the State are there- 
 
Disfc. Cal.] THE SANTA CLARA KAILROAD TAX CASE. 9 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 fore incompatible with the duties devolved upon and as- 
 sumed by the companies to the United States. Hence it is 
 claimed by counsel that the tax levied upon the franchises 
 of the defendants is illegal and void; and they refer to nu- 
 merous decisions of the Supreme Court which hold, in gen- 
 eral language, that an agency of the United States, an 
 instrumentality by which the Federal Government dis- 
 charges its obligations to the people of the country, cannot 
 be taxed by any State or subordinate authority. Certainly 
 no State can impede or embarrass the Federal Government 
 in its operations, as might be done if it could impose a tax 
 upon the necessary means adopted for their execution; nor 
 can the Federal Government impede or embarrass the 
 operations of the State governments, as it might do, if it 
 could impose a tax upon the necessary means adopted by 
 them in the exercise of their powers. 
 
 The two governments have supreme authority within 
 their respective spheres, and within them neither can inter- 
 fere with the other. On this principle it was held by the 
 Supreme Court that the State could not levy a tax upon the 
 salary or emoluments of an officer of the United States; 
 nor could the United States impose a tax upon the salary 
 of a State Judge. (Dobbins v. Commissioners of Erie 
 County, 16 Peters, 435; Collector v. Day, 11 Wall.^113 ) 
 Both officers were necessary agents, instrumentalities for 
 exercising the powers of their respective governments, and 
 to tax the salary of either was to impair the means by 
 which he could exist and maintain his office. In both 
 cases, as observed by Mr. Justice Nelson, the exemption 
 from taxation was "upheld by the great law of self-preser- 
 vation, as any government, whose means employed in con- 
 ducting its operations is subject to the control of another, 
 can exist only at the mercy of that government." 
 
 The correctness of this general principle is not contro- 
 verted, and cannot be in the face of the numerous deci- 
 sions of the Supreme Court, when applied to the means 
 or instrumentalities created by the Federal Government, 
 or existing under its laws, for the exercise of its powers, 
 such as officers of its Courts in the administration of 
 
10 THE SANTA CLARA EAILEOAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 justice, or fiscal agents in the collection, custody, or dis- 
 tribution of its funds. But we are unable to accede to 
 the position that every agent or instrument which the 
 United States 'may see fit to employ, is thereby exempted 
 from the common burdens of the State in which it may 
 be found or used, in the absence of specific Congressional 
 legislation declaring such exemption. The coach employed 
 to carry the mail, or the ferry-boat to convey it across 
 a navigable stream, would hardly, by reason of this em- 
 ployment alone as an instrumentality of the General Gov- 
 ernment, be considered as withdrawn from the taxing 
 power of the State. As well observed by Chief Justice 
 Chase, with reference to the exemption from State taxa- 
 tion claimed by the Kansas Division of the Pacific Kail- 
 road Company for its property, no limits can be perceived 
 to the principle of exemption which the companies thus 
 seek to establish. " Every corporation," he added, "en- 
 gaged in the transportation of mails, or of Government 
 property of any description, by land or water, or in sup- 
 plying materials for the use of the Government, or in per- 
 forming any service of whatever kind, might claim the 
 benefit of the exemption. The amount of property now 
 held by such corporations, and having relations more or 
 less direct to the National Government and its service, is 
 very great. And this amount is continually increasing; so 
 that it may admit of question whether the whole income of 
 the property which will remain liable to State taxation, if 
 the principle contended for is admitted and applied in its 
 fullest extent, may not ultimately be found inadequate to 
 the support of the State governments." (Thomson v. Pacific 
 Railroad, 9 Wall. 579, 591.) 
 
 It is true, that in the case from which this citation is 
 made, exemption from taxation was claimed only for the 
 property, the road and rolling-stock of the Company. 
 Here the exemption claimed is of the franchises of the 
 corporations, their right to exist and maintain their roads. 
 But it is not perceived that this difference between the 
 cases can affect the rule which was there laid down, that 
 unless Congress interposes and creates the exemption, the 
 
Dist. Gal.] THE SANTA CLARA KAILROAD TAX CASE. 11 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 taxing power of the State is not restrained; for if the 
 roads and rolling-stock can be taxed, and, if the taxes are 
 not paid, can be sold, the ability of the companies to dis- 
 charge their obligations as agents of the Government, would 
 be as effectually destroyed, as by the taxation and sale of 
 their franchises. The possession of the roads and rolling- 
 stock is as essential as the possession of the franchises. 
 
 The objection presented by counsel is not free from diffi- 
 culty, ^t one time I thought that it was tenable, and so ex- 
 pressed myself by joining in the dissent in Railroad Company 
 v. Peniston, reported in 18 Wallace; but on further consid- 
 eration, I have come to the conclusion that the rule laid 
 down in Thomson's Case is the true and sound rule. The 
 State, it is conceded, cannot use its taxing power so as to 
 defeat or burden the operations of the General Government; 
 and when that Government has itself created the instru- 
 mentality used, its exemption from State taxation neces- 
 sarily follows. But we are of opinion, yielding to the de- 
 cision cited, that when the instrumentality is the creation 
 of the State a corporation formed under its laws and is 
 employed or adopted by the General Government for its 
 convenience, although to enlarge its use and render it more 
 available additional privileges and benefits are conferred 
 by that Government upon the corporation, it remains sub- 
 ject to the taxing power of the State, unless Congress de- 
 clares it to be exempt from such power. Congress can un- 
 doubtedly exempt any agencies it may employ for services 
 to the General Government from such taxation as will in 
 its judgment impede or prevent their performance. Occa- 
 sions may arise hereafter, especially in time of war, where 
 the necessities of the Federal Government will require such 
 exemption of the roads of the companies, and of their fra"n- 
 chises and appurtenances, to be declared and enforced, the 
 exemption to continue until the necessities calling for it 
 shall cease. But as yet Congress has not declared any such 
 exemption either of their property or of their franchises; 
 and we therefore think that none exists. 
 
 Of the other defences interposed to the claim of the 
 plaintiffs, some are founded upon an alleged neglect of the 
 
12 THE SANTA CLARA RAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 assessing officers to comply with the requirements of the 
 laws of the State, and some upon the alleged conflict of 
 provisions of the State Constitution, under which they 
 acted, with requirements of the Federal Constitution. Of 
 the former are objections to what is termed the lumping 
 character of the assessment, that is, the blending of the 
 different items composing the whole into one valuation, 
 namely, the value of the franchise, roadway, roadbed, rails, 
 and rolling-stock, without any designation of the value of 
 each distinct part; arid to the including in the roadway of 
 property not properly appertaining to it, such as fences on 
 its sides belonging to adjoining proprietors; and, so far as 
 the roadway of the Central Pacific Company is concerned, 
 to the including in the estimate of its length the four miles 
 of the bay between the road in the county of San Francisco 
 and the wharf in Alameda county. The value of the fences 
 is included in tbe valuation of the roadway of each company. 
 The distance across the bay of San Francisco is added to 
 the length of the road assessed to the Central Pacific Com- 
 pany, and is assessed as of equal value per mile with the 
 rest of the road. It is also contended that the laud com- 
 posing the roadway, and the rails laid thereon, should have 
 been separately assessed; the latter as improvements under 
 the Constitution of the State, which requires "land and im- 
 provements thereon" to be separately assessed. An objec- 
 tion is also taken to those cases in which the people of the 
 State are plaintiffs, that the statute under which they were 
 brought was repealed in 1880, and that after that period 
 actions for unpaid taxes could be brought only in the name 
 of the county. We do not, however, deem it important to 
 pass upon these and other objections to the assessment, 
 arising from an alleged disregard of the laws of the State. 
 We shall confine ourselves- to the defences made to the 
 assessment and tax from the alleged conflict of the pro- 
 visions, under which they were levied, with the requirements 
 of the Fourteenth Amendment to the Constitution of the 
 United States, which declares that no State shall "deprive 
 any person of life, liberty, or property without due process 
 of law, nor deny to any .person within its jurisdiction the 
 
Dist. Cal.] THE SANTA CLARA KAILROAD TAX CASE. 13 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 equal protection of the laws." The railroad companies con- 
 tend that both inhibitions of this amendment were violated 
 in the assessment and taxation of their property. 
 
 The Constitution of California provides for taxes on 
 property, on incomes, and on polls. The taxation on prop- 
 erty, with which alone we are concerned in this case, is to 
 be in proportion to its value. There is no provision for 
 levying a specific tax upon any article or kind of property. 
 It declares that all property, not exempt under the laws of 
 the United States, shall, with some exceptions, be taxed 
 according to its value, to be ascertained as prescribed by 
 law; arid that the word "property" shall "include moneys, 
 credits, bonds, stocks, dues, franchises, and all other mat- 
 ters and things, real, personal, and mixed, capable of pri- 
 vate ownership." 
 
 It also declares that a "mortgage, deed of trust, contract, 
 or other obligation by which a debt is secured, shall, for 
 the purposes of assessment and taxation, be deemed and treated 
 as an interest in the property affected thereby." And that, 
 "except as to railroads and other quasi public corporations, in 
 case of debts so secured, the value of the property affected 
 by such mortgage, deed of trust, contract, or obligation, 
 less the value of such security, shall be assessed and taxed 
 to the owner of the property, and the value of such security 
 shall be assessed and taxed to the owner thereof." It also 
 provides that ' ' the taxes so levied shall be a lien upon the 
 property and security, and may be paid by either party to 
 such security; if paid by the owner of the security, the tax 
 so levied upon the property affected thereby shall become a 
 part of the debt so secured; if the owner of the property 
 shall pay the tax so levied on such security, it shall consti- 
 tute a payment thereon, and to the extent of such payment 
 a full discharge thereof." 
 
 By the Constitution not only is the ad valorem rule estab- 
 lished for the taxation of property, but provision is also 
 made for its assessment. The franchise, roadway, roadbed, 
 rails, and rolling-stock of railroads operated in more than 
 one county are to be assessed by a special board, termed 
 the State Board of Equalization. All other property is to 
 
14 THE SANTA CLARA RAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 be assessed in the county in which it is situated. The Super- 
 visors of each county are constituted a Board of Equalization 
 of such taxable property, and must act upon prescribed 
 rules of notice to its owners. The State Board is authorized 
 to act not only as assessor of the franchise, roadway, road- 
 bed, rails, and rolling-stock of the railroads mentioned, but 
 as a Board of Equalization of the taxable property in the 
 several counties, so that equality may be secured between 
 the tax-payers of different localities. Its action in this lat- 
 ter character must also be upon prescribed rules of notice. 
 But though the officers by whom the assessment of these 
 properties is to be made be different, the properties are sub- 
 ject to the same rule of taxation; that is, they are to be 
 taxed in proportion to their value. In fixing, however, the 
 liabilities of parties to pay the tax assessed and levied upon 
 properties subject to a mortgage, and in estimating the value 
 of such properties as the foundation for the tax, a discrim- 
 ination is made between the property held by railroad and 
 quasi public corporations, and that held by natural persons 
 and other corporations. A mortgage, as seen by the pro- 
 visions of the Constitution quoted above, is deemed and 
 treated, for the purposes of assessment and taxation, as an 
 interest in the property affected. At common law a mort- 
 gage of property is a conveyance of the title, subject to a 
 condition that if the debt secured be paid as stipulated, the 
 conveyance is to become inoperative. Until the debt se- 
 cured is paid, the title is in the mortgagee. By the Consti- 
 tution, a mortgage, for the purposes of assessment and tax- 
 ation, operates in like manner to transfer the mortgagor's 
 interest to the extent represented by the amount secured. 
 If such amount be half the value of the property, the tax- 
 able interest of the mortgagee is an undivided half interest 
 in the property; if the amount equal or exceed the whole 
 value of the property, the taxable interest of the mortgagee 
 embraces the entire property. The value of the security can 
 never exceed the value of the property mortgaged; it may be 
 less, and is so if the amount secured be less than such value. 
 Now, under the Constitution, when, by the execution of a 
 mortgage, a taxable interest in the property held by natural 
 
Dist. Cal.] THE SANTA CLARA EAILROAD TAX CASE. 15 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 persons or by corporations oilier than railroad or quasi pub- 
 lic, is transferred by the owner to another party, or the 
 whole taxable interest is vested in him, the holder alone of 
 such interest is taxed for it. It is assessed against him ns 
 the owner of it, and against him alone could it be justly as- 
 sessed. But when, t>y a mortgage on the property of a 
 railroad or a quasi public corporation, a taxable interest in 
 such property is transferred by the corporation to another, 
 or the whole interest is vested in him, the holder of such 
 interest is exempted from taxation for it, and the corpora- 
 tion is assessed and taxed for it, notwithstanding the trans- 
 fer. No account is taken of the transfer of the taxable in- 
 terest in the estimate of the value of the property. It is 
 still assessed arid taxed to the original holder. 
 
 The discrimination thus made will more clearly appear by 
 an illustration of the practical operation of the provisions. 
 If, for example, A, owning property worth $20,000, should 
 execute a mortgage thereof to the Nevada Bank, in San 
 Francisco, to secure $10,000, the bank would hold a taxable 
 interest in that property to the amount of an undivided 
 half. Its liability for taxation would be precisely as 
 though an absolute conveyance of an undivided half inter- 
 est had been made to it. And the Constitution, as seen 
 above, requires that each, owner shall pay the tax on his 
 separate interest; and if he pay the tax chargaable on the 
 interest of the other, he shall be allowed for it, either by 
 an addition to the mortgage debt, or a discharge of a por- 
 tion of that debt according as he is the one or the other 
 party to the security. No one would pretend that the mort- 
 gagor should pay without such allowance the tax chargeable 
 to the bank, nor that the bank should pay the tax chargeable 
 to the mortgagor, except upon like condition. It would be 
 difficult to state any principle which would justify the exaction 
 from one of a tax leviable on the interest of the other. No 
 power in any State has ever been asserted going to that ex- 
 tent, except the power to confiscate. The exaction would 
 not be the taking of property by due process of law, even upon 
 the theories as to what constitutes such process asserted in 
 this case; it would be sheer spoliation by arbitrary power. 
 2 
 
16 THE SANTA CLARA RAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 If, however, a railroad corporation should execute its 
 mortgage to the Nevada Bank to secure a loan equal to half 
 or the whole of the value of its property, and thus transfer 
 to the bank a portion or the whole of its taxable interest in 
 the property, that which is thus condemned as sheer spolia- 
 tion would be enforced, if effect be given to the Constitu- 
 tion as it is written. The taxable interest in that case held 
 by the bank would not be assessed nor taxed to the bank. 
 If the mortgage should be for half of the value of the prop- 
 erty, the railroad company would still have to pay the tax 
 on the interest transferred, and would not be allowed any 
 credit on the mortgage for the amount paid. If the mort- 
 gage should be equal to or exceed the whole value of the 
 property, the railroad company, which would not in such a 
 case hold any taxable interest in the property, no more 
 than if it had been previously transferred by an absolute 
 conveyance, would still be required to pay the tax upon it, 
 and without any credit for the payment. On what princi- 
 ple, or by what species of reasoning a tax upon property 
 can be upheld and enforced against a party, be the party a 
 natural or an artificial person, when the taxable interest in 
 it had, at the time of the levy of the tax, been transferred 
 to another, I am at a loss to understand. This position of 
 the case was suggested to counsel on more than one occa- 
 sion during the argument; but no answer was made to it. 
 To every other position an answer was attempted, but to 
 this one none; and, as we. think, for the best of reasons, 
 because none was possible, unless indeed it be held that 
 the Constitution does not mean what in express language it 
 declares, that a mortgage " shall for 1he purposes of assess- 
 ment and taxation be deemed and treated as an interest in the 
 property affected thereby." 
 
 Under the provisions of ihe Constitution cited, the prop- 
 erty of the several railroad companies, defendants in these 
 cases, was assessed and taxed; and in such assessment and 
 taxation, all the injurious discriminations mentioned were ap- 
 plied against the companies, as will appear by a statement of 
 the proceedings. In considering them, it will tend to clear- 
 ness and brevity, if we confine what we have to sny principally 
 
Dist. Cal.] THE SANTA CLARA RAILROAD TAX CASE. 17 
 
 1883.] - Opinion of the Court Mr. Justice Field. 
 
 to the case of Santa Clara County against the Southern Pa- 
 cific Railroad Company. The circumstances distinguishing 
 the other cases from it do not affect the questions involved. 
 
 The Southern Pacific Railroad Company operates a rail- 
 road through several counties. The entire length of the 
 road is somewhat over 711 miles, of which 59 miles and 
 three-tenths of a mile are in the county of Santa Clara. The 
 principal place of business of the company is in the city of 
 San Francisco. Its stockholders are citizens of the United 
 States, some of whom reside in California and some in 
 other States. On the 1st of April, 1875, it was indebted to 
 divers persons in large sums of money advanced for the 
 construction and equipment of its road; and to secure this 
 indebtedness and to complete the construction and equip- 
 ment, it executed and delivered to certain parties, D. O. 
 Mills and Lloyd Tevis, of the city and county of San Fran- 
 cisco, a mortgage upon its road, franchises, rolling-stock, 
 and appurtenances, and upon a large number of tracts of 
 land, situated in different counties, aggregating over 11,- 
 000,000 acres, which were the property of the company. 
 The indebtedness amounted to the sum of $32,520,000, and 
 consisted of various bonds of the company. A portion of 
 these bonds, amounting to about $1,632,000, has been paid; 
 and so has the accruing interest on all of them. The bal- 
 ance of the bonds, amounting to about $30,898,000, remains 
 a subsisting indebtedness.. This mortgage was soon after- 
 wards placed on record in the office of the Recorder of 
 Deeds in the several counties of the State in which the 
 property is situated. 
 
 The State Board of Equalization assessed the franchise, 
 roadway, roadbed, rails, and rolling-stock of that portion 
 of the road which is designated as its Main Branch, being 
 IGO^V miles in length, at $2,412,600, making $15,000 a 
 mile, and apportioned to the county of Santa Clara $889,- 
 500. Upon this amount thus assessed and apportioned, 
 the taxes were levied for which the action of that county 
 is brought. Another portion of the road, designated as 
 the Southern Division, was assessed in a similar manner, 
 and the amount apportioned to the different counties 
 
18 THE SANTA CLARA RAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 through which the road passed. In making the assess- 
 ment of the different portions, no deduction was allowed 
 for the mortgage thereon. No account was taken of the 
 mortgage; it was not treated as an interest in the property, 
 nor as affecting in any way the liability of the mortgagor 
 for the tax. If a natural person had executed the mort- 
 gage, it being for an amount exceeding the value of the 
 property, the whole taxable interest would have been 
 treated as in the mortgagees, and they alone would have 
 been assessed and taxed; they alone would have been held 
 amenable ta a personal action for the taxes. If the mort- 
 gagor had paid the taxes to prevent a sale of the property, 
 the amount paid would have been credited on the mort- 
 gage. It can hardly require further illustration to show 
 the discrimination against railroad companies in the 
 matter of taxation, where property is subject to a mort- 
 gage. Not only is the company taxed in such a case for 
 interests it does not possess, but it is not allowed any credit 
 by those who do possess the interests for the amount 
 exacted. 
 
 The same discrimination will appear against railroad 
 companies in the taxation of their property, if we treat 
 mortgages thereon, not as interests in the property, which 
 the Constitution declares they shall be deemed and treated 
 to be, but as mere liens or incumbrances thereon. The basis 
 of all ad valorem taxation is necessarily the assessment of 
 the property, that is, the estimate of its value. Whatever 
 affects the value necessarily increases or diminishes the tax 
 proportionately. If, therefore, any element which is taken 
 into consideration in the valuation of the property of one 
 party be omitted in the valuation of the property of an- 
 other, a discrimination is made against the one and in favor 
 of the other, which destroys the uniformity so essential to 
 all just and equal taxation. Such an element exists where 
 in the assessment of property subject to a mortgage, the 
 value of the mortgage is deducted if the property be owned 
 by a natural person, and is not deducted if owned by a rail- 
 road corporation. And the Constitution of the State de- 
 clares that in the ascertainment of values as the basis of 
 
Dist. Gal.] THE SANTA CLARA KAILROAD TAX CASE. 19 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 taxation such deduction shall be allowed in the one case and 
 denied in the other. Instances of every-day occurrence will 
 show the effect of this discrimination in a clear light. A 
 natural person and a railroad company own together a parcel 
 of property in equal proportions subject to a mortgage. 
 In estimating the value of the undivided half belonging 
 to the natural person, half of the amount of the mortgage 
 is deducted. In estimating the value of the undivided 
 half belonging to the railroad company, no part of the 
 mortgage is deducted. The discrimination is made against 
 the company, for no other reason than its ownership. Take 
 another instance: a natural person and a railroad company 
 own tracts of land adjoining each other, of the same quan- 
 tity and of equal fertility and richness, both being subject 
 to a mortgage. In the estimate of the value of the prop- 
 erty belonging to the natural person the amount of the 
 mortgage is deducted; in the estimate of the value of the 
 property belonging to the railroad company the mortgage 
 is not deducted. Of course, the valuation of the latter, 
 and consequent tax is proportionately increased; and this 
 discrimination is made solely because of the ownership of 
 the property. Should these two owners exchange their 
 lands, the valuation made would change with the owner- 
 ship. Should the railroad company sell its tract to an in- 
 dividual, the assessing officers would at once be bound to 
 return a different valuation of the property as a basis for 
 taxation. Every one sees that the valuation has not in 
 fact changed with the ownership, and, therefore, that the 
 discrimination is made solely because a rule is adopted in 
 the assessment of the property of one party different from 
 that applied in the assessment of the propert}^ of the other, 
 purely on account of its ownership. A corresponding dif- 
 ference in the tax which the different owners must pay 
 follows the assessment. Thus, if two adjoining tracts are 
 subject to a mortgage each for half its value, the natural 
 person owning one of them pays a tax on the other half, 
 while the corporation must pay a tax on the whole of its 
 tract, that is, double the tax of the individual. Thus, if 
 each tract be worth $100,000, subject to a mortgage of 
 
20 THE SANTA CLARA KAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 $50,000, and the rate of taxation be two per cent., the tax 
 of the individual will be $1,000; the tax of the corpora- 
 tion will be $2,000. If, then, these owners should ex- 
 change their lands, the property which this year is thus 
 taxed at $1,000, will next year be taxed at double the 
 amount; and the other tract, this year taxed at $2,000, 
 will next year be taxed at one-half that sum. The prop- 
 erty which is now half exempt will then be subject to tax- 
 ation to its full value; and that which is now taxable at its 
 full value will then be half exempt; and all this change in 
 valuation without any change in the character or use of 
 the property, but solely ou account of the change in its 
 ownership. 
 
 The principle which sanctions the elimination of one 
 element in assessing the value of property held by one 
 party, and takes it into consideration in assessing the value 
 of property held by another party, would sanction the 
 assessment of the property of one at less than its value 
 at a half or a quarter of it and the property of another at 
 more than its value at double or treble of it according 
 to the will or caprice of the State. To-day, railroad com- 
 panies are under its ban, and the discrimination is against 
 their property. To-morrow, it may be that other institu- 
 tions will incur its displeasure. If the property of rail- 
 road companies may be thus sought out and subjected to 
 discriminating taxation, so, at the will of the State by a 
 change of its Constitution, may the property of churches, 
 of universities, of asylums, of savings banks, of insurance 
 companies, of rolling and flouring mill companies, of min- 
 ing companies, indeed of any corporate companies ex- 
 isting in the State. The principle which justifies such a 
 discrimination in assessment and taxation, where one of 
 the owners is a railroad corporation and the other a natural 
 person, would also sustain it where both owners are natu- 
 ral persons. A mere change in the State Constitution 
 would effect this if the Federal Constitution does not for- 
 bid it. Any difference between the owners, whether of 
 age, color, or race, or sex, which the State might designate 
 would be a sufficient reason for the discrimination. It 
 
Dist. Cal.] THE SANTA CLARA EAILROAD TAX CASE. 21 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 would be a singular comment' upon the weakness and char- 
 acter of our republican institutions, if the valuation and 
 consequent taxation of property could vary according as the 
 owner is white, or black, or yellow, or old, or young, or male, 
 or female. A classification of values for taxation upon any 
 such ground would be abhorrent to all notions of equality 
 of right among men. Strangely indeed would the law 
 sound in case it read that in the assessment and taxation 
 of property, a deduction should be made for mortgages 
 thereon if the property be owned by white men or by old 
 men, and not deducted if owned by black men or by young 
 men; deducted if owned by landsmen, not deducted if 
 owned by sailors; deducted if owned by married men, not 
 deducted if owned by bachelors; deducted if owned by men 
 doing business alone, not deducted if owned by men doing 
 business in partnerships or other associations; deducted if 
 owned by trading corporations, not deductejl if owned 
 by churches or universities; and so on, making a discrim- 
 ination whenever there was any difference in the charac- 
 ter, or pursuit, or condition of the owner. To levy taxes 
 upon a valuation of property thus made is of the very 
 essence of tyranny, and has never been done except by 
 bad governments in evil times, exercising arbitrary and 
 despotic power. 
 
 Until the adoption of the Fourteenth Amendment, there 
 was no restraint to be found in the Constitution of the 
 United States against the exercise of such power by the 
 States. In many particulars the States were previously 
 limited; their sovereignty was a restricted one. They could 
 not declare war, nor make treaties of peace. They could not 
 enter into compacts with each other. They could not pass 
 a bill of attainder, nor an ex post facto law, nor a law 
 impairing the obligation of contracts. They could not 
 interfere with the exercise of the powers, nor obstruct the 
 laws of the Federal Government. But in many other par- 
 ticulars the power of the States was supreme, subject to no 
 control by the Constitution of the United States. The 
 original amendments were only limitations upon the Fed- 
 eral Government, and did not affect the States. Among 
 
22 THE SANTA CLARA EAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 the powers still held by the States was the power of taxa- 
 tion. When not interfering with any power or purpose or 
 agent of the Federal Government, there was 110 limitation 
 upon its exercise. Except as restrained by their own Con- 
 stitutions, the States might impose taxes upon any property 
 within their jurisdiction, and, as said in the Delaware Tax 
 Case (18 "Wall. 231), the manner in which its value was 
 assessed and the rate of taxation, however arbitrary or 
 capricious, were mere matters of legislative discretion; and 
 it was not for the Court to suggest in any case that a more 
 equitable mode of assessment or rate of taxation might be 
 adopted than the one prescribed by the Legislature of the 
 State. 
 
 The first section of the Fourteenth Amendment places a 
 limit upon all the powers of the State, including among 
 others that of taxation. After stating that all persons 
 born or naturalized in the United States, and subject to the 
 jurisdiction thereof, are citizens of the United States and 
 of the State in which they reside, it declares that "no 
 State shall 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 (dropping 
 the designation citizen) of life, liberty, or property without 
 due process of law, nor deny to any person within its juris- 
 diction the equal protection of the laws." The amendment 
 was adopted soon after the close of the civil war, and un- 
 doubtedly had its origin in a purpose to secure the newly 
 made citizens in the full enjoyment of their freedom. But 
 it in in no respect limited in its operation to them. It is 
 universal in its application, extending its protective force 
 over all men of every race and color, within the jurisdic- 
 tion of the States throughout the broad domain of the Ee- 
 pnblic. A constitutional provision is not to be restricted 
 in its application because designed originally to prevent an 
 existing wrong. Such a restricted interpretation was urged 
 in the Dartmouth College Case, to prevent the application of 
 the provision prohibiting legislation by States impairing 
 the obligation of contracts to the charter of the college, it 
 being contended that the charter was not such a contract 
 
Disfc. Cal.] THE SANTA CLARA BAILROAD TAX CASE. 23 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 as the prohibition contemplated. Chief Justice Marshall, 
 however, after observing that it was more than possible that 
 the preservation of rights of that description was not par- 
 ticularly in view of the framers of the Constitution when 
 that clause was introduced, said: "It is not enough to say 
 that this particular case was not in the mind of the conven- 
 tion when the article was framed, nor of the American 
 people when it was adopted. It is necessary to go further, 
 and to say that, had this particular case been suggested, 
 the language would have been so varied as to exclude it, or 
 it would have been made a special exception. The case 
 being within the words of the rule, must be within its oper- 
 ation likewise, unless there be something in the literal con- 
 struction so obviously absurd or mischievous, or repugnant 
 to the general spirit of the instrument, as to justify those 
 who expound the Constitution in making it an exception." 
 (4 Wheat. 644.) All history shows that a particular griev- 
 ance suffered by an individual or a class, from a defective 
 or oppressive law, or the absence of any law touching the 
 matter, is often the occasion and cause for enactments, con- 
 stitutional or legislative, general in their character, de- 
 signed to cover cases not merely of the same, but all cases of 
 a similar nature. The wrongs which were supposed to be 
 inflicted upon or threatened to citizens of the enfranchised 
 race, by special legislation directed against them, moved 
 the framers of the amendment to place in the fundamental 
 law of tlie nation provisions not merely for the security of 
 those citizens, but to insure to all men, at all times and at 
 all places, due process of law, and the equal protection of 
 the laws. Oppression of the person and spoliation of prop- 
 erty by any State were thus forbidden, and equality before 
 the law was secured to all. In the argument of the San 
 Mateo Case in the Supreme Court, Mr. Edmunds, who was 
 a member of the Senate when the amendment was discussed 
 and adopted by that body, speaking of its broad and catholic 
 spirit, said: "There is no word in it that did not undergo 
 the completest scrutiny. There is no word in it that was 
 not scanned, and intended to mean the full and beneficial 
 thing that it seems to mean. There was no discussion 
 
24 THE SANTA CLARA KAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 omitted; there was no conceivable posture of affairs to the 
 people who had it in hand," which was not considered. 
 And the purpose of this long and anxious consideration 
 was that protection against injustice and oppression should 
 be made forever secure to use his language "secure, not 
 according to the passion of Vermont, or of Ehode Island, 
 or of California, depending upon their local tribunals for 
 its efficient exercise but secure as the right of a Iloman 
 was secure, in every province and in every place, and se- 
 cure by the judicial power, the legislative power, and the 
 executive power of the whole body of the States and the 
 whole body of the people." 
 
 With the adoption of the amendment the power of the 
 States to oppress any one under any pretence, or in any 
 form, was forever ended; and henceforth all persons within 
 their jurisdiction could claim equal protection under the 
 laws. And by equal protection is meant equal security to 
 every one in his private rights in his right to life, to lib- 
 erty, to property, and to the pursuit of happiness. It im- 
 plies not only that the means which the laws afford for such 
 security shall be equally available to him, but that no one 
 shall be subject to any greater burdens or charges than such 
 as are imposed upon all others under like circumstances. 
 This protection attends every one everywhere, whatever be 
 his position in society or his association with others, either 
 for profit, improvement, or pleasure. It does not leave him 
 because of any social or official position which he may hold, 
 nor because he may belong to a political body, or to a reli- 
 gious society, or be a member of a commercial, manufac- 
 turing, or transportation company. It is the shield which 
 the arm of our blessed Government holds at all times over 
 every one, man, woman, and child, in all its broad domain, 
 wherever they may go and 'in whatever relations they may 
 be placed. No State such is the sovereign command of 
 the whole people of the United States no State shall touch 
 the life, the liberty, or the property of any person, however 
 humble his lot or exalted his station, without due process 
 of law; and no State, even with due process of law, shall 
 
Dist. Gal.] THE SANTA CLARA BAILED AD TAX CASE. 25 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 deny to any one within its jurisdiction the equal protection 
 of the laws. 
 
 Unequal taxation, so far as it can be prevented, is, there- 
 fore, with other unequal burdens, prohibited by the amend- 
 ment. There undoubtedly are, and always will be, more or 
 less inequalities in the operation of all general legislation, 
 arising from the different conditions of persons, from their 
 means, business, or position in life, against which no fore- 
 sight can guard. But this is a very different thing, both in 
 purpose and effect, from a carefully devised scheme to pro- 
 duce such inequality; or a scheme, if not so devised, neces- 
 sarily producing that result. Absolute equality may not 
 be attainable, but gross and designed departures from it 
 \vill necessarily bring the legislation authorizing it within 
 the prohibition. The amendment is aimed against the per- 
 petration of injustice, and the exercise of arbitrary power 
 to that end. The position that unequal taxation is not 
 within the scope of its prohibitory clause would give to it 
 a singular meaning. It is a matter of history that unequal 
 and discriminating taxation levelled against special classes, 
 has been the fruitful means of oppressions, and the cause 
 of more commotions and disturbances in society, of insurrec- 
 tions and revolutions, than any other cause in the world. 
 It would, indeed, as counsel in the SanMateo Case ironically 
 observed, be a charming spectacle to present to the civilized 
 world, if the amendment were to read as contended it does 
 in law "Nor shall any State deprive any person of his 
 property without due process of law, except it be in the form 
 of taxation nor deny to any person within its jurisdiction 
 the equal protection of the laws, except it be by taxation" 
 No such limitation can be thus engrafted by implication upon 
 the broad and comprehensive language used. The power of 
 oppression by taxation, without due process of law, is not 
 thus permitted; nor the power by taxation to deprive any 
 person of the equal protection of the laws. 
 
 Soon after the adoption of the amendment, Congress 
 recognized by its legislation the application of the prohibi- 
 tion to unequal taxation. The original Civil Eights Act, 
 previously passed, made persons of the emancipated race 
 
26 THE SANTA CLARA EAILROAD TAX CASE. [Cir. Cfc. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 citizens, and declared that all citizens of the United States 
 of every race or color should have the same rights in every 
 State and Territory to make and enforce contracts, to sue, be 
 parties, and give evidence; to inherit, purchase, lease, sell, 
 own, and convey real and personal property, and to the 
 benefit of all laws and proceedings for the security of per- 
 sons and property, as was enjoyed by white citizens, and 
 should be subject to like punishments, pains, and penalties, 
 and to none other. After the adoption of the amendment 
 the act was re-enacted, and to the clause that all persons 
 should enjoy the same rights as white citizens, and be sub- 
 ject to like punishments, pains, and penalties, it added and 
 subject only to like "taxes, licenses, and exactions of every 
 kind, and to no other." The Congress which re-enacted the 
 Civil Rights Act with this addition was largely composed 
 of those who had voted for the amendment; and it is well 
 known that oppressions by unequal taxation were the sub- 
 ject of consideration before the Committee of the two 
 Houses under whose direction the amendment was pro- 
 posed. J3ut were this otherwise, and were the wrong of 
 such unequal taxation not prominently in the minds of the 
 f ramers, it being within the language, it must be held to be 
 within the operation of the prohibition. As truly and elo- 
 quently said by Mr. Conkling, in the argument of the San 
 Matco Case: "If it be true that new needs have come, if it 
 be true that wrongs have arisen or shall arise which the 
 f ramers in their forebodings never saw; wrongs which shall 
 be righted by the words they established; then all the more 
 will those words be sanctified and consecrated to humanity 
 and progress." 
 
 The fact to which counsel allude, that certain property is 
 often exempted from taxation by the States, does not at all 
 militate against this view of the operation of the Four- 
 teenth Amendment in forbidding the imposition of unequal 
 burdens. Undoubtedly since the adoption of that amend- 
 ment the power of exemption is much more restricted than 
 formerly but that it may be extended to property used for 
 objects of a public nature, is not questioned that is, 
 where the property is used for the promotion of the public 
 
Dist. Cal.] THE SANTA CLARA RAILROAD TAX CASE. 27 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 well-being, and not for any private end. Thus property 
 used for public instruction, for schools, colleges, and uni- 
 versities, which are open to all applicants on similar condi- 
 tions, may properly be exempted. The public benefit is 
 the equivalent to the State for the tax which would other- 
 wise be exacted. If buildings, used as churches for public 
 worship, are also sometimes exempted, it must be because, 
 apart from religious considerations, churches are regarded 
 as institutions established to inculcate principles of sound 
 morality, leading citizens to a more ready obedience to the 
 laws. Whatever the exemption, it can only be sustained 
 for the public service or benefit received. The equality of 
 protection which the Fourteenth Amendment declares that 
 no State shall deny to any one is not thus invaded. That 
 amendment requires that exactions upon property for the 
 public shall be levied according to some common ratio to 
 its value, so that each owner may contribute only his ju$t 
 proportion to the general fund. When such exaction is 
 made without reference to a common ratio, it is not a tax, 
 whatever else it may be termed; it is rather a forced con- 
 tribution, amounting in fact to simple confiscation. As 
 justly said by the Supreme Court of Kentucky, in the cel- 
 ebrated case of Lexington v. McQuillan's Heirs, whenever 
 the property of a citizen is taken from him by the sovereign 
 will and appropriated without his consent to the benefit of 
 the public, the exaction should not be considered as a tax 
 unless similar contributions be exacted by the same public 
 will from such members of the same community as own the 
 same kind of property; and, although there may be a dis- 
 crimination in the subjects of taxation, still persons of the 
 same class and property of the same kind must generally 
 be subjected alike to the same common burden. (9 Dana, 
 Ky., 513.) 
 
 The cases of People v. Weaver (100 U. S. 539), and of 
 Evansville Bank v. Brilton (105 Id. 322), will illustrate the 
 character of the discrimination of which the defendants 
 complain. By an Act of Congress passed in 1864 and re- 
 enacted in the Revised Statutes, the shares in national 
 banks are allowed to be included in the valuation of the 
 
28 THE SANTA CLARA RAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 personal property of the owDer in the assessment of taxes 
 imposed by authority of the State in which the banks are 
 located, subject to two restrictions; that the taxation shall 
 not be at a greater rate than is assessed upon other mon- 
 eyed capital in the hands of individual citizens of the State, 
 and that the shares owned by non-residents of the State 
 shall be taxed at the place where the bank is located. (R. 
 S., sec. 5219.) In Peoples. Weaver (100 U. S. 539), the 
 meaning of these restrictions upon the State was consid- 
 ered by the Supreme Court, and it was held : 
 
 1st. That the restriction against discrimination has refer- 
 ence to the entire process of assessment, and includes the 
 valuation of the shares as well as the rate of percentage 
 charged thereon; 
 
 2d. That a statute of New York, which established a mode 
 of assessment by which such shares were valued higher in 
 proportion to their real value than other moneyed capital, 
 was in conflict with the restriction, although no greater 
 percentage was levied on such valuation than on other mon- 
 eyed capital; and, 
 
 3d. That a statute which permitted a party to deduct his 
 just debts from the valuation of his personal property, ex- 
 cept so much as consisted of those shares, taxed them at a 
 greater rate than other moneyed capital, and was therefore 
 void as to them. 
 
 The discrimination there condemned, by which an in- 
 creased value was given to the shares of the national banks 
 beyond what was given to other moneyed capital, is a dis- 
 crimination similar to that made by the elimination of 
 mortgages in estimating the value of railroad property in 
 the cases before us. In Evansville Bank v. Britton, the doc- 
 trine of this case is approved, and it was held that the tax- 
 ation of shares in the national banks, under a statute of 
 Indiana, without permitting the owner to deduct from their 
 assessed value the amount of his bona-fide indebtedness, as 
 he was permitted to do in the case of other investments of 
 moneyed capital, was a discrimination forbidden by the 
 act of Congress. 
 
 That the proceeding, by which the taxes claimed in these 
 
Dist. Cal.] THE SANTA CLARA EAILROAD TAX CASE. 29 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 several actions were levied against the railroad companies 
 on taxable interests with which they had parted, was not 
 due process of law, seems to us so obviously true as to re- 
 quire no further illustration. Any additional argument 
 would rather tend to obscure a truth which should be evi- 
 dent upon its simple statement. And if we assume that the 
 mortgage in each case was a mere lien or incumbrance on 
 the property affected, and not an interest in it, as the Con- 
 stitution declares it is, then also is it clear that its elimi- 
 ninationas an element in the valuation of the property of the 
 defendants for taxation, while it was considered in the valu- 
 ation of the property of natural persons, was a discrimination 
 against the former, and led to unequal taxation against 
 them. Iii neither view, therefore, was the assessment valid, 
 and the taxation levied upon it cannot be sustained. 
 
 To justify these discriminating provisions and maintain 
 the action in face of them, the plaintiffs have taken positions 
 involving doctrines which sound strangely to those who 
 have always supposed that the constitutional guaranties ex- 
 tend to all persons, whatever their relations, and protect 
 from spoliation all property, by whomsoever held. These 
 positions are substantially as follows: That persons cease 
 to be within the protection of the Fourteenth Amendment, 
 and as such entitled to the equal protection of the laws, 
 when they become members of a corporation; that property 
 when held by persons associated together in a corporation 
 is subject to any disposition which the State may, at its 
 will, see fit to make; that, in any view, the property, upon 
 which the taxes claimed were levied, was classified by its 
 use, taken out of its general character as real and personal 
 property, and thus lawfully subjected to special taxation; 
 and that the power of the State cannot be questioned by the 
 Southern Pacific Railroad Company by reason of the cove- 
 nant in its mortgage. These positions are not advanced by 
 counsel in this language nor with the baldness here given; 
 but they mean exactly what is here stated, or they mean 
 nothing, as will clearly appear when we analyze the language 
 in which they are presented. 
 
 Private corporations and under this head, with the ex- 
 
30 THE SANTA CLABA RAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 ception of sole corporations, with which we are not now 
 dealing, all corporations other than those which are public 
 are included private corporations consist of an association 
 of individuals united for some lawful purpose, and permitted 
 to use a common name in their business, and have succession 
 of membership without dissolution. As said by Chief Jus- 
 tice Marshall, " The great object of an incorporation is to 
 bestow the character and properties of individuality on a 
 collective and changing body of men." (Providence Bank 
 v. Billings, 4 Pet. 514, 562.) In this State they are formed 
 under general laws. By complying with certain prescribed 
 forms any five persons may thus associate themselves. In 
 that sense corporations are creatures of the State; they 
 could not exist independently of the law, and the law may, 
 of course, prescribe any conditions not prohibited by the 
 Constitution of the United States, upon which they may be 
 formed and continued. But the members do not, because 
 of such association, lose their rights to protection, and 
 equality of protection. They continue, notwithstanding, to 
 possess the same right to life and liberty as before, and also 
 to their property, except as they may have stipulated other- 
 wise. As members of the association of the artificial body 
 the intangible thing called by a name given by themselves 
 their interests, it is true, are undivided, and constitute 
 only a right during the continuance of the corporation to 
 participate in its dividends, and, on its dissolution, to a 
 proportionate share of its assets; but it is property never- 
 theless, and the courts will protect it, as they will any other 
 property, from injury or spoliation. 
 
 Whatever affects the property of the corporation, that is, 
 of all the members united by the common name, neces- 
 sarily affects their interests. If all the members of the 
 corporation die or withdraw from the association, the cor- 
 poration is dead; it lives and can live only through its 
 members. When they disappear the corporation disap- 
 pears. Whatever confiscates or imposes burdens on its 
 property, confiscates or imposes burdens on their prop- 
 erty; otherwise nobody would be injured by the proceed- 
 iug. Whatever advances the prosperity or wealth of the 
 
Dist. Cal.] THE SANTA CLARA RAILROAD TAX CASE. 31 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 corporation, advances proportionately the prosperity and 
 business of the corporators; otherwise no one would be 
 benefited. It is impossible to conceive of a corporation 
 suffering an injury or reaping a benefit except through its 
 members. The legal entity, the metaphysical being that 
 is called a corporation, cannot feel either. So, therefore, 
 whenever a provision of the Constitution or of a law guar- 
 antees to persons protection in their property or affords to 
 them the means for its protection, or prohibits injurious 
 legislation affecting it, the benefits of the provision or law 
 are extended to corporations, not to the name under which 
 different persons are united, but to the individuals com- 
 posing the union. The courts will always look through 
 the name to see and protect those whom the name repre- 
 sents. Thus, inasmuch as the Constitution extended the 
 judicial power of the United States to controversies be- 
 tween citizens of a State and aliens, and between citizens 
 of different States, because its framers apprehended that 
 State tribunals in such controversies might be swayed by 
 local feelings, prejudices, or attachments, Chief Justice 
 Marshall, speaking for the whole Supreme Court, held that 
 corporations were within the provision. "Aliens, or citi- 
 zens of different States," said that great judge, "are not 
 less susceptible of these apprehensions, nor can they be 
 supposed to be less the objects of constitutional provision, 
 because they are allowed to sue by a corporate name. 
 That name, indeed, cannot be an alien or a citizen, but 
 the persons whom it represents may be the one or the 
 other; and the controversy is, in fact and in law, between 
 these persons suing in their corporate character, by their 
 .corporate name, for a corporate right, and the individual 
 against whom the suit may be instituted. Substantially 
 and essentially, the parties in such a case, where the mem- 
 bers of the corporation are aliens or citizens of a different 
 State from the opposite party, come within the spirit and 
 terms of the jurisdiction conferred by the Constitution on 
 the national tribunals. Such has been the universal under- 
 standing on the subject." (The United States v. Devaux, 5 
 Cranch, 61, 87.) 
 3 
 
32 THE SANTA CLARA EAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 Similar was the construction given by that court to a 
 clause in the treaty of peace of 1783 between the United 
 State and Great Britain. The sixth article provided that 
 there should be "no future confiscation made nor any 
 prosecutions commenced against any person or persons for 
 or by reason of the part which he or they may have taken in 
 the present war, and that no person shall on that account 
 suffer any future loss or damage, either in his person, lib- 
 erty, or property." The State of Vermont undertook to 
 confiscate the property of an English corporation and give 
 it away. The corporation claimed the benefit of the article, 
 and recovered the property against the objection that the 
 treaty applied only to natural persons, and could not em- 
 brace corporations, because they were not persons who could 
 have taken part in the war, or be considered British subjects. 
 Much stronger is that case than the one now before us; but 
 the Supreme Court looked with undimmed vision through 
 the legal entity, the artificial creation of the State, and saw 
 the living human beings whom it represented, and protected 
 them under their corporate name. (Society for the Propaga- 
 tion of the Gospel in Foreign Parts v. Town of New Haven, 8 
 Wheat. 464.) 
 
 The Fifth Amendment to the Constitution declares that 
 no person shall " be deprived of life, liberty, or property, 
 without due process of law." This is a limitation upon the 
 Federal Government similar to that which exists in the 
 Constitution of several of the States against their own leg- 
 islative bodies; and the term person thus used has always 
 been held, either by tacit assent or express adjudication, 
 whenever the question has arisen, to extend, so far as 
 property is concerned, to corporations; because to protect 
 them from spoliation is to protect the corporators also. 
 
 Now, the Fourteenth Amendment extends in this respect 
 the same prohibition to the States that the Fifth Amend- 
 ment did to the Federal Government "Nor shall any State 
 deprive any person of life, liberty, or property without due 
 process of law" and it adds to the inhibition, "nor deny 
 to any person within its jurisdiction the equal protection of 
 the laws." By every canon of construction known to the 
 
Dist. Cal.] THE SANTA CLARA RAILROAD TAX CASE. 33 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 jurisprudence of the country, the same meaning must be 
 given to the term person in the latter provision as in the 
 former. Surely these great constitutional provisions, which 
 have been, not inaptly, termed a new Magnu Charta, cannot 
 be made to read, as counsel contend; "Nor shall any 
 State deprive any person of life, liberty, or property with- 
 out due process of law, unless he be associated with others in 
 a corporation, nor deny to any person within its jurisdic- 
 tion the equal protection of the laws, unless he be a member 
 of a corporation." How narrow and petty would provisions 
 thus limited appear in the fundamental law of a great 
 people ! 
 
 The constitutional guaranties of due process of law and 
 of equality before the law would be dwarfed into compara- 
 tive insignificance, and almost emasculated of their pro- 
 tective force, if restricted in their meaning arid operation, as 
 contended by counsel. A large proportion of our people 
 are members of some corporation religious, educational, 
 scientific, trading, manufacturing, or commercial and the 
 amount of property held by them embraces the greater part 
 of the wealth of the country. According to the report of 
 the Commissioner of Railroads, made to the Secretary of 
 the Interior, for the year ending June 30, 1882, the railroad 
 companies operated that year 104,813 miles of railway, and 
 transported 350 million tons of freight, of the estimated 
 value of 12,000 million dollars. The value of these roads 
 alone was 2,600 million dollars, and they employed that 
 year 1,200,000 persons in operating the roads, besides 400,- 
 000 in construction a total of 1,600,000 persons about 
 one thirty-third part of our population estimated at 
 53,000,000.* 
 
 The value of the property of manufacturing companies is 
 over 1,000 million dollars; of national banks, over 700 mill- 
 ions; of insurance companies, over 600 millions; of mining 
 companies, over 300 millions; and of telegraph companies 
 and shipping companies, each over 100 million dollars. 
 Indeed, the aggregate wealth of all the trading, commercial, 
 
 * These figures are taken by the Commissioner from the estimate of Henry 
 V. Poor, a compiler of railroad statistics. 
 
34 THE SANTA CLARA EAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 manufacturing, mining, shipping, transportation, and other 
 companies engaged in business, or formed for religious, edu- 
 cational, or scientific purposes, amounts to billions upon bill- 
 ions of dollars and yet all this vast property, which keeps our 
 industries flourishing, and furnishes employment, comforts, 
 and luxuries to all classes, and thus promotes civilization 
 and progress, is lifted, according to the argument of coun- 
 sel, out of the protection of the constitutional guaranties, 
 by reason of the incorporation of the companies that is, 
 because the persons composing them, amounting in the ag- 
 gregate to nearly half the entire population of the country, 
 have united themselves in that form under the law for the 
 convenience of business. If the property for that reason is 
 exempted from the protection of one constitutional guar- 
 anty, it must be from all such guaranties. If because of it, 
 the property can be subjected to unequal and arbitrary im- 
 positions, it may for the same reason be taken from its 
 owners without due process of law, and taken by the State 
 for public use without just compensation. If the position 
 be sound, it follows that corporations hold all their property 
 and the right to its use and enjoyment at the will of the 
 State; that it may be invaded, seized, and the companies 
 despoiled at the State's pleasure. It need hardly be said 
 that there would be little security in the possession of prop- 
 erty held by such a tenure, and of course little incentive to 
 its acquisition and improvement. 
 
 But in truth the State possesses no such arbitrary power 
 over the property of corporations. When allowed to ac- 
 quire and own property, they must be treated as owners, 
 with all the rights incident to ownership. They have a con- 
 stitutional right to be so treated. Whatever power the 
 State may possess in granting or in amending their charters, 
 it cannot withdraw their "property from the guaranties of 
 the Federal Constitution. As was said in the San Matco 
 Case: "It cannot impose the condition that they shall not 
 resort to the Courts of law for the redress of injuries or the 
 protection of their property; that they shall make no com- 
 plaint if their goods are plundered and their premises in- 
 vaded; that they shall ask no indemnity if their lands be 
 
Disfc. Cal.] THE SANTA CLARA KAILROAD TAX CASE. 35 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 seized for public use, or be taken without due process of Jaw; 
 or that they shall submit without objection to unequal and 
 oppressive burdens arbitrarily imposed upon them; that, in 
 other words, over them and their property the State may 
 exercise unlimited and irresponsible power. Whatever the 
 State may do, even with the creations of its own will, it 
 must do in subordination to the inhibitions of the Federal 
 Constitution." 
 
 The doctrine of unlimited power of the State over corpo- 
 rations, their franchises and property, simply because the}' 
 are created by the State, so frequently and positively af- 
 firmed by counsel, has no foundation whatever in the law 
 of the country. By the decision of the Supreme Court of 
 the United States in the Dartmouth College Case, it was set- 
 tled, after great consideration, that the charter of a corpora- 
 tion under which its franchise its capacity to do business 
 and hold property is conferred, is a contract between the 
 corporators and the State, and, therefore, within the pro- 
 tection of the Federal Constitution prohibiting legislation 
 impairing the obligation of contracts. So far from the State 
 having unlimited control over the franchises and property 
 of corporations, because of its paternity to them, it has un- 
 der that decision only such as it possesses over the con- 
 tracts and property of individuals. It cannot, from that 
 fact alone, alter, lessen, or revoke their franchises, although 
 they be a free gift. It cannot, from that fact alone, interfere 
 with or impose any burdens upon their property, except as 
 it can interfere with and impose burdens upon the property 
 of individuals. Such is the doctrine not only of the Dart- 
 mouth College Case, but of an unbroken line of decisions of 
 the Supreme Court of the United States, and of the Supreme 
 Courts of the several States, since that case. To avoid that 
 limitation upon their power, most of the States, in charters 
 since granted, have reserved a right to repeal, amend, or alter 
 them, or have inserted in their constitutions clauses reserv- 
 ing aright to their legislatures to repeal, alter, or amend the 
 charters, or to repeal, alter, or amend general laws under 
 which corporations are permitted to be formed. This res- 
 ervation, in whatever form expressed, applies onty to the 
 
36 THE SANTA CLARA BAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 contract of incorporation, without which it would be beyond 
 revocation or change by the State. It removes any impedi- 
 ment which would otherwise exist to legislation affecting 
 that contract. It leaves the corporation in the same posi- 
 tion it would have occupied had the Supreme Court held in 
 the Dartmouth College Case that charters are not contracts, 
 and that laws repealing or modifying them do not impair 
 the obligation of contracts. It accomplishes nothing more; 
 therefore, the legislation authorized by it must relate to the 
 contract embodied in the charter, amending, altering, or 
 abrogating its provisions. Legislation touching any other 
 subject is not affected by it neither authorized nor forbid- 
 den. Its whole scope and purpose is to enable the State to 
 pass laws with respect to the charter the contract of incor- 
 poration which would otherwise be in conflict with the 
 prohibition of the Federal Constitution. Legislation deal- 
 ing with the corporation in any other particular must, 
 therefore, depend for its validity upon the same conditions 
 which determnie the validity of like legislation affecting 
 natural persons. 
 
 The State may, of course, accompany its grant with such 
 conditions as it may deem proper for the management of 
 the affairs of the corporation which do not impinge upon 
 any provision of the Federal Constitution; and by the reser- 
 vation clause it will retain control over the grant and may 
 withdraw it or modify it at pleasure. It is on this ground 
 that the State has asserted a right to regulate the charges 
 the fares and freights of corporations. But it is a novel 
 doctrine that it can on that ground also control their prop- 
 erty, appropriate it, burden it, and despoil them of it, as it 
 may choose, unrestrained by any constitutional inhibitions. 
 That doctrine has no standing as yet in the law of this 
 country. The property acquired by corporations is held 
 independently of any reserved power in their charters. By 
 force of the reservation the State may alter, amend, or revoke 
 what it grants; nothing more. It does not grant the tangible 
 and visible property of the companies, their roads, their 
 roadways, roadbeds, rails, or rolling-stock. These are their 
 creation or acquisition. Over them it can exercise only such 
 
Dist. Gal.] THE SANTA CLARA EAILROAD TAX CASE. 37 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 power as may be exercised through its control of the fran- 
 chises of the companies, and such as may be exercised over 
 the property of natural persons engaged in similar business. 
 
 As justl}' said by the Supreme Court of Michigan, speak- 
 ing by Mr. Justice Cooley: "It cannot be necessary at this 
 day to enter upon a discussion in denial of the right of the 
 Government to take from either individuals or corporations 
 any property which they may rightfully have acquired. In 
 the most abitrary times such an act was recognized as pure 
 tyranny, and it has been forbidden in England ever since 
 Magna Charta, and in this country always. It is immaterial 
 in what way the property was lawfully acquired, whether by 
 labor in the ordinary vocations of life, by gift or descent, 
 or by making profitable use of a franchise granted by the 
 State, it is enough that it has become private property, and 
 it is then protected by the law of the land." (Detroit v. 
 Detroit and Howell Plank Road Compan?/, 43 Mich. 146-7.) 
 
 But it is urged that, even with an admission of these 
 positions, property may be divided into classes and sub- 
 jected to different rates; that such classification may be 
 made from inherent differences in the nature of different 
 parcels of property, and also from the different uses to 
 which the same property may be applied; and it is sought 
 to place the tax levied in these cases under one of these 
 heads. As already mentioned, the Constitution of the 
 State provides with respect to property that it shall be taxed 
 in proportion to its value; it provides for no specific tax 
 upon any article. The classification of property, either from 
 its distinctive character or its peculiar use, must be made 
 within the rule prescribing taxation according to value. 
 Real and personal property differing essentially in their 
 nature may undoubtedly be subjected to differentiates; real 
 property may be taxed at one rate, personal property at 
 another. But in both cases the tax must bear a definite 
 proportion to the value of the property. So, also, if use be 
 the ground of classification, for which a different rate of 
 taxation is prescribed, the rate must still bear a definite 
 proportion to the value. Now, there is no difference in the 
 rate of taxation prescribed by the law of the State for the 
 
33 THE SANTA CLARA EAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 property of railroad corporations and that prescribed for 
 the property of individuals. There is only one rate pre- 
 scribed for all property. There is, therefore, as said in the 
 San Mateo suit, no case presented for the application of the 
 doctrine of classification either from the peculiar character 
 of railroad property or its use. 
 
 The ground of complaint is not that any different rate of 
 taxation is adopted for there is none but that a different 
 rule is followed in ascertaining the value of the property of 
 railroad corporations, as a basis for taxation, from that fol- 
 lowed in ascertaining the value of property held by natural 
 persons. In estimating the value in one case certain ele- 
 ments are considered by which the value as a basis for tax- 
 ation is lessened; in estimating the value in another case 
 those elements are omitted by which the valuation is pro- 
 portionately increased. All property of railroad corpora- 
 tions, \vhether used in connection with the operation of 
 their roads or entirely distinct from any such use, is esti- 
 mated without regard to any mortgages thereon, while the 
 property of natural persons is valued with a deduction of 
 such mortgages. 
 
 Of the property of the railroad company the Southern 
 Pacific several million acres of farming lands are included 
 in the same mortgage which covers the roadway, roadbed, 
 rails, and rolling-stock of the company. No distinction is 
 made in the assessment of the value of any of this property 
 because of the use of it. The whole is assessed in the same 
 manner without regard to the mortgage thereon; and the 
 taxes on the whole of it thus assessed, with the exception 
 of the taxes on the roadbed, roadway, rails, and rolling- 
 stock, have been paid by the companies, or parties to whom 
 since the levy certain parcels have been sold. The dis- 
 crimination between the railroad companies and individual 
 proprietors, in the estimate of the value of their property, 
 is made because of its ownership, and not from any specific 
 differences in the character of the property, or in the spe- 
 cific uses to which it is applied. 
 
 The farming lands held by the company are not different 
 in character from adjoining farming lands held by natural 
 
Disfc. Cal.] THE SANTA CLARA KAILROAD TAX CASE. 39 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 persons, yet they are assessed under the system established 
 by the Constitution of the State upon different principles. 
 The roadbed, roadway, rails, and rolling-stock of the rail- 
 road companies, are not different in their nature or use 
 from the roadbed, roadway, rails, and rolling-stock owned 
 iu matij; cases by natural persons, yet they are subject to a 
 different rule of assessment. It is not classifying property 
 to make a distinction of that character in estimating its 
 value as a basis for taxation. It is making the amount of 
 taxation depend, not upon the nature of the property or its 
 use, but upon its ownership. And if this can be done, 
 there is no protection against unequal and oppressive taxa- 
 tion. As justly observed by Mr. Edmunds in the San 
 Mateo Case: "If you once concede the point that you may 
 classify different rates upon the values of things, or may 
 put up your values on different principles, as values by de- 
 duction or otherwise which is the same thing stated in 
 another way then there is no check upon the exercise of 
 arbitrary power. The mob or commune that can get pos- 
 session of the State Legislature for one term may despoil 
 every one of the citizens whom it chooses to despoil, and 
 the liberty and the security of the Constitution of the 
 United States, secured through painful exertion and great 
 consideration, crystallized in unmistakable language his- 
 toric indeed, and beneficent as it is historic, securing na- 
 tional intrinsic rights everywhere and to everybody will 
 turn out to be an utter sham and delusion." 
 
 If to the position of counsel, that property may be classi- 
 fied simply because owned by a corporation, and thus 
 differently assessed, we add the further position that the 
 owner of the property assessed has no constitutional right 
 to have notice of the assessment, or to be heard respecting 
 it, though it be double or treble the value of the property 
 though the property be assessed at thousands, when worth 
 only hundreds we have a system established with a power 
 of oppression under which no free man should ever be con- 
 tented to live. 
 
 In the argument of counsel, the distinction between taxes 
 for licenses and franchises, and taxation upon values, seems 
 
40 THE SANTA CLARA KAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 to have been overlooked; and because no notice is required 
 in the former case, and no opportunity given to be heard, 
 therefore it is contended that the rule is not sound, that 
 notice is necessary, and an opportunity of being heard in 
 the latter case where an assessment is made upon property 
 and values are found upon evidence; yet the distinction 
 is plain and everywhere recognized. A license tax paid 
 by an insurance company of another State, in order to 
 exercise its corporate powers in this State, is the consid- 
 eration given for a privilege which the company may or 
 may not take; if taken, the fee must be paid. Of course, 
 no notice there is necessary. If a person wishes a license 
 to do business at a particular place, or of a particular kind, 
 such as selling liquors, cigars, clothes, or keeping a restau- 
 rant or hotel in a city, he is only to pay what the law re- 
 quires and go into the business. .Notice in such cases 
 would be of no service to him, and no hearing could change 
 the result. And ' the State may exact the payment of a 
 particular sum -such as it deems proper as a condition 
 of the grant of corporate powers, or for their continuance, 
 and may reserve the right to alter this condition as it may 
 choose; or rather, the State might have exercised such 
 power and made such exaction had she not by her constitu- 
 tion declared that franchises should be assessed and taxed 
 as property, according to their value. But for this pro- 
 vision no notice could be required of the amount demanded 
 for the privilege granted, nor opportunity of being heard 
 respecting it; for notice or hearing could be of no service 
 to the company. Here we are not considering of the 
 compensation to be paid for franchises or privileges of 
 any kind, whether designated as taxes or license fees, bufc 
 of taxation upon values. Where these are to be ascertained, 
 and evidence is to be taken for that purpose, and a de- 
 termination is to be made which is judicial in its character, 
 there the owner must in some form in some tribunal 
 have an opportunity afforded him to be heard respecting 
 the proceeding under which his property may be taken 
 before such proceeding becomes final and the valuation is 
 
Dist. Cal.] THE SANTA CLARA EAILKOAD TAX CASE. 41 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 irrevocably fixed. And in such cases there can be no valid 
 deprivation of his property without it. 
 
 The notice to which we refer need not be a personal 
 citation; it is sufficient if it be given by a law designating 
 the time and place where parties may contest the justice 
 of the valuation. As a general rule only a statutory notice 
 is given. The State may designate the kind of notice and 
 the manner in which it shall be given. All that we assert, 
 or have asserted, is that there must be a notice of some 
 kind which will call the attention of the parties to the 
 subject, and inform them when and where they will be per- 
 mitted to expose any alleged wrong in the valuation of 
 which they may complain. 
 
 It was with reference to the class of cases, where values 
 are to be found upon evidence, that we said in the San 
 Mateo suit, that notice and opportunity to be heard were 
 essential to the validity of the assessment, and without 
 which the proceeding by which the tax-payer's property 
 was taken from him, would not be due process of law. 
 We have heard nothing in the argument of the present 
 cases or in the criticism of the authorities, which in the 
 slightest degree affects the accuracy of the statement. In 
 Stuart v. Palmer (74 N. Y. 191) the Court of Appeals of 
 New York, in an elaborate opinion, speaking by Mr. Justice 
 Earl, said: "It is difficult to define with precision the exact 
 meaning and scope of the phrase 'due process of law.' 
 Any definition which could be given would probably fail 
 to comprehend all the cases to which it would apply. It 
 is probably better, as recently stated by Mr. Justice Miller, 
 of the United States Supreme Court, ' to leave the meaning 
 to be evolved by the gradual process of judicial inclusion 
 and exclusion, as the cases presented for decision shall 
 require, with the reasoning on which such decisions may 
 be founded.' (Davidson v. Neiv Orleans, 96 U. S. 104.) It 
 may, however, be stated generally, that due process of law 
 requires an orderly proceeding, adapted to the nature of 
 the case, in which the citizen has an opportunity to be 
 heard, and to defend, enforce, and protect his rights. A 
 hearing or an opportunity to be heard is absolutely es- 
 
42 THE SANTA CLARA KAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 sential. We cannot conceive of due process of law without 
 this." And, again, "It Las always been the general rule in 
 this country, in every system of assessment and taxation, 
 to give the person to be assessed an opportunity to be 
 heard at some stage of the proceedings. That due process 
 of law requires this has been quite uniformly recognized." 
 
 Numerous other authorities might be cited to the same 
 purport, and the language of Judge Cooley, in his Treatise 
 on Taxation, which exhibits a thoughtful consideration of 
 the subject, and a careful examination of the adjudged 
 cases, expresses the established law. Speaking of tax cases 
 lie says: "We should say that notice of proceedings in such 
 cases, and an opportunity for a hearing of some descrip- 
 tion, were matters of constitutional right. It has been cus- 
 tomary to provide for them as a part of what is 'due process 
 of law ' for these cases, and it is not to be assumed that con- 
 stitutional provisions, carefully framed for the protection of 
 property, were intended or could be construed to sanction 
 legislation under which officers might secretly assess one 
 for any amount in their discretion, without giving him an 
 opportunity to contest the justice of the assessment. It has 
 often been very pointedly and emphatically declared that it 
 is contrary to the first principles of justice that one should 
 be condemned unheard, and it has also been justly observed 
 of taxing officers, that ' it would be a dangerous precedent 
 to hold that any absolute power resides in them to tax as 
 they may choose without giving any notice to the owner. It 
 is a power liable to great abuse,' and it might safely have 
 been added, it is a power that under such circumstances 
 would be certain to be abused. 'The general principles of 
 law applicable to such tribunals oppose the exercise of any 
 such power.' " (Cooley on Taxation, 266.) 
 
 The suggestion of counsel that there is a difference in the 
 law as to notice and opportunity of being heard, where an 
 assessment is made for local purposes and where it is made 
 under a statute providing revenue for the State, is without 
 foundation. Taxation for local improvements, or for city, 
 county, or town purposes, involves the exercise of the same 
 power which is exerted in taxation for State or general pur- 
 
Disfc. Cal.] THE SANTA CLAKA KAILEOAD TAX CASE. 43 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 poses. It is the sovereign power of the State in both cases 
 which authorizes the tax, whether that power be exerted 
 directly by an act of the Legislature, or by a municipal 
 body as an instrumentality of the State. "That these as- 
 sessments," says Cooley, speaking of such as are special, 
 "are an exercise of the taxing power has over and over 
 again been affirmed, until the controversy may be regarded 
 as closed." And this statement is supported in a note to 
 his treatise, by a reference to numerous adjudged cases. 
 (p. 430.) 
 
 The object both of taxation for general purposes and of 
 assessments for local purposes is to raise money. In both 
 cases property is valued and a certain proportion of the val- 
 uation taken for the designated purpose. Whether that pur- 
 pose be general or local, it in no respect changes the essen- 
 tial character of the proceeding. The property from which 
 the exaction is to be made is less extensive in the one case 
 than in the other; but in both there must be evidence of its 
 value and a judicial determination respecting it. And the 
 fact that in cases of local improvements there is sometimes 
 a consideration also of the benefits to be received, takes 
 nothing from the judicial character of the proceeding. 
 
 The clause of the Constitution which forbids deprivation 
 of property without due process of law, places liberty under 
 the same guaranty, and no one can be deprived of either 
 property or liberty under the name of taxation, any more 
 than under any other name, by officers of the State without 
 some notice of their proceedings and a right to be heard 
 respecting their determination before it is executed. 
 
 The covenant in the mortgage of the Southern Pacific 
 Kailroad Company cannot affect one way or the other the 
 right of the plaintiff to recover against that company. The 
 power of the State is not enlarged nor diminished by it. 
 It is not made with the State and could not be enforced 
 by it. So far as the power or action of the State is con- 
 cerned, it cannot possibly have any influence. It is a mat- 
 ter which concerns only the parties. They can by arrange- 
 ment vary it any day; they may enlarge it, qualify it, or 
 release it whenever they choose. It would be strange, in- 
 
44: THE SANTA CLARA EAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 deed, if the State's power of taxation depended in any way 
 upon the stipulation of third parties, or the validity of a tax 
 could be affected by it. The covenant reads as follows: 
 "And the said party of the first part hereby agrees and cove- 
 nants to and with the said parties of the second part, and 
 their successors in said trust, that it will pay all ordinary 
 and extraordinary taxes, assessments, and other public bur- 
 dens and charges which shall or may be imposed upon the 
 property herein described and hereby mortgaged, and every 
 part thereof." Then follows a provision that the mortgagees 
 or any bondholder may, in case of default by the mortgagor, 
 pay and discharge the taxes and any lien or iucumbrauce 
 upon the property prior to the mortgage, and that for such 
 payments the party making them shall be allowed interest 
 and be secured by the mortgage. 
 
 The covenant is necessarily limited to such taxes as may be 
 lawfully levied on the mortgaged property, such as the mort- 
 gagor is personally bound to the State to pay, and to such 
 other liens as may arise from his previous contract with re- 
 spect to the property. The mortgagor could not be required 
 to pay any other taxes or discharge any other liens, and 
 should the mortgagees pay or discharge any other, they could 
 neither hold the mortgage as security for the amount, nor 
 the mortgagor liable. The covenant cannot be construed to 
 extend to any taxes levied in disregard of the Constitution 
 or laws, nor to such liens as may arise from a tax on other 
 than the mortgaged property, or from any act of the mort- 
 gagees, or any judgment against them. Should a judg- 
 ment, for instance, against them become a lien upon all their 
 iuterests in real property, and, among others, on that cre- 
 ated by the mortgage, it would not be embraced by the 
 covenant. That does not cover taxes levied or leviable on 
 the mortgage, nor on the bonds secured; they are not within 
 its terms, and the State cannot enlarge its meaning. 
 
 At the time the mortgage was given, there had been 
 conflicting decisions of the Supreme Court of the State 
 as to the liability of mortagages to taxation. It must be 
 supposed that the parties were well acquainted with these 
 rulings, and, though the last decision then rendered was 
 
Disk Cal.] THE SANTA CLARA KAILROAD TAX CASE. 45 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 against their taxation, it was the subject of popular com- 
 ment and discontent; and counsel inform us, was one of 
 the most potent causes which led to the calling of a conven- 
 tion to change the Constitution. If the parties, therefore, 
 had intended to enter into a covenant that should bind the 
 mortgagor to pay any taxes which might thereafter be levied 
 on the mortgage, it would have been the natural and easy 
 way to say so. Not having said so, we cannot impute to 
 the language used anything beyond its plain meaning and 
 that is, that the mortgagor would pay such taxes and dis- 
 charge such liens on the property as should be legally 
 chargeable to him; not such as the law might afterwards im- 
 pose upon the mortgagees. In fact, the covenant creates no 
 greater liability on the part of the mortgagor than would 
 have existed without it; and it was inserted only out of abun- 
 dant caution. Every mortgagor is bound to pay the taxes 
 lawfully levied on the property mortgaged, and to discharge 
 any liens created by his previous act; and if at any time the 
 mortgagee is compelled to pay the taxes and discharge such 
 liens to preserve the security, he can collect the amount 
 from the mortgagor. So the question comes back to the 
 original point in the case were the taxes for which the 
 present action was brought lawfully levied? If so, they can 
 be enforced, whatever may be the private relations or stipu- 
 lations between the parties to the security. If not lawfully 
 levied, if the law or State Constitution, under which they 
 were imposed, is in conflict with the inhibitions of the Fed- 
 eral Constitution, if the taxes were laid upon interests with 
 which the mortgagor had parted, they cannot be enforced, 
 whatever may be the pledges of the parties to each other. 
 The argument of the plaintiff amounts to this if the taxes 
 had been lawfully levied on the mortgage, the mortgagor 
 would have been obliged to pay them under its covenant; 
 therefore it is not injured by the illegality of the levy, and 
 not being injured by it, should not be heard to complain of 
 it, but be compelled to pay the taxes. The answer to this 
 specious reasoning is obvious. If the taxes are not lawfully 
 levied, there are none for the payment of which the cove- 
 nant can be invoked even by the mortgagees. The plaintiff 
 
46 THE SANTA CLAEA RAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of the Court Mr. Justice Field. [September, 
 
 must show that there rests upon the mortgagor a legal obli- 
 gation to the State to pay the taxes, arising upon its consti- 
 tution or laws, not from any stipulation the parties may have 
 made with each other, with which the State has no concern. 
 The action is not to enforce a lien upon the property; it is 
 for a personal demand, and a personal liability to the State 
 must be shown. No other liability of any kind to any party 
 can aid a recovery. 
 
 The covenant we have been considering is not contained 
 in the mortgage on the lands of the Central Pacific Com- 
 pany; and for such lands in California, amounting to upwards 
 of six hundred and fifty thousand acres, that company is as- 
 sessed and taxed without any deduction of the mortgage 
 from their value, just as the Southern Pacific Company is 
 taxed for its lauds. The amount due on the land mortgage 
 is over five and a half million dollars. 
 
 I have thus gone over, so far as I deem it necessary or 
 important, the several positions of counsel for the plaintiffs, 
 and in none of them do I find any sufficient answer to the 
 objection of the defendants. This opinion might, therefore, 
 close with a simple order directing judgment for the defend- 
 ants. But owing to misapprehensions that have largely pre- 
 vailed in the community since the trial of the San Mateo 
 Case, which involved similar questions, as to the effect of a 
 decision against the State upon its right to subject railroad 
 property to its just proportion of the public burdens, I will 
 venture to make some suggestions as to the manner in which 
 all such demands of the State may be enforced without in- 
 fringing any principle of Constitutional law. I am pro- 
 foundly sensible of the irritation which a supposed desire 
 to escape from the just burdens of government naturally 
 creates. The more powerful, the more wealthy the party, 
 the more intense the feeling and it finds expression in words 
 of bitter complaint, not merely against the party, but some- 
 times also against any administration of justice which toler- 
 ates such supposed evasion. It is sometimes forgotten that 
 the Courts cannot supply the defects of the law, nor always 
 correct the mistakes of public officers, nor the errors even 
 of learned counsel. Certainly no member of this Court 
 
Dist. Cal.] THE SANTA CLARA EAILROAD TAX CASE. 47 
 
 1883.] Opinion of the Court Mr. Justice Field. 
 
 would countenance the escape of anybody from his just ob- 
 ligations; but it cannot, with any seeming justice, declare 
 that one party shall discharge an obligation which the law, 
 properly administered, would impose upon another. Its 
 duty is to administer the law as it finds it, not to make it, 
 never forgetting that its administration must always be in 
 subordination to those great principles for the protection of 
 private rights, which are embodied in our National Consti- 
 tution, and which are of priceless value to every one in the 
 State. 
 
 The railroad companies in California are taxed yearly to 
 an amount exceeding $600,000. Their property is heavily 
 encumbered with mortgages, amounting to much more than 
 its actual value. Why should they not be allowed by law, 
 if they pay this sum, a credit for it on their mortgages, as 
 any natural person paying it would be allowed? Why should 
 this unjust discrimination be made against them? Why 
 should they by law be denied a credit for this more than 
 $600,000 a year ? Is there any justice in this denial ? There 
 is no difficulty in assessing and taxing the mortgages, if the 
 words " except as to railroad and other quasi public corpo- 
 rations" be eliminated from the Constitution as invalid. 
 The imaginary difficulty has arisen from the supposed neces- 
 sity of taxing the debts, which the bonds secured. As these 
 are held in different parts of the country, some out of the 
 State, it would be impossible, it is said, to reach them. But 
 the answer is that the taxes should be placed upon the mort- 
 gages, which for purposes of assessment and taxation, are 
 to be treated as interests in the property mortgaged, as much 
 so as if it had been unconditionally conveyed to the mort- 
 gagees. The records of the different counties show the 
 mortgages. The assessors can return to the Board of Equal- 
 ization the value of the property covered by the mortgages 
 in their respective counties, under section 3678 of the Polit- 
 ical Code. The Board would then have the value of the 
 property of the companies and the amount of the mortgages 
 before them. The mortgage of the Southern Pacific Com- 
 pany being greater than the value of the entire mortgaged 
 property, it would be assessed at such value. It coi 
 
48 THE SANTA CLAKA RAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J., concurring. [September, 
 
 as a mortgage, be worth more than the property. If neces- 
 sary or convenient, the assessment of the mortgage on the 
 roadway, roadbed, rails, and rolling-stock could be stated 
 separately from the value of the mortgage on other property 
 of the company, and apportioned to the different counties 
 as at present. The value of the mortgage on other property 
 could also be apportioned as required by the Political Code. 
 "Why then should not this system be pursued ? The State 
 would thus collect all the taxes which it ought to collect. 
 The tax being a lien upon the property, could be enforced 
 by a sale of the property, just as though it was levied on the 
 property, and not upon the mortgages. If the companies 
 should then pay the tax, they could by the law claim credit 
 for it on their mortgages; and it would be deducted in the 
 payment of the interest or principal of their bonds. Then 
 justice would be done to the corporations as it is done to 
 individuals. The same proceeding could be pursued with 
 the first mortgcige on the property of the Central Pacific 
 Company. That also being greater than the value of the 
 property, the State would be able to collect as large a reve- 
 nue as by taxation on the property itself, and the Company 
 would have the benefit of the payment by a credit on its 
 mortgage. 
 
 It follows from the views expressed, that findings must be 
 had for the defendants, and judgment in their favor entered 
 thereon. 
 
 CONCURRING OPINION. 
 
 SAWYER, Circuit Judge. The discussion in this opinion, 
 though applicable to all the cases tried, will have special 
 reference to the facts in the case of Santa Clara County v. 
 The Southern Pacific Eailroad Company. This case is simi- 
 lar in its main features to that of San Mateo v. Southern 
 Pacific Railroad Company-, decided by this Court last year. 
 (8 Sawyer, 281.) 
 
 The questions involved require for their solution a con- 
 struction of two clauses in the first section of the Fourteenth 
 Amendment to the Constitution of the United States, which 
 declare that no State shall " deprive any person of life, lib- 
 erty, or property without due process of law, nor deny to 
 
Dist. Cal.] THE SANTA CLARA RAILROAD TAX CASE. 49 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 any person within its jurisdiction the equal protection of 
 the laws." Does the requirement of due process of low ex- 
 tend to the taking of property by taxation, and does equality 
 of protection by the laws secure a person, whatever his 
 association with others in business, from the imposition of 
 greater burdens by taxation than such as are equally im- 
 posed upon others under like circumstances ? Or, are per- 
 sons excepted from the protection of these provisions when 
 their property is taken for the support of government, or 
 when they are associated with others in a corporation for 
 the more convenient transaction of their business? 
 
 First. As to the meaning of the phrase, "due process of 
 law," in the amendment, I used this language in the San 
 Mateo Case: "No one, I apprehend, w T ould for a moment 
 contend that a man's life, or his liberty, could be legally 
 taken away without notice of the proceeding, or without 
 being offered an opportunity to be heard; or that a proceed- 
 ing whereby his life or liberty should be forfeited, or per- 
 manently affected, without notice or opportunity to be heard 
 in his own defense, could, by any possibility, be by 'due 
 process of law.' In such cases there could be no just con- 
 ception of * due process of law,' that would not embrace 
 these elements of notice and opportunity to be heard. Any 
 conception excluding these elements would be abhorrent to 
 all our ideas of either law or justice. If these elements 
 must enter into and constitute an essential part of due pro- 
 cess of law in respect to life and liberty, they must also con- 
 stitute essential ingredients in due process of law where 
 property is to be taken; for the guaranty in the Constitu- 
 tion is found in the same provision, in the same connection, 
 and in the identical language applicable to all. One mean- 
 ing, therefore, cannot be attributed to the phrase with re- 
 spect to property, and another with respect to life and 
 liberty." (Id. 288.) 
 
 And it was argued that the same construction must be 
 given to the same language when used in the same relation 
 with reference to property, which is given to it when used 
 with reference to life and liberty, and, therefore, that due 
 process of law, whereby a party is to be deprived of his 
 
50 THE SANTA CLAEA KAILEOAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J. , concurring. [September, 
 
 property, as one element or ingredient, must include an op- 
 portunity to be beard. This principle was conceived to be 
 established by an unbroken line of authorities. On the trial 
 of this case counsel have vehemently assailed this doctrine, 
 accompanied with a confident assertion that it has not the 
 sanction of any authority, and that the only authority upon 
 the point is against it, and was not referred to by the Court 
 or by counsel in the San Mateo Case. It may be well, there- 
 fore, to give some further consideration to the position as- 
 serted. 
 
 No counsel has yet appeared who has endeavored to main- 
 tain the proposition that, if a man's life is taken, or he is 
 permanently deprived of his liberty, by some secret tribunal 
 or body of men, without having notice or an opportunity to 
 be heard in his own defense, he has had the benefit of " due 
 process of law." If there is anything that was settled 
 under the principles of the common and the constitutional 
 law of England, before the severance of the Colonies from 
 the mother country and the establishment of our National 
 Constitution, it is, that no man can be deprived of his life 
 or his liberty without being afforded an opportunity to be 
 heard in his own defense. The law of the land due pro- 
 cess of law vouchsafes to him this right or privilege. A 
 man deprived of life without having an opportunity to be 
 heard, is simply assassinated, or murdered; and the man 
 permanently immured in a dungeon for an imputed offense, 
 upon the order of any man or body of men, without an op- 
 portunity to be heard against the charge made, is arbitra- 
 rily and despotically deprived of his liberty without authority 
 of law without " due process of law," and in direct viola- 
 tion of " the law of the land." So, also, I have understood 
 it to be equally well established, as a part of the common 
 and constitutional law of -England, as a general rule, that 
 no man's property can be lawfully taken from him against 
 his will without an opportunity of being heard. 
 
 The rights of life, liberty, and property are all fundamen- 
 tal, personal rights of the same grade or character. They 
 are treated as such in the amendment to the Constitution in 
 question; and placed upon precisely the same legal footing, 
 
Dist. Cal.] THE SANTA CLARA EAILBOAD TAX CASE. 51 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 in the same sentence; the identical words, without even a 
 repetition, covering them all nor "shall deprive any per- 
 son of life, liberty, or property without due process of law." 
 No one has attempted to maintain the proposition, that a 
 person can be lawfully deprived of his life or liberty without 
 an opportunity to be heard, nor has any one, so far as I am 
 aware, endeavored to show that "due process of law," as a 
 general rule, respecting notice, and an opportunity to be 
 heard, means one thing with reference to depriving one of 
 life and liberty, and something else, with reference to de- 
 priving him of property. Counsel only seek to maintain 
 that "due process of law" does not, universally, require 
 an opportunity to be heard, as a condition of lawfully de- 
 priving one of his property, without considering the other 
 branch of the proposition. It devolves upon those who 
 maintain that there is a difference in the signification of 
 this clause, as a general rule, when applied to life and lib- 
 erty and' when applied to property, to clearly establish it; 
 and if there is an exception to the universality of the rule, 
 to point it out, and show that the case under consideration 
 is within the exception. 
 
 In combating the principle stated, it is insisted that the 
 language used by the court is too broad; that there are cases 
 peculiar cases as shown by the authority cited, to which 
 it is inapplicable. If this were so, it would only appear that 
 there may be exceptions to the general rule, depending upon 
 special circumstances and long-established usage. It would 
 then be necessary to show that the case in hand is within 
 some recognized exception, and this has not been done. 
 
 In the San Mateo Case we disclaimed any attempt to give 
 an accurate definition of the term "due process of law," 
 which should be " applicable to all cases," as it was not 
 deemed "necessary for the determination of that case." 
 This disclaimer left room for exceptions founded upon long 
 recognized and well-established usage. We there said that 
 " to take one's property by taxation is to deprive one of his 
 property; and if not taken in-pursuance of the law of the land, 
 in some due and recognized course of proceedings based upon 
 well-recognized principles in force before and at the time this 
 
52 THE SAXTA CLARA. KAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J. , concurring. [September, 
 
 clause ivas first introduced into the various constitutions and the 
 legislation of .the country is to take it without due process of 
 law." The doctrine was recognized that those forms and 
 courses of proceeding based upon well-recognized princi- 
 ples in force before and at the time of the adoption of onr 
 National Constitution, would be " due process of law." 
 The case of Murray's Lessee et al. v. Hoboken Land and Im- 
 provement Company (18 How. 274) is a case of the kind an 
 exception to the ordinary rule of law depending upon the 
 peculiar character, conditions, and circumstances of the 
 case. 
 
 The mode of proceeding in this particular class of cases 
 had the sanction of long-established usage in England be- 
 fore and down to the settlement of our country; and Mr. 
 Justice Curtis' whole opinion is a labored effort to show, 
 that the case he was discussing, was an exception to the 
 ordinary rule of law, dependent alone upon long-established 
 and exceptional usage. The case was that of a defaulting 
 public officer, who had collected a large amount of public 
 revenue of the United States, and appropriated it to his 
 own use. The act of Congress provided a summary mode 
 of proceeding to collect the money from him. It provided, 
 among other things, for an auditing of the defaulting 
 official's accounts, and certifying the amount due by the 
 proper officers of the Treasury (the accounts are made up 
 from the returns of the officer himself, and are matters of 
 record in the Treasury Department); that when so audited 
 and certified, it should become a lien on the property of the 
 defaulting officer, which should be enforced by seizure and 
 sale, under a distress warrant, issued by the solicitors of the 
 Treasury. The Constitution having invested the judicial 
 power in the courts, and declared that the judicial power 
 shall extend to controversies to which the United States 
 are a party, the questions were, whether these acts, under 
 the statute of 1820, were an exercise of judicial power, 
 vested solely in the courts; and if not an exercise of judicial 
 power, whether such a seizure, under the warrant, without 
 the action of the judicial power, did not deprive the party 
 of his property " without due process of law," in violation 
 
Dist. Cal.] THE SANTA CLARA RAILROAD TAX CASE. 53 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 of the provisions of the Constitution on that point. Or, as 
 stated by Mr. Justice Curtis himself, the questions were 
 whether "a collector of customs, from whom a balance of 
 account has been found to be due by accounting officers 
 of the Treasury, designated for that purpose by law, can be 
 deprived of his liberty, or property, in order to enforce pay- 
 ment of that balance, without the exercise of the judicial 
 power of the United States, and yet by 'due process of law,' 
 within the meaning of those terms in the Constitution; and 
 if so, then, secondly, whether the warrant in question was 
 such due process of law?" He discusses the question as to 
 what is meant by "due process of law," and concludes, that 
 a distress warrant, so far as the warrant itself is concerned, 
 is due process of law, provided there is no judicial action 
 necessary as a basis for it; for Congress can prescribe any 
 kind of process, so far as the form and mode of issue are 
 concerned. He then discusses the question, as to whether 
 the action of the Treasury Department, in auditing and cer- 
 tifying the account, constituted a sufficient basis for the 
 warrant to make the proceeding due process of law. There 
 being nothing in the Constitution to expressly authorize the 
 proceeding, he "looked to the usages and modes of pro- 
 ceedings existing in the common and statute laws of Eng- 
 land, before the emigration of our ancestors from England, 
 and which are not shown to have been unsuited to their 
 civil and political condition by having been acted on by 
 them after the settlement of this country." He found in re- 
 gard to debtors of the King defaulting receivers of the 
 revenue in particular that a summary remedy existed, and 
 a writ of extent might be levied upon their goods and lands; 
 but "to authorize a writ of extent, however, the debt must 
 be matter of record in the King's Exchequer." Thus the 
 debt was already ascertained by matter of record. 
 
 "In regard to debts due upon simple contracts other than 
 those due from collectors of the revenue, and other account- 
 ants of the Crown, the practice from very ancient times has 
 been to issue a commission to inquire as to the nature of the 
 debt" a proceeding of a strictly judicial nature, and, there- 
 fore, due process of law. These proceedings were had under 
 
54: THE SANTA CLARA EAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J., concurring. [September, 
 
 various acts of Parliament that omnipotent legislative body 
 which could repeal Hagna Cliarta itself. 
 
 Mr. Justice Curtis proceeds: "This brief sketch of the 
 modes of proceeding to ascertain and enforce payment of bal- 
 ances due from receivers of the revenue in England, is suffi- 
 cient to show that the methods of ascertaining the existence 
 and amount oisuch debts, and compelling their payment, have 
 varied widely from the usual course of the common law on 
 other subjects ; and that as respects such debts, due from such 
 officers, the law of the land authorized the employment of 
 auditors, and an inquisition without notice, and a species of 
 execution, bearing a very close resemblance to what is 
 termed a warrant of distress in the act of 1820, now in ques- 
 tion." "It is certain, that this diversity in the law of the 
 land, between public defaulters and ordinary debtors, was un- 
 derstood in this country and entered into the legislation of 
 the colonies and provinces, and more especially of the 
 States, after the Declaration of Independence, and before 
 the formation of the Constitution of the United States." 
 
 As thus seen, this mode of enforcing the payment of bal- 
 ances was limited to defaulting collectors, and "receivers 
 of the public revenues of England, and where the debts 
 were, of record in the King's Exchequer." And it shows that 
 the methods of ascertaining the existence and amount of 
 such debts and compelling their payment have varied ividely 
 from the visual course of the common law on other subjects; 
 "and as respects such debts due from such officers, 'the law 
 of the laud ' authorized " a summary process similar to that 
 of the law of 1820; and "this diversity in the 'law of the 
 land' between public defaulters and ordinary debtors was 
 understood in this country." Thus, this mode of proceed- 
 ing was an exception to the general rule as to what is " the 
 law of the land," or " due pTocess of law," made in favor of 
 the King against those who accepted office from him, under 
 and subject to laws burdened, at the time, with peculiar and 
 stringent remedies, and then violated their duties and trusts 
 by appropriating the public revenues collected, instead of 
 putting them into the Treasury; and whose indebtedness 
 was " matter of record in the King's Exchequer." This ex- 
 
Dist. Cal.] THE SANTA CLAKA KAILROAD TAX CASE. 55 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 ception is recognized by the Court, but as an exception, and 
 the decision is put upon the ground that it is an exception, 
 and not the rule. " For," says Mr. Justice Curtis, " though 
 'due process of law' generally implies actor, reus, judex, reg- 
 ular allegations, opportunity to answer, and a trial according 
 to some settled course of judicial proceedings (2 lust. 47, 50; 
 Hake v. Henderson, 4 Dev., N. C., 15; Taylor v. Porter, 4 
 Hill, 146; Van Zant v. Waddell, 2 Yerg. 260; State Bank v. 
 Cooper, Id. 599; Jones' Heirs v. Perry, 10 Id. 59; Green v. 
 Briggs, 1 Curtis, 311), yet this is not universally true." An 
 exception, then, is found in cases against defaulting public 
 officers ivhose debts are of record. And such was the case of 
 Murray's Lessee v. Hoboken Land and Improvement Company. 
 
 The Court, in speaking of duties levied, and of default- 
 ing officers, further says: "What officers should be ap- 
 pointed to collect the revenue thus authorized to be raised, 
 and to disburse it in payment of the debts of the United 
 States; what duties should be required of them; when and 
 how, and to whom they should account, and what security 
 they should furnish, and to ivliat remedies they should be sub- 
 jected to enforce the proper discharge of their duties, Congress 
 loas to determine. In the exercise of their powers, they have 
 required collectors of customs to be appointed; made it in- 
 cumbent on them to account, from time to time, with certain 
 officers of the Treasury Department, and to furnish sureties 
 by bond for the payment of all balances of the public money 
 which may become due from them. 'And by the act of 1820, 
 now in question, they have undertaken to provide summary 
 means to compel 'these officers and in case of their default, 
 their sureties to pay such balances of the public money as may 
 be in their hands." 
 
 Whatever may have been the grounds of the distinction 
 originally made between defaulters of the public revenue 
 and other citizens, the case of such 'defaulting officers is 
 clearly shown to'be an exception to the' general rule, rest- 
 ing upon very special circumstances, and the case cited and 
 relied on is a striking illustration of the maxim that " the 
 exception proves the rule." 
 
 But, again, under the statute of 1820 (3 Stat. U. S. 595), 
 
56 THE SANTA CLARA KAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J., concurring. [September, 
 
 by the provisions of section 4, the party did in fact have 
 an opportunity to be heard before he could be deprived 
 of his property. That section provided "that if any per- 
 son should consider himself aggrieved by any warrant 
 issued under this act, he may prefer a bill of complaint 
 to any District Judge of the United States, setting forth 
 the nature and extent of the injury of which he complains," 
 and have a hearing. It is true that there was a determina- 
 tion of his liability, and process issued, which would be- 
 come final and conclusive if he did not ask for a hearing, 
 and Mr. Justice Curtis observes upon this section: "The 
 act of 1820 makes such a provision for reviewing the de- 
 cision of the accounting officers of the Treasury. But un- 
 til it is reviewed it is final and binding." So in all cases 
 of taxes under the Constitution of California, except where 
 the assessment is by the State Board of Equalization, the 
 assessment is first made by the assessor, and the tax-payer 
 may afterwards, on a proper petition, have the action of 
 the assessor reviewed by the Board of Equalization, and 
 thus have an opportunity to be heard before his property 
 is finally appropriated; yet, if he does not apply for such 
 review, the tax levy becomes final and conclusive, and will 
 be collected in the ordinary way by seizure and sale, or 
 such other means as may be provided. 
 
 Both the ordinary tax-payer under the laws of California 
 and the defaulting officers under the act of 1820, there- 
 fore, have an opportunity to be heard before their property 
 can be finally appropriated, in a similar sense, and at a 
 corresponding stage of the proceeding. If the opportunity 
 thus afforded the tax-payer is in accordance with due 
 process of law within the general rule, it is not apparent 
 why the opportunity afforded the defaulting officer by the 
 act of 1820 is not also. ^Phey both stand upon the same 
 footing as to the time when an opportunity to be heard is 
 given the first determination before a hearing being only 
 provisional; the accounting and seizure under the act of 
 1820 being something in the nature of an attachment to 
 secure a lieu, with an opportunity to be afterwards heard if 
 the amount claimed by the Government is not, in fact, due. 
 
Disk Gal.] THE SANTA CLARA EAILKOAD TAX CASE. 57 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 Iii our judgment, this case in no sense or particular con- 
 flicts with the point decided by us as to the general rule 
 and the rule applicable to that case in the San Maleo 
 County Case; on the contrary, we think it a strong case to 
 support the rule. It was cited by counsel and considered 
 by us in the San Maleo Case, but we did not think it mili- 
 tated against our decision, and we did not deem it neces- 
 sary to extend the discussion by noticing it in the opinions 
 delivered. But after carefully reviewing the case, in con- 
 sequence of its being so confidently relied on, and the only 
 one relied on, as being inconsistent with our decision on 
 this point, we think it may well be cited by us as a strong 
 authority in support of our judgment. These tax cases 
 certainly are not within the exception recognized in that 
 case. The case is the only authority cited unless the Illi- 
 nois Railroad Tax Cases (92 U. S. 575) were so regarded by 
 counsel claimed to be in conflict with our decision on this 
 point, and the Hoboken Land Case cited had no relation at 
 all to what is necessary to constitute a valid levy of a pub- 
 lic tax. No authority was cited to show that a tax levy 
 upon property to be assessed upon evidence of its value is 
 one of the exceptions to the general rule, that an oppor- 
 tunity to be heard before property can be taken from its 
 owner and appropriated to public use, is an essential 
 element of "due process of law." 
 
 In the Illinois KailroadTax Cases, referred to by counsel, 
 the points discussed and relied on were, that the act under 
 which the tax was levied and equalized was void as being 
 in contravention of the Constitution of Illinois; and that 
 the bills in chancery filed presented no case for an injunc- 
 tion, for the reason that there had been no payment or 
 tender of so much of the tax as was conceded ought to be 
 paid. The court rested its decision mainly upon the latter 
 ground, but also held that as the Supreme Court of Illinois 
 had decided the act not to be in contravention of the State 
 Constitution, that decision would control the action of the 
 Courts of the United States. The Court, however, ex- 
 pressed its concurrence with the views of the State Supreme 
 Court on that point. In the course of the opinion delivered, 
 
58 THE SANTA CLARA BAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J., concurring. [September, 
 
 it was said, that the State Board of Equalization of Illinois, 
 in equalizing the taxes of the several counties- the equal- 
 ization being by classes and counties need give no notice 
 to individual tax-payers, other than such as the law afforded; 
 but, as I understand the decision, this was said with refer- 
 ence to the point, whether the statute was valid under the 
 State Constitution. There does not appear to have been 
 any point argued, or relied on, as to what constitutes "due 
 process of law;" and the court in its decision does not de- 
 cide, discuss, or even allude to the question, as to what are 
 the necessary elements of "due process of law," with ref- 
 erence to taxation, or otherwise, within the meaning of the 
 Fourteenth Amendment to the National Constitution. That 
 question was, evidently, not considered. We, therefore, 
 do not regard the observations made in the course of the 
 opinion upon statutory notice in its relation to the equaliza- 
 tion of taxes, on the question of the validity of the statute 
 under the State Constitution, or other casual remarks upon 
 points not argued, or well considered, as authoritative upon 
 the point now under consideration. 
 
 This case, as was the San Mateo Case, has been laboriously 
 prepared, and elaborately argued by many eminent counsel, 
 and 1 if the industry of the Attorney-General, and of a large 
 nu ; mber of attorneys and special counsel for the numerous 
 c'dunties interested has failed to find any recognition of the 
 principle they were endeavoring to maintain, either in the 
 practice of the several States, in the text-books, or decisions, 
 or even dicta of the courts, we think it will be safe to pre- 
 sume that none can be found. The assertion of counsel, 
 which is extraordinary for the positiveness with which it is 
 made, that the court "finds no warrant whatever in the 
 books" for the views expressed in the San Mateo Case, that 
 an -opportunity to be heard, before property can be cona- 
 pulsorily taken from a person in the form of a general tax 
 upon property, is an essential element in "due process of 
 law," may be attributed to the zeal of the advocate. It is 
 not founded upon any pretense that the language quoted 
 from" the various cases cited, is not found in the decisions, 
 but on the ground that in some of the cases the decision did 
 
Dist. Cal.] THE SANTA CLARA EAILEOAD TAX CASE. 59 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 not turn upon the precise point, whether such an opportu- 
 nity is an essential element of "due process of law," and 
 that in other cases the question arose in relation to local 
 assessments for street inprovements and the like,, and not on 
 assessments for taxes for general revenue under laws pro- 
 Tiding for the ordinary general expenses of the State, county, 
 or city. 
 
 As to the first class of cases, one of the counsel of the 
 defendants well says, and his language is adopted as a clear 
 general statement of a principle often acted upon by the 
 courts: "The existence of doctrines and rules of law is often 
 shown and established by a continuous and uniform series 
 of judicial dicta, incorporated into their opinions by judges 
 arguendo, although, perhaps, the actual facts of the cases 
 under discussion did not absolutely require the statement 
 of such doctrines or rules. And here you will discrimi- 
 nate. * * * These expressions of judicial opinion may 
 be correct, or may not be correct. They may be expressions 
 of well-settled rules, of well-settled and established princi- 
 ples principles, the statement of which is not absolutely 
 necessary to the final decision and yet a continuous and 
 uniform series of such judicial statements is often very high, 
 in fact the highest evidence of the existence of the rule of 
 law which they do set out. One simple dictum may not be 
 of much weight, or it might have much weight, depending 
 largely upon the ability, the character, and authority of the 
 judge. But a uniform consensus of such judicial expressions 
 of opinion, even when they are dicta of different judges in 
 various courts, especially when they have been accepted by 
 able text-writers, and not contradicted by a single direct 
 decision, is as high evidence of a doctrine or rule as can be 
 found." 
 
 In all the cases of this class cited by the court, even if the 
 decision did not turn upon this point of constitutional law, 
 the discussion was cognate to it, and the Judges clearly and 
 distinctly stated the right to an opportunity to be heard, as 
 a constitutional right. Some of these declarations can 
 scarcely be called dicta, and they relate both to general 
 taxation and local assessments. While such assertions of 
 
60 THE SANTA CLARA EAILBOAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J., concurring. [September, 
 
 the principle of law may not be of so controlling a character 
 as a decision of a court of acknowledged authority, directly 
 determining the point in issue upon mature consideration, 
 they are, certainly, of some authority, as being the deliber- 
 ately expressed opinions of eminent Judges, and entitled 
 to great weight. So, also, so distinguished a jurist and 
 text-writer as Chief Justice Cooley, gives it as his deliber- 
 ate opinion as well as states it as a rule drawn from the 
 authorities cited by him that notice of the proceedings 
 and opportunity to be heard are essential. His language 
 is: " We should say that notice of proceedings in such cases 
 and an opportunity for a hearing of some description were 
 matters of constitutional right. It has been customary to 
 provide for them, as a part of what is ' due process of law ' 
 for these cases, and it is not to be assumed that constitu- 
 tional provisions, carefully framed for the protection of 
 property, were intended, or could be construed to sanction 
 legislation under which officers might secretly assess one 
 for any amount in their discretion, without giving him an 
 opportunity to contest the justice of the assessment. It 
 has often been pointedly and emphatically declared that it 
 is contrary to the first principles of justice that one should 
 be condemned unheard; and it has also been justlj 7 observed 
 of 'taxing officers that 'it would be a dangerous precedent 
 to hold that any absolute power resides in them to tax, as 
 they may choose, without giving any notice to the owner. 
 It is a power liable to great abuse,' and it might safely have 
 been added, it is a power that under such circumstances 
 would be certain to be abused." "The general principles 
 of law applicable to such tribunals oppose the exercise of 
 any such power." 
 
 In the other class of cases arising out of local assess- 
 ments the point was directly in issue, and the point in the 
 case upon which the decision turned, and in no case was 
 there any distinction drawn between taxation for special 
 local purposes and general taxation. There can be no dif- 
 ference. In either case, whether general taxation or local 
 assessment for special purposes, the tax or assessment is 
 levied and collected under and by virtue of the sovereign 
 
Dist. Cal.] THE SANTA CLAEA BAILED AD TAX CASE. 61 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 power of taxation. There is no difference in the power or 
 principle exercised. The only difference recognized is the 
 difference in the mode of ascertaining the proper amount to 
 be paid by each. Both are assessed and collected for a 
 public purpose, as the party's share of the public burden, 
 but the local assessment is distributed over a smaller num- 
 ber of persons and a more limited territory, and is usually 
 assessed upon that part of the property supposed to be 
 especially benefited. It is not always, and perhaps not 
 usually, assessed according to the value of the property, 
 but according to benefits, or according to the square foot 
 or front foot or number of acres, or on some such principle 
 of apportionment. It is as necessary to apportion it ac- 
 cording to some fixed, uniform rule, requiring action of a 
 judicial nature, as in the case of general taxation. This rule 
 is the only distinction recognized both systems of assess- 
 ment and collection resting ultimately upon the sovereign 
 power of taxation. Emory v. The City of San Francisco, 28 
 Cal. 349, and People v. Mayor of Brooklyn, 4 Com. 420, well 
 illustrate the only distinction between general taxation and 
 local assessments, and none affect the point under discus- 
 sion. In both it is necessary to ascertain the amount, ex- 
 tent, and character of the property which forms the basis 
 of the public charge, and on account of which it is to be 
 collected, in order to properly apportion to each owner his 
 proper share of the public burden. There is as great neces- 
 sity for him to have an opportunity to be heard before the 
 tax, in the case of general taxation, becomes final, as there 
 is in the case of an assessment for local purposes, as street 
 improvements. The levying and collection of taxes for 
 general purposes, under laws providing for general taxation, 
 are just as clearly a depriving of the owner of his property 
 as the levy and collection of a street or other assessment 
 for local purposes. It is impossible to distinguish them on 
 this point, and no distinction is made in the books. A de- 
 cision of the point, as to notice and opportunity to be heard 
 in a case of a street assessment, is just as clearly an author- 
 ity directly in point on the question at issue as though 
 made in a case of general taxation, and it would be equally 
 
62 THE SANTA CLAEA KAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J., concurring. [September, 
 
 controlling. The authorities arising upon the assessment 
 cited, therefore, are, in our judgment, authorities directly 
 and fully in point. 
 
 Again, so far as we are advised and such is the state- 
 ment in the books, which has not been controverted it 
 has been the usual practice in the legislation of all the 
 States, at some point in the proceedings, to levy and col- 
 lect a tax based upon property, where it is necessary to 
 ascertain its amount, character, and value, before the lia- 
 bility becomes finally and irrevocably fixed, to give to the 
 owner or tax-payer an opportunity to be heard. Such has 
 always been, and is now, the case under the Constitution 
 of California, except as to railroads operated in more than 
 one county; and where there has been a departure from 
 the rule, and the validity of such statutes litigated, on the 
 ground of want of due process of law, as we have seen, the 
 statutes have been overthrown. The fact of such general 
 practice in legislation is very persuasive evidence that, 
 in the estimation of the legislators and people of the 
 several States, an Opportunity to be heard in such cases is 
 an important element in "due process of law." This is of 
 itself authority entitled to serious consideration. As the 
 case stands, then, no decision of any Court, no dictum of 
 any respectable judge, other than so far as the cases cited 
 may be so regarded, no passage from any text-writer has 
 been brought to our notice which is in direct conflict with 
 the law and principles as stated in the citations made by 
 us on this point in the San Mateo Case. 
 
 In view of the numerous dicta conceding them to be, 
 properly, dicta of able judges in one class of cases cited; 
 of the able decisions, directly in point, in the other class 
 arising under local assessment laws; of the assumption of 
 the existence of the rule- by the United States Supreme 
 Court in Davidson v. New Orleans; of the adoption and 
 laying down of the rule by text-writers of the highest 
 eminence and judicially recognized authority; in view of 
 the general legislation of the States upon the subject, from 
 the beginning recognizing, and, practically, acting upon 
 the principle, and in view of the further fact, that no de- 
 
Dist. Cal.] THE SANTA CLARA EAILROAD TAX CASE. 63 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 cision of a judge, or statement of the rule by text-writers 
 to the contrary, has been brought to our notice, we think 
 that the Court was fully justified, in the Son Mateo Case, 
 in expressing the belief, that the authorities established 
 beyond all controversy, that somewhere in the proceeding 
 of assessing a tax upon property, where it is necessary to 
 ascertain its amount, character, and value, as a means of 
 apportionment under a law, or State Constitution at some 
 point before the amount of the assessment becomes finally 
 and irrevocably fixed the statute, or State Constitution, 
 must provide for notice to be given to the owner of the 
 property taxed, and an opportunity be afforded to make ob- 
 jections and be heard upon them. If this defendant, on its 
 large amount of property, can be lawfully taxed unheard, then 
 it is competent for the State to abolish all right to be heard, and 
 every person can be taxed unheard at the arbitrary will of the 
 taxing officers. 
 
 We have never contended that some species of taxes, as a 
 poll tax, license tax upon occupations, trades, etc., where 
 the tax is specific, and not ad valorem, and does not depend 
 upon the amount of the business done, and the like, may 
 not be levied without an opportunity to be heard. Taxes 
 of these and like kinds operate upon all alike, and a hearing 
 would be of no possible avail. The law itself fixes the 
 amount. It is a legislative act, wherein the objects of taxa- 
 tion are indicated, and amount fixed alike for all, leaving 
 nothing of a judicial nature to inquire into or determine. 
 But, where the tax is based upon the amount, character, 
 condition, and value of property, the amount of business, 
 income, etc., and it is necessary to inquire into, examine, 
 hear evidence, and decide upon these matters, in order to 
 assign to each individual his proper share of the public 
 burden, he is entitled to notice of some kind, and an oppor- 
 tunity to be heard, before the extent of his liability is finally 
 and irrevocably fixed. The notice may not be required to 
 be personal to each individual, or anything other than statu- 
 tory, but the statute should fix some time within, and place 
 at which, he may appear, and must give to the tax-payer a 
 right and some opportunity to appear and be heard upon 
 5 
 
64 THE SANTA CLAKA RAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J., concurring. [September, 
 
 the matter. He may not succeed in reducing his tax, but 
 the law affording an opportunity presumes that justice will 
 be done, upon proper hearing and proofs, by the officers 
 charged with the duty of doing justice in these matters. 
 To the suggestion that a party is as much entitled to be 
 heard upon the fixing of the rate of taxation, as to ascertain- 
 ing the kind, amount, and value of the property, it is suffi- 
 cient to observe that fixing the rate is a matter of legislative 
 discretion and a legislative act. An estimate of the amount 
 of revenue required and of the probable total amount of prop- 
 erty upon which it must be imposed, being made the rate 
 is fixed by the Legislature upon that basis, making the allow- 
 ance, suggested by experience, for inability to collect the 
 whole tax. When fixed, it operates equally upon all. It is 
 only when it is necessary to ascertain the kind, amount, 
 condition, and value of each man's property for the purpose 
 of apportioning his proper share of the burden, that it is 
 necessary to act judicially, and to give an opportunity to be 
 heard before the amount shall be finally and irrevocably 
 fixed. 
 
 Second. We are of the opinion, expressed in the San 
 Mateo Case, that the statement required by section 3664 of 
 the Political Code, as adopted in 1880, does not afford 
 notice and an opportunity to be heard sufficient to constitute 
 1 'due process of law," within the meaning of the constitu- 
 tional provision, for the reasons there stated. (8 Sawyer, 
 296.) In this case, the assessment was, largely, in excess 
 of the valuation furnished by the railroad officials, in pur- 
 suance of section 3664. As to the supposed Statutes of 
 1881, an error in the printed journal appears, which was not 
 called to our attention at the hearing of the San Mateo case. 
 Upon counting the names of those appearing among the 
 ayes in the printed journal (Jour. Ass., 24th session, page 
 472) there are found to be forty-one names, which consti- 
 tute just a majority, although they are footed up as thirty- 
 nine, and the announcement by the Speaker was, that there 
 were thirty-nine ayes, and thirty-two noes. The Speaker 
 declared " that this was not the final action on the bill, and 
 that the House had concurred in Senate amendments to 
 
Dist. Cal.] THE SANTA CLARA RAILROAD TAX CASE. 65 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 Assembly Bill No. 475, by a vote of thirty-nine ayes, to 
 thirty-two noes." (Id. 473.) Mr. Paulk appealed from the 
 decision of the Chair, "on the ground that forty-one votes 
 were required for concurrence." On motion of Mr. Hoitt, 
 this appeal ivas laid on the table. Mr. Hale filed a protest, 
 the ground being " that on vote taken on the motion to con- 
 cur iu the said Senate amendments, and the only action taken 
 by this Assembly on said bill, as amended in the Senate, 
 whereby it was passed by the Assembly, there was less than 
 a majority of the members of the Assembly voting therefor; 
 and, therefore, said bill, having upon said final vote re- 
 ceived less than a constitutional majority of the Assembly, 
 I protest, as aforesaid, that such bill should have been de- 
 clared lost." (Id. 475.) The Speaker then again "stated 
 that the action on Senate amendments to the bill was not 
 a final action on the bill, and, consequently, concurrence or 
 non-concurrence in the amendments required a majority 
 vote only." (Id. 475.) Mr. Griffith thereupon said: "The 
 decision of the Speaker and the House, to the effect that 
 less than a majority of the whole can concur in an amend- 
 ment which may take all the virtue out of a bill, I regard 
 as dangerous. * * * Wherefore I desire to enter my 
 solemn protest against such proceedings." (Id. 475.) And 
 Mr. Kellogg said: "I desire to have my protest entered 
 upon the journal of this Assembly against the decision of 
 the Speaker, in declaring that the Assembly had concurred 
 in the Senate amendments to the bill, * * * for the reason 
 that the journal shows that forty-one members did not vote 
 aye in concurring with said amendments." 
 
 This was the last action of the House on this bill. It will 
 be seen, then, that, while upon counting up the ayes in the 
 printed journal forty-one names are found, yet that they 
 were footed up and carried out as thirty-nine; the vote was 
 announced by the Speaker as thirty-nine, . and the whole 
 subsequent action of the House was upon the assumption 
 that there were but thirty-nine. Upon comparing the 
 printed journal with the original written journal, however, 
 on file in the office of the Secretary of State, it is conceded, 
 on all sides, that they do not agree in the names voting aye, 
 
C6 THE SANTA CLARA KAILROAD TAX CASE. [Cir, Ct. 
 
 Opinion of Sawyer, C. J., concurring. [September, 
 
 the original written journal containing only forty names, one 
 of the names in the printed journal not appearing in the 
 ivritten journal. "We are of opinion that the written journal 
 is the authentic official record, and that it corresponds with, 
 and is sustained by, all the other parts of the printed 
 journal, and with the announcement of the Speaker, and all 
 the action of the House, and that it must control. It, 
 therefore, affirmatively appears that the act never passed, 
 and never became a law of the State of California. 
 
 Besides, it was officially announced by the Speaker at 
 the time, and so recorded, that this was not the final passage 
 of the bill, and that it was on this ground that the amend- 
 ments were concurred in by a vote less than the number 
 required by the Constitution on the final passage of a bill. 
 There was no appeal from this decision, and it does not 
 appear to have been revoked. No other vote appears to 
 have been had, or other announcement by the Speaker 
 made in regard to this bill. No other action was had by 
 the House, except on March 4th, being the last act before 
 adjournment sine die, the bill was reported as correctly 
 enrolled, and as having been presented to the Governor for 
 approval. No action was taken on this report, and the bill 
 does not appear to have been reported to the House as 
 having been approved. At the time of the adjournment of 
 the Legislature, therefore, there was an appeal pending, 
 lying on the table, liable to be called up at any time from 
 the very decision of the Chair declaring the amendments to 
 be concurred in. Thus, there had been no final action on 
 this question, unless the report of the Committee on En- 
 rollment, without further action thereon, can be so re- 
 garded, and the whole matter was still in the control of the 
 House, and unfinished business, when the Legislature was 
 dissolved by adjournment' -and lapse of time. 
 
 At the time the assessment in question was made, then, 
 neither the Constitution nor any statute of California gave 
 the defendant any right, or afforded it any legal notice of 
 the proceeding, or opportunity to be heard as to the cor- 
 rectness or propriety of the assessment. The assessment 
 was an arbitrary exercise of power by the State Board of 
 
Dist. Cal.] THE SANTA CLARA BAILROAD TAX CASE. 67 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 Equalization, according to its own will and pleasure. It is 
 true that in some of the cases, though not in this case, an 
 agent of defendant did appear before the board, after the 
 assessment was made, and sought to get the assessment re- 
 duced; and the board, after hearing the application, refused 
 to reduce the assessment, but upon what grounds it does 
 not appear. The defendant offered to show, by the testi- 
 mony of members of the board, upon what ground the 
 refusal was made, but the evidence was ruled out on the 
 objection of the plaintiff that it was incompetent. As there 
 was no law authorizing such an application or hearing, or 
 authorizing a modification of the assessment by the board 
 upon such application, and the listening to the application 
 was a mere matter of grace, it is the legal presumption that 
 the board acted in conformity with the law and put its re- 
 fusal on that ground that it would be unlawful to reduce 
 the amount. But whether it did or not can make no differ- 
 ence. 
 
 If such a right and opportunity to be heard is an essen- 
 tial element of "due process of law," the law must provide 
 for it as a right. The party is not required to accept the 
 boon by the favor or good nature of the officers. And as 
 the proceeding would be wholly without the pale of the 
 law, it will not be presumed that the board would act with 
 that nice regard to judicial fairness, or that proper sense of 
 judicial responsibility, that would characterize their pro- 
 ceedings when acting wholly within the limits of their offi- 
 cial duties as imposed upon them by law. 
 
 Third. The next question is whether the provision of the 
 State Constitution, under which the assessment in question 
 was made, is in conflict with the clause of the Fourteenth 
 Amendment to the National Constitution, which provides 
 that no state "shall deny to any person within its jurisdic- 
 tion the equal protection of the laws." In order that my 
 views on this point may be presented in a connected, un- 
 broken order, I shall adopt the reasoning contained in the 
 discussion of the fifth point of my opinion in the San Mateo 
 Case, with such additional observations, incorporated at the 
 proper places, as occur to me, illustrative of the views en- 
 
68 THE SANTA CLARA KAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawj'er, C. J., concurring. [September, 
 
 tertained. In the forcible and accurate language of Mr. 
 Edmunds, which I cannot improve, the "Fourteenth 
 Amendment was a new Magna Charta that was in fact, in 
 form, and in effect a fundamental security to every person 
 in the state in respect of every private right that could be 
 invaded; and an absolute affirmation of equality of civil 
 rights to all persons before the law. The first clause for- 
 bids the state to touch life, liberty, or property without due 
 process of law; and the second forbids that even with due pro- 
 cess of law any person shall be denied the equal protection 
 of the laws. This is the plain letter of the amendment. 
 It is its intrinsic and beneficent spirit, and it was its pur- 
 pose." * * * * 
 
 "What, then, is equality of protection? A civil right 
 under a government is a distinct thing from a political right 
 in it; thus a state may deny to females the right to vote, 
 but it cannot deny to them the right to sue in courts or im- 
 pose on their property all the burdens of the community. 
 To hold otherwise would lead to the affirmation of the right 
 of the State to make race, or color, or religion, or age, or 
 stature the criterion of civil rights, and to exert the abso- 
 lute right of confiscation by classes or descriptions; for, in 
 such a case, every person of that class or description would 
 stand on an equality with his fellow-victims." 
 
 "It is not denied that a State may classify the persons 
 who are to perform certain public duties or bear certain 
 public burdens, based upon personal peculiarities of either 
 sex or calling, etc., as to require military service only from 
 males, or to exempt females from a poll tax, and impose 
 license tax upon certain trades, or tax all franchises of cor- 
 porations and their special privileges; but it could not im- 
 pose a poll tax on one-half its male or female citizens that 
 it did not impose on the fest in like degree. And when we 
 come to the case of property, as property, to be affected by 
 a tax, or any other imposition imposed upon it as a thing of 
 value, a distinction cannot be made to depend upon char- 
 acter, or occupation, or quality, or any individual charac- 
 teristic of the citizen. To hold otherwise would be to set 
 up the very essence of tyranny and arbitrary power." 
 
Dist. Cal.] THE SANTA CLARA KAILROAD TAX CASE. 69 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 " 'Equal protection ' is the same protection under the same 
 circumstances; all are to stand alike in like intrinsic condi- 
 tions. Holding property as property is certainly a like in- 
 trinsic condition. In the administration of justice, if the 
 criterion of a right to sue be value, all must have the same 
 right when the same value is concerned; or if the criterion 
 be the nature of the controversy, all must have the same 
 right whose cases are of the same nature. This appears to 
 be too clear for discussion." 
 
 "So, too, in the matter of taxation, if the tax, as in this 
 case, be laid upon the values of property, all persons must 
 stand on the same footing, according to the value of their 
 respective property, as to the proportionate burden they 
 are to bear in respect to the value." 
 
 "The farmer must be assessed at the same rate for the 
 value of his land as the lawyer for the value of his land, 
 and he must have the same right of notice and hearing, 
 etc., as his fellow-citizens of other callings; and if deduc- 
 tions are provided to be made from values on account of 
 debts (which is only a method of reaching effective value) 
 of one class of citizens, they must be made from those of 
 other classes, without reference to what particular charac- 
 teristics as citizens or persons they may have, as sex, or 
 race, or age, or quality, or calling." 
 
 "The basis of the imposition being property, as sitch, the 
 fact that certain property is owned by a corporation, or a 
 white man, or a man of bad character, or a clergyman, can- 
 not be made the ground of a levy, that, both in form, in 
 fact, and in result, is unequal and injurious. Any other 
 doctrine necessarily implies that the State may carry such 
 unequal exactions to the end of complete confiscation by 
 edict of all the property of any classs, or man, who, during 
 the passion of the hour, may not be in the sunshine of pop- 
 ularity." 
 
 It is insisted that the constitutional provision under which 
 the tax in question is levied does not deny to the defendant 
 the equal protection of the laws, and it is sought to main- 
 tain the validity of the provision on the ground that it is a 
 proper exercise of the principle of classification that the 
 
70 THE SANTA CLARA RAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J., concurring. [September, 
 
 property is classified according to its condition and use 
 and on that ground properly taxed upon a basis different 
 from tbat applied to other property. The provision to be 
 considered is as follows: 
 
 "A mortgage, deed of trust, contract, or other obligation 
 by which a debt is secured, shall, for the purposes of assess- 
 ment and taxation, be deemed and treated as an interest in 
 the property affected thereby. Except as to railroad and 
 other quasi public corporations, in case of debts so secured, 
 the value of the property affected by such mortgage, deed 
 of trust, contract or obligation, less the value of such 
 security, shall be assessed to the owner of the property, 
 and the value of such security shall be assessed and taxed 
 to the owner thereof, in the county, city, or district in which 
 the property affected thereby is situate. The taxes so levied 
 shall be a lien upon the property and security, and may be 
 paid by either party to such security; if paid by the owner 
 of such security, the tax so levied upon the property affected 
 thereby shall become a part of the debt so secured; if the 
 owner of the property shall pay the tax so levied on such 
 security, it shall constitute a payment thereon, and to the 
 extent of such payment a full discharge thereof: Provided, 
 that if any such security or indebtedness shall be paid by 
 any such debtor or debtors, after assessment and before the 
 tax levy, the amount of such levy may likewise be retained 
 by such debtor or debtors, and shall be computed accord- 
 ing to the tax levy for the preceding year." 
 
 Whatever the property, then, real or personal, mortgaged 
 to secure a debt, the value of the debt so secured, in the 
 case of everybody, except a "railroad and other quasi public 
 corporation)" is to be deducted from the value of the prop- 
 erty mortgaged, and the value only of the property mort- 
 gaged, "less the value of 'such security, shall be assessed 
 and taxed to the owner of the property, and the value 
 of such security shall be assessed and taxed to the owner 
 thereof." That is to say, that the property is to be divided 
 between the parties according to the value of their respect- 
 ive interests, and whatever the nature or extent of the 
 interest of each in the property may be, it shall be taxed to 
 
Dist. Cal.] THE SANTA CLARA BAILROAD TAX CASE. 71 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 the real owner. But in the case of "a railroad and other 
 quasi public corporation," there is to be no reduction of 
 the value of the mortgaged property no division accord- 
 ing to the interests of each and the whole is to be taxed 
 to one party, although he, in reality, does not own the 
 whole. Iii one case, if property is mortgaged to the extent 
 of half its value, the owner is taxed upon one-half the 
 value, and the owner of the debt secured, or the mortgagee, 
 is taxed upon the other half. But in the other case, the 
 owner of the legal title to the property is assessed and 
 taxed upon the whole value of the property, and the other 
 party, who is interested to the extent of one-half, upon 
 none. A, a natural person, or even a corporation other 
 than one of the excepted class, has $50,000 in cash all 
 the property he has and purchases of B, another natural 
 person, a piece of real estate for $100,000, that being its 
 actual value, paying one-half down, and giving a mort- 
 gage for $50,000 to secure the balance of the purchase- 
 money. The Constitution in effect says and in this in- 
 stance such is the real substantial state of facts that A 
 and B each has $50,000 in the property, one-half not hav- 
 ing been paid for by A, and each shall be assessed and 
 pay a tax upon his own interest in it, amounting to $50,- 
 000. A, in this instance, is worth only $50,000, and if 
 he pays taxes upon a larger amount, he pays taxes upon 
 property he does not really own upon property owned 
 by somebody else. This seems to be a self-evident propo- 
 sition. 
 
 C, "a railroad," or "other quasi public corporation," also 
 has $50,000 cash, and purchases of B, for its proper use, 
 an adjoining piece of real estate for $100,000, which is also 
 its actual value, paying $50,000, and giving a mortgage to 
 secure the balance of the purchase-money. In this case, 
 as in the other, the actual interest of each in the property 
 is $50,000. They stand precisely upon the same footing in 
 all particulars with reference to the property. C has only 
 $50,000 in the property it not having paid for the other 
 half and B, the rest. But in this case the Constitution 
 says that C shall, nevertheless, be assessed for and pay 
 
72 THE SANTA CLARA EAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J. , concurring. [September, 
 
 taxes upon the whole property, double the amount he really 
 owns, and B shall not be required to pay anything. That is 
 to say, that C shall not only pay the tax on its own prop- 
 erty, but the tax upon B's property; that money, to the 
 amount of the tax assessed upon $50,000, belonging to B, 
 shall be taken by the State or county from C, and appro- 
 priated to the use and for the benefit of B, to liquidate B's 
 share of the public burdens. This sum, being so much 
 more than C's share of the public burdens, and being in 
 fact B's share, the result of the operation is, not only to take so 
 much property from C, for public use, without compensation, 
 but also to arbitrarily take it from C and apply it to the use and 
 benefit of another private party, B, without compensation. The 
 result would be the same, whether the property of A, B, and C t 
 thus situated and mortgaged, is land, a railroad operated in one 
 or more counties, or any other kind of property. 
 
 Does a law which authorizes such proceedings such 
 discriminations bear or press equally upon A and C, or 
 equally upon B and C ? Is C equally protected in its rights 
 of property with A, or equally protected with B, or equally 
 with all other natural persons, or all corporations other than 
 railroad or other quasi public corporations ? Although 
 situated precisely alike with reference to their property, 
 do they feel the pressure of the public burdens equally and 
 alike? The question does not appear to me to admit of 
 argument. Upon the very statement of the proposition, it 
 seems to me to be self-evident that a law authorizing and 
 requiring such proceedings does not afford, but expressly 
 denies, the equal protection of the laws. The Constitution, 
 in the one case, says that " the mortgage, deed of trust, con- 
 tract, or obligation" shall be "deemed and treated as an 
 interest in the land affected thereby," which, in the cases 
 supposed, together with the debt secured, it undoubtedly, 
 in fact, is; but, in effect, the Constitution says it is not so 
 in the other case. Different kinds of property may require 
 to be taxed in different forms and modes, in order to be 
 equally taxed. And classifications of property for purposes 
 of taxation should have reference to the just equality of 
 burdens, so far as that is practically attainable. Classifica- 
 
Dist. Cal.] THE SANTA CLARA RAILROAD TAX CASE. 73 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 tion should have reference to the different character, situa- 
 tion, and circumstances of the property, making a different 
 form or mode of taxation proper, if not absolutely neces- 
 sary. It cannot be arbitrarily made, with mere reference 
 to the nationality, color, or character of the owners, whether 
 natural or artificial persons, without any reference to a dif- 
 ference in the character, situation, or circumstances of the 
 property. Should second mortgagees foreclose a mortgage 
 on a railroad or other property of a "railroad "or " other 
 quasi public corporation," and a natural person become the 
 purchaser of the road or other property subject to the prior 
 mortgage, at the next annual assessment the amount of 
 the first mortgage bonds or indebtedness secured would 
 be deducted from the value of the road or other prop- 
 erty, and the amount of the bonds or other indebtedness 
 assessed to the mortgagees. Such, also, would be the re- 
 sult in the case before supposed if C a railroad or other 
 quasi public corporation should convey its land to a nat- 
 ural person, subject to the mortgage to B; and although 
 there would be no change in the condition, circumstances, 
 use, or value of the property the change being only in the 
 owner C's grantee would only be required to pay one-half 
 the amount of taxes which C had been compelled to pay, 
 and B, who before paid nothing, would be required to pay 
 the other half. Should the Southern Pacific Railroad and 
 its lands pass into the hands of a natural person upon a 
 foreclosure and sale, under a second mortgage, subject to 
 the mortgage now on them, the value of this very security 
 would be deducted from the value of the property at the 
 next annual assessment. Thus, although the property would 
 in all respects be the same, and similarly situated, and ap- 
 plied to the same uses for natural persons as well as cor- 
 porations may own and operate railroads a mere change 
 in the ownership would require and effect an entire change 
 in the mode and basis of the assessment, and the amount of 
 taxes levied on the owner. Nothing, it seems to me, could 
 more clearly demonstrate the unsoundness of the proposi- 
 tion, that only an admissible classification of property for 
 the purposes of taxation is involved in the different schemes 
 
74 THE SANTA CLARA RAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J., concurring. [September, 
 
 provided for taxing the property of "railroad and other 
 quasi public corporations," and the property of natural per- 
 sons and of other corporations. Railroad and other quasi 
 public corporations are not even put upon the same footing 
 with other corporations, the latter being placed upon an 
 equality with natural persons. A mere change of owner- 
 ship under the provisions in question largely affects the 
 amount of taxes paid by the owner upon the same property, 
 without any change in the character, condition, value, use, 
 or circumstances of the property itself. A provision that 
 a black man shall pay double the amount of taxes paid by 
 a white man on the same kind of property similarly situated 
 and used, or upon the identical property, in consequence of 
 a mere change of ownership from a white man to a black 
 man, might with as good reason be sustained on the princi- 
 ple of classification invoked. The classification in this case 
 is clearly by ownership, and not by condition or use. 
 
 That natural persons may own and operate a railroad in 
 this State as well as corporations is manifest from the fact 
 that this road is mortgaged under the authority of the laws 
 of the State, and this of itself necessarily involves the power 
 to sell and convey, in case the occasion arises, under a de- 
 cree of foreclosure, to any party who is willing to pay the 
 highest price for the road. It also appears as a fact in this 
 case that a natural person purchased a railroad operated in 
 more than one county, extending from Marysville, in the 
 county of Yuba, to Oroville, in the county of Butte, under 
 a decree foreclosing a mortgage, received his conveyance 
 therefor, and that he has been operating it and been as- 
 sessed, and has paid taxes upon it for more than two years 
 past. So, also, numerous statutes of the States were intro- 
 duced in evidence, granting the right to natural persons, 
 not incorporated, to build and operate railroads. "An acfc 
 to provide for the construction of a railroad from Mokel- 
 umne City to Woodbridge, in the county of San Joaquin" 
 (Statutes 1862, page 97), and an act authorizing the build- 
 ing of a railroad from the Embarcadero, on the bay of Pet- 
 alurna, in Sonoma County (Id. 295), are examples of nu- 
 merous acts of a similar character found scattered through 
 
Dist. Cal.] THE SANTA CLARA EAILROAD TAX CASE. 75 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 the volumes of the statutes from that time to the present. 
 Thus private parties owning and operating railroads covered 
 bj mortgages, and situated in all respects precisely as rail- 
 road corporations are situated with respect to the same kind 
 of property, would only be required to pay taxes upon the 
 excess of the value of the road or other property over the 
 value of the security, while the holder of the security would 
 be assessed for and pay the taxes on the value of the 
 security. The personal liability of each would only extend 
 to the tax on his own interest, and, in many instances, the 
 value of the security would equal the whole value of the 
 property, thereby relieving the niortgagor of all taxes on 
 the property. This is not classification, therefore, by its 
 condition or use, for the purposes of taxation at all, but by 
 ownership. 
 
 There is no difference in the rate imposed; it is taxed 
 according to its value, like all other property; no more, and 
 no less tax, in the aggregate, is levied. It is, therefore, 
 taxed upon the same principle as other property; no more 
 and no less revenue is raised by the classification. The 
 State is not benefited. The burden is simply taken from 
 the owner and thrown upon one who does not own the 
 property taxed. It is not taxed to and made a personal 
 charge upon the owner as other property is under like cir- 
 cumstances. This is the only difference, and that does not 
 affect the principle of the taxation. Unless it is competent 
 to class the property of Jones, whether land, or railroad, or 
 other property, when mortgaged, as belonging to Smith, 
 and compel Smith to pay the taxes as a personal charge or 
 liability imposed upon him on the property of Jones, who 
 is not to be taxed or charged upon the property at all, when 
 the same thing is not done as to other property of like kind 
 and similarly situated, then this provision of the State Con- 
 stitution cannot be maintained on the principle of classifi- 
 cation or any other. The interests of the mortgagor and 
 mortgagee are not the same not identical. The estate of 
 one begins where the estate of the other ends. They both 
 together, under that clause which makes the mortgage in 
 all cases as it does in terms an interest in the laud, for 
 
76 THE SANTA CLARA BAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J., concurring. [September, 
 
 the purpose of taxation, make up the whole, so far as classi- 
 fication for the purpose of taxation is concerned. 
 
 Suppose the position of the parties, the mortgagor and 
 mortgagee in this case, in regard to the imposition and pay- 
 ment of the tax had been reversed, and the Constitution 
 had imposed the tax upon the whole as a personal charge 
 upon, and compelled payment by, the mortgagee the 
 holder of the security instead of upon the mortgagor, the 
 mortgagor not being taxed at all, would such a provision 
 have been valid upon the principle of classification, or any 
 other? Would the mortgagee stand upon the same footing 
 with other mortgagees? I apprehend that such a provision 
 would not stand for a moment, in the presence of the pro- 
 vision of the National Constitution assuring to all the equal 
 protection of the laws. Such a provision would not operate, 
 equally, upon the two parties interested in the property, 
 nor upon the mortgagee thus taxed, and other parties in 
 like circumstances, where the mortgagors, are natural per- 
 sons, or other corporations, who are only compelled to pay 
 taxes upon the interests in property which they actually 
 own. If the holder of the security could not be taxed for 
 the interest held by the owner of the railroad, land, or 
 other property mortgaged, no sound reason is apparent for 
 holding that the mortgagor can be taxed for the whole, and 
 especially where, as in this particular instance, the value of 
 the security is greater than the value of the estate of the 
 other party. There cannot be one law for one person, and 
 a different and more onerous law for another, similarly situ- 
 ated, and both enjoy the equal protection of the laws in the 
 particulars wherein such laws differ. 
 
 Conceding the Fourteenth Amendment to apply to tax- 
 ation, as it undoubtedly do.es, I think I hazard little in 
 saying that no possible reasoning can justify such classifi- 
 cation or discrimination under it. That classification, upon 
 such principles, is arbitrary, tyrannical, and unjustifiable. 
 
 There can be no valid classification of property, under 
 the State Constitution, for the purposes of taxation, based 
 upon the uses to which it is applied, except so far as the 
 use may give additional value to the property; and the 
 
Dist. Cul.] THE SANTA CLARA EAILROAD TAX CASE. 77 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 principle under the constitutional provision requiring all prop- 
 erty to be taxed at its value, would only authorize the in- 
 crease, or modification of the assessment, by adding the 
 increased value, so arising from the use. One owner may 
 pasture his land; another raise wheat, cotton, or sugar- 
 cane; another plant a vineyard for the production of wine, 
 or an orange grove; another erect buildings upon his land, 
 and enjoy the rents arising therefrom; and another devote 
 his to the construction and operation of a railroad. If any 
 of these uses give additional value to the land or other 
 property, it must still be taxed at its actual value, be it 
 greater or less. But under the constitutional provision 
 requiring all property to be taxed at its actual value, it cannot 
 be classified by its uses, for the purpose of applying other 
 principles of taxation than value as a basis; or for the purpose 
 of taxing it according to oivnership, so as to make one class of 
 owners, as such, pay more than another; or one class of owners 
 pay the taxes that ought to be assessed against and paid by an- 
 other class. The State Constitution does not profess to 
 classify upon the basis of the uses to which property is 
 applied. It recognizes no such principle in terms or by 
 implication. It says nothing about uses; but classifies, in 
 terms, by ownership, and includes all of the property of 
 the same owners in its class for non-deduction of the value 
 of the security land and other property held for sale as 
 well as property used for operating railroads, or other cor- 
 porate uses of quasi public corporations, without making 
 any reference whatever to its uses. The only rule by which 
 airy property is authorized to be assessed, is according to 
 its value. The Constitution arbitrarily provides, as to a 
 particular class, that they shall pay the taxes upon the in- 
 terest according to the constitutional definition of prop- 
 erty in the property held by another class of owners who 
 are allowed to escape taxation altogether, and in this par- 
 ticular the laws do not bear upon or protect the former 
 equally with the latter. It provides that railroads and 
 other quasi public corporations shall pay taxes upon prop- 
 erty they do not own shall pay other people's taxes. This 
 discrimination against such corporations is not a taxation 
 
78 THE SANTA CLARA EAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J., concurring. [September, 
 
 but a confiscation of their property, not for the benefit of the 
 public, for there are no more taxes collected in the aggregate, but 
 for the benefit of other property owners, who thereby escape 
 their share of the public burdens. If the arbitrary discrimi- 
 nation and classification found in this case can be legally 
 made under the National Constitution and the law of the 
 land, then the subordinate State Constitution or law can be 
 so framed as to dispose of a man's rights in property of all 
 kinds by arbitrary classification and definition, without re- 
 gard to the real facts, circumstances, or condition of the 
 property. A person may, by such subordinate statutory 
 provisions, be classified and defined out of the equal pro- 
 tection of the laws guaranteed by the National Constitution; 
 and if so with reference to this provision, he can also be 
 classified and defined out of uniformity in the operation of 
 the laws in other particulars; out of the protection of due 
 process of law and of the provision forbidding a law im- 
 pairing the obligation of contracts or taking property for 
 public use without just compensation; and, indeed, out of 
 all the guaranties of the Constitution, State or national. I 
 am not arguing that property of all kinds may not be taxed 
 where it is found, provided all owners are put upon the 
 same footing; but in this case there is a personal liability 
 sought to be enforced against the defendant for taxes not 
 imposed upon others in like circumstances, without any 
 means provided for reimbursement, such as are applicable 
 to others similarly situated, by the party who ought to pay 
 the tax. 
 
 For authorities, including decisions of the United States 
 Supreme Court, illustrating this point, reference is made to 
 the San Mateo Case, 8 Saw. 302-4. 
 
 It is argued that the taxjng of the whole value of mort- 
 gaged property of railroads and other quasi public corpo- 
 rations to the corporation owning it, subject to the mort- 
 gage, while the same thing is not done with respect to the 
 property of natural persons or other corporations similarly 
 situated, is valid as being simply a franchise tax a tax 
 for the privilege of being a corporation, "a tax imposed as 
 a return for privileges and powers riot possessed by in- 
 
Dist. Cal.] THE SANTA CLARA KAILROAD TAX CASE. 79 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 dividuals." It is further said that it is not material by 
 what standard a franchise tax is measured whether the 
 tax is in gross or measured by receipts, the amount of 
 property acquired, or by any other standard; and cases 
 are cited from some of the States where a franchise tax is 
 claimed to have been sustained on such principles. But 
 this view wholly ignores the provisions of the State Con- 
 stitution itself on the subject. This is not, and does not 
 purport to be, in any sense, a franchise tax. A franchise. 
 tax is otherwise in express terms provided for. The Con- 
 stitution itself prescribes how a franchise tax shall be as- 
 sessed; and that is, like all other property, " in proportion 
 to its value." "All property * * * shall be taxed in 
 proportion to its value, to be ascertained as provided by law." 
 (Art. XIII., sec. 1.) "The word property, as used in this 
 article and section, is hereby declared to include money, 
 credits, * * * franchises, and all other matters and 
 things * * * capable of private ownership." (Ib.) 
 
 Again, " the franchise, roadway, etc., of all railroads 
 operated in more than one county in this State shall be 
 assessed by the State Board of Equalization at their actual 
 value." (Ib., sec. 10.) Thus the franchises of the defend- 
 ants, under the Constitution of. California, can only be as- 
 sessed like other propeaty, according to " their actual 
 value," be that more or less. In these cases, the franchises 
 of the defendants, are, in fact, covered, both by the assess- 
 ment of the taxes in question, and by the mortgages exist- 
 ing upon the property of the several defendants, at the date 
 of the several assessments. Their franchises have, there- 
 fore, already been otherwise assessed at their value all 
 the Constitution will allow and this discrimination is not, 
 and cannot be, under the Constitution of California, a 
 franchise tax. It has no reference to the franchise. It is 
 simply in law, what it is in fact, an arbitrary and unjustifi- 
 able discrimination against railroad and other quasi public 
 corporations, that cannot be maintained under the Four- 
 teenth Amendment to the National Constitution, guarantee- 
 ing to every person the equal protection of the laws. 
 
 Great stress was laid in the arguments of plaintiffs' coun- 
 
80 THE SANTA CLARA EAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J., concurring. [September, 
 
 sel upon the growing and overweening power and greed of 
 corporations; and it was vehemently asserted that this is a 
 struggle between the people and the corporations for su- 
 premacy; that corporations, by corrupt means, and through 
 their large and wide-spread influence, have obtained, and 
 they are obtaining, control of Legislatures, etc., etc. 
 
 If this be so, then it is of the utmost importance to every 
 natural person in the United States that these guaranties of 
 the Fourteenth Amendment to the National Constitution 
 should be maintained in all their length and breadth. They 
 are the only means of protection left to the people. If 
 these unequal taxes can be imposed upon the class of cor- 
 porations named in the Constitution, the position of the 
 parties can be reversed, and the unequal tax now thrown 
 upon the corporations may hereafter be imposed upon the 
 other parties. If these can be taxed without a hearing, 
 then all or any class of persons can be taxed without a hear- 
 ing; and if there is good ground for the alarm manifested 
 by the counsel of the plaintiff, such corporations, when 
 they acquire the deprecated power and control indicated, 
 will not be likely to be slow in shifting the unequal burden to 
 the other side. There is, therefore, upon that hypothesis, no 
 safety to the people, except .in most rigidly maintaining the 
 guaranties of the Fourteenth Amendment in their broadest 
 scope. 
 
 Fourth. Upon the point as to whether the provision of 
 the State Constitution under which the tax in question was 
 levied, is valid by virtue of the power of the State over 
 corporations, under the authority reserved to the State 
 under the Constitution to amend, alter, or repeal the laws 
 under which they were organized, or otherwise, I refer to 
 the quite full discussion of the point under the sixth head 
 in my opinion in the San'Mateo Case, 8 Saw. 304. I shall, 
 however, make some additional observations. 
 
 In order to sustain the validity of the tax on that ground, 
 the constitutional provision must operate as an amendment 
 to the general statute of California, by which it imposes 
 upon railroad and other quasi public corporations, under 
 the amended statute, as a condition of their continued ex- 
 
Dist. Cal.] THE SANTA CLARA KAILROAD TAX CASE. 81 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 istence, a liability to be taxed otherwise than as natural 
 persons and other corporations are taxed. It is not pre- 
 tended by anybody that any express intention to amend the 
 act relating to corporations is found in the new Constitu- 
 tion, or that any reference is anywhere made to the act. 
 The operation of the amendment of the statute is sought to 
 be worked out by implications, and the necessities of the 
 case, which require the tax to be sustained on that ground, 
 as there is no other on which it can rest. But repeals 
 or amendments of statutes by implication never were 
 favored; and, under our Constitution, limiting the power 
 of the legislature to the passage of acts embracing but a 
 single subject, which must be expressed in the title of the 
 act, and forbidding an amendment otherwise than by re- 
 enacting the whole section as amended, would seem to 
 render the rule still more restrictive in its operation. 
 No reference to this matter of taxation is made in any part 
 of the chapter devoted to corporations. The provision is 
 found in the chapter providing for taxation, and which deals 
 with taxation, and only taxation, as taxation. It is manifest, 
 that the idea of amending the act relating to corporations 
 was never contemplated by the convention in framing, or 
 the people in adopting, the Constitution. We are satisfied 
 that the charge must be sustained, if sustained at all, only 
 as a tax, without reference to the power of the State to im- 
 pose further conditions upon corporations not imposed at 
 their creation by amendment to the general laws under 
 which they became incorporated. 
 
 But if the State, under its power to amend the laws under 
 which corporations are formed, is entitled to impose this 
 charge, not imposed upon natural persons, and other cor- 
 porations, under like circumstances, as a condition of its 
 continued future existence, the corporation is not bound 
 to accept the condition, and go on. No charter can be 
 forced upon an association of natural persons, and no new 
 or more onerous conditions can be forced upon a corpora- 
 tion already formed. It may elect to dissolve and retire 
 from the field of enterprise occupied, rather than accept 
 the new conditions; and such conditions might be imposed 
 
82 THE SANTA CLARA KAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J., concurring. [September, 
 
 as would compel that course. But until accepted tliey form 
 no part of the charter, and impose no new valid obligations. 
 An acceptance of the new conditions cannot be presumed 
 while the corporation is protesting that none have been 
 imposed; or, if attempted to be imposed, is insisting that 
 they are invalid, void, and of no effect and in every way, 
 and by all means in its power, is resisting the attempt 
 of the State to give effect to this assumed change in its 
 rights and obligations while it is still denying the power 
 of the State to make the change and refusing to acquiesce 
 in it. Till the corporation elects to accept the new condi- 
 tions imposed, or gives some evidence of such election, 
 rather than dissolve, there is no implied promise or obliga- 
 tion to assume the additional burdens laid upon it, or, as 
 in this instance, to pay the additional tax thus imposed in 
 invitum, upon which an action can be maintained. This 
 corporation, like every other person, against whom a right 
 is claimed, certainly is entitled to litigate the question, 
 whether any new valid obligations or conditions have been 
 imposed upon it, before it can be called upon to determine 
 whether it will dissolve and retire, or accept the conditions 
 and proceed. A refusal to accept, surely, can give no right of 
 action, ivhich depends upon acceptance. If there is any rem- 
 edy in behalf of the State against a corporation declining 
 to accept, but still continuing to exercise its functions in 
 violation of the existing law, it is by some proceeding in 
 the Courts, in the nature of an information, to dissolve the 
 corporation and wind up its affairs; and this, it appears to 
 me, is the remedy in this case, if there is an amendment to 
 the act under which the defendant is incorporated, impos- 
 ing the liability of this unequal and unjust tax upon it, as 
 a condition of its continued existence, and the corporation 
 refuses to accept it, or to submit to it. 
 
 The doctrine asserted, and sought to be maintained, that 
 because a corporation owes its origin and existence to the 
 State is a creature of the State it and all its belongings 
 are under the arbitrary power and control, and at the abso- 
 lute mercy of the State, is monstrous. The State, through 
 general laws applicable to all similar corporations, may 
 
Disfc. Cal.] THE SANTA CLARA RAILROAD TAX CASE. 83 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 abolish corporations, may take away their faculties, may 
 enlarge or restrict their powers and functions for the future; 
 but it can not lay its hand upon their lawful acquisitions or 
 property, otherwise than as upon the acquisitions and prop- 
 erty of natural persons. Although the title and manage- 
 ment of these are vested in the ideal being called a corpo- 
 ration, the ultimate property is in the corporators, and 
 their rights in the property and acquisitions are as sacred 
 in their corporate as in any other of their relations to 
 society, or to the State. 
 
 Had the State Constitution provided that the property of 
 corporations might be taken for public use without any 
 compensation, and without a trial or hearing of any kind, 
 such as for the sites of public buildings, public streets or 
 squares, or for the use of railways, and the corporations 
 had denied and resisted the validity of such provision, I 
 apprehend that no Court would hold, that because it did 
 not immediately dissolve and retire from business, upon 
 the adoption of such a provision, that it had been accepted, 
 and thenceforth become one of the conditions of the future 
 continued existence of the corporation, and in consequence 
 of the fact, that its property might thenceforth be arbitrarily 
 taken and appropriated to public use without any hearing 
 or compensation. Yet such a provision would be no more 
 monstrous than the doctrine sought to be maintained. In- 
 deed, it is the necessary logical sequence of the doctrine. 
 
 From these considerations, and those expressed upon 
 this point in the San Mateo Case, and from the expressed 
 terms of the Constitution itself, it is clear to me that the 
 provision in question attempts to provide only for exer- 
 cising the sovereign power of taxation has no other end 
 to accomplish and accomplishes no other purpose; and 
 that the rights of the parties must be determined on that 
 hypothesis alone that is to say, the hypothesis that it is a 
 tax merely, without any reference to a change of the funda- 
 mental conditions upon which the corporation is to continue 
 in existence. If not, then that the new conditions have 
 not been accepted, and there is no ground upon which this 
 action can be maintained. The suit is simply one at law 
 
84 THE SANTA CLARA KAILEOAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J., concurring. [September, 
 
 for a tax and nothing else, and the plaintiff must recover 
 on that theory, and on the case made, or not at all. If this 
 tax can be imposed upon the defendant, simply because it 
 is a corporation, when it could not be imposed upon natural 
 persons holding, owning, and using its property under like 
 conditions in all other respects, then it would be difficult 
 to point out what rights are left to corporations, or natural 
 persons in their corporate relations, which the State, under 
 the Fourteenth Amendment, or otherwise, is bound to respect. 
 
 fiftJi. At the time of the assessment and levy of the tax 
 in question there was a deed of trust in existence, and 
 operative, to secure a large indebtedness, executed by de- 
 fendant to D. O. Mills and Lloyd Tevis, before the adoption 
 of the present Constitution of the State of California, which 
 covered the Southern Pacific Eailroad, its tracks, depots, 
 rolling-stock, and all appurtenances the road aggregating 
 1,150 miles in length, of which over 700 are completed and 
 in operation. It also covered all the lands granted by the 
 United States to aid in the construction of said railroad, 
 aggregating, as estimated, 10,000,000 acres, after excluding 
 reserved lands embraced in the statutory description. This 
 deed of trust, or mortgage, was duly recorded in the several 
 counties of the State through which the road extended, and 
 in which the lands were situated. 
 
 A portion of the road, and of the lands mortgaged, was 
 situated in the county of Santa Clara. The mortgage was 
 for 846,000 per mile, of which amount bonds have been 
 issued to the amount of $39,000 per mile. The lands 
 mortgaged, so far as they have been patented, including 
 the lands in Santa Clara County, had been taxed to de- 
 fendant in the several counties in which they were situ- 
 ated, at their full value, and without any reduction on 
 account of the mortgage, arrd the taxes duly paid. So, also, 
 no reduction in the amount of the assessed value of the 
 road, rolling-stock, etc., was made in consequence. Thus 
 all the property embraced in the mortgage was taxed to the 
 defendant at its full value, without any reduction in the 
 amount on account of the mortgage. The trust deed con- 
 tained the following covenant: "And the said party of the 
 
Dist. Cal.] THE SANTA CLARA RAILROAD TAX CASE. 85 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 first part hereby agrees and covenants to and with the said 
 parties of the second part, and their successors in trust, 
 that it will pay all ordinary and extraordinary taxes, assess- 
 ments, and other public burdens and charges which maybe 
 imposed upon the property herein described and hereby 
 mortgaged, and every part thereof; and the said parties of 
 the second part, the survivor of them or their successors in 
 said trust, or any one or more of the holders of said bonds, 
 may, in case of default of the said party of the first part in 
 this behalf, pay and discharge the same, and any other lien 
 or incumbrance upon said property which may in any way, 
 either in law or equity, be or become in effect a charge or 
 lien thereon, prior to these presents, or to which this mort- 
 gage may be subject or subordinate, and for all payments 
 thus made the parties so making the same shall be allowed 
 interest thereon at the rate of seven per centum per annum; 
 and such payments, with the interest thereon, shall be, and aro 
 hereby, secured to them by these presents, and declared to 
 be payable and collectible in the same sort of currency or 
 money wherein they shall have been paid, and the same 
 shall be payable by said party of the first part to said par- 
 ties of the second part upon demand, in trust for the party 
 or parties paying the same, and may be paid out of the pro- 
 ceeds of the sale of said property and franchises hereinbe- 
 fore provided." 
 
 It is gravely and earnestly insisted here that under this 
 covenant the defendant has bound itself to the trustees to 
 pay the whole taxes assessed upon the property covered by 
 the mortgage; that if the tax should be assessed upon de- 
 fendant and there should be a recovery in this case and 
 payment of the judgment, the defendant would pay no more 
 than it is bound to pay under the covenant in the trust deed, 
 and could not be injured; therefore the tax is valid and a 
 recovery should be had in this action, even though the tax, 
 as levied against the defendant, is unauthorized by any 
 valid law, or was levied without the authority of any law. 
 It would seem to be only necessary to state the proposition 
 to make manifest its fallacy. The proposition in substance 
 is, that if a valid tax had been levied, the defendant had 
 
86 THE SANTA CLAEA RAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J., concurring. [September, 
 
 bound itself by a contract to protect a third party, with 
 whom the plaintiff is not in privity against it, by payment, 
 or allowing such third party to pay it and make it a secured 
 charge against defendant. And, since this is so, although 
 it is not authorized by any valid law, it would not injure the 
 defendant to levy the tax against it and compel it to pay the 
 whole amount of tax that ought to have been properly levied 
 on somebody on account of the property; therefore the 
 plaintiff ought to recover, altough there is no valid tax 
 levied against him or anybody else no tax for which any- 
 body is now legally liable. Somebody ought to have been 
 made personally liable to pay this tax by a proper and legal 
 assessment of it; and if anybody had been made liable de- 
 fendant would have been bound to pay it under its cove- 
 nant, but there was no valid assessment, either against the 
 defendant or anybody else, yet the defendant is personally 
 liable and plaintiff ought to recover. Such is the reason- 
 ing presented to us. 
 
 This tax, as levied, is either valid, as properly levied 
 under the law, or it is void and its validity must depend 
 upon the law. It cannot depend upon the fact that private 
 parties by an anterior contract, with which the State and 
 county are not in privity, had a stipulation as to which 
 should pay any tax properly levied. If valid as against 
 defendant so as to make it personally responsible, then the 
 plaintiff is entitled to recover, whether it would be injured 
 or not, and there is no need to invoke the principle that 
 defendant cannot be injured by doing what it is insisted it 
 in good morals ought to do. If the tax as levied is not 
 valid and a legal personal charge upon the defendant under 
 the law, without regard to any contract between private 
 parties as to who shall pay a valid tax upon the laud when 
 levied, then there is no valid tax or personal charge against 
 anybody, for no tax purports to have been levied against 
 the trustees in the trust deed, or against the holders of the 
 security. There is no tax upon which the covenant can 
 operate. This action is not based upon moral equities, or 
 even upon equities recognized and enforced by courts of 
 equity. It is a dry action, at law, to recover what is 
 
JDist. Cal.] THE SANTA CLARA KAILROAD TAX CASE. 87 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 alleged to be a sum of money legally clue, and for which the 
 defendant is legally, personally liable by reason of a valid levy 
 of a tax against it. That is the cause of action alleged, and 
 upon that a recovery must be had, if at all, and according 
 to the allegata of the complaint. This is not a suit in 
 equity to enforce a lien for a tax. It is not an application for 
 an injunction against the collection of the tax, in which, 
 possibly, the court might consider whether there were any 
 equities which should call upon it to deny the injunction, 
 or relief, affirmatively sought. It is not a case for the ex- 
 ercise of discretion. It is an action resting upon a strictly 
 legal personal liability. It is not enough that a valid tax 
 to some extent might have been levied. There must be 
 such a tax as throws a legal liability upon the defendant to 
 pay to the plaintiff the sum claimed, or there can be no re- 
 covery. Bat had there been a valid tax levied against the 
 covenantee, or mortgagee, on account of the property, this 
 would not have authorized a recovery against defendant by 
 reuson of the covenant alone. The covenant cannot affect 
 the case. The covenant was between the defendant and 
 the trustees, for the benefit of the latter, or rather the 
 bond-holders secured, and not for the benefit of the plaint- 
 iff. The plaintiff is not in privity with them. But suppose 
 the covenant had been between defendant upon a due 
 consideration, and the trustees, expressly made for the 
 benefit of the plaintiff, in such form, if such could be, as 
 to give plaintiff a right of action on the covenant. It would 
 be necessary to set out the contract on which the right of 
 action rested, and make it the basis or ground of action. 
 Nothing of the kind has been done. The theory of this 
 action is, that a valid tax has been legally assessed against 
 defendant, for which it is personally liable under the Con- 
 stitution, and a recovery is sought on that ground in the com- 
 plaint, and upon no other; and it can be had upon no other. 
 There were two kinds of covenants in use in mortgages 
 and trust-deeds at the time the trust-deed in question was 
 executed; one a covenant that the mortgagor would pay all 
 taxes that might be assessed on the mortgaged property, 
 and in default of payment, that the mortgagee might pay it 
 
88 THE SANTA CLARA RAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J., concurring. [September, 
 
 himself for the protection of liis security, and upon such 
 payment that the taxes so paid should be added to the debt, 
 and draw like interest. This was simply to protect his 
 security against other parties who might subsequently ac- 
 quire liens, and to convert his advances into principal and 
 fix the rate of interest. The purpose of this covenant was 
 not to render the mortgagor liable to pay a tax which he was 
 not already liable to pay; but it was to enable the mortgagee 
 to pay it for his own protection, in case the mortgagor did 
 not, and take away the voluntary character of the payment, 
 so that he could convert it into a secured debt, drawing in- 
 terest as a part of the principal. The other was that the 
 mortgagor would pay not only all taxes levied on the mort- 
 gaged property, but also all taxes that should be levied upon 
 the moneys loaned and secured. This was an indirect way 
 of increasing the interest paid on the loan, and imposed an 
 additional burden upon the mortgagor. This last covenant 
 is now forbidden and rendered void under the new Constitu- 
 tion. 
 
 The covenant in the mortgage in this case is clearly of 
 the first kind. It only required the mortgagor to pay the 
 taxes or liens which it was at that time bound to pay luithont 
 the covenant, and in no way extended its liability. A law, or 
 constitutional provision, which should compel him to pay 
 the taxes assessed upon the property of the mortgagee, would 
 enlarge his liability beyond that covered by his covenant, 
 and be void. This covenant only extended to taxes for 
 which the defendant was already liable. Besides, if no 
 valid tax has been levied, then the case ia not within the 
 covenant, for the defendant cannot be called upon under the 
 covenant to pay a tax absolutely void. 
 
 Again, suppose the covenant had been in a mortgage or 
 trust-deed between two natural persons, made at the same 
 time, the sum secured being the whole value of the property. 
 Under the constitutional provision in question, the value of 
 the security, which, in the case supposed, is the whole value 
 of the property, must be assessed to the holder of the security, 
 and made a personal charge on him alone. It could not be 
 assessed to the mortgagor, and made a personal charge or 
 
Dist. Cal.] THE SANTA CLARA KAILRO AD TAX CASE. 89 
 
 1883.] Opinion of Sawyer, C. J., concurring. 
 
 liability on him, and enforced by a suit for a personal judg- 
 ment; because there is no statute, or constitutional provi- 
 sion, purporting to authorize such a proceeding. Yet he has 
 covenanted with the holder of the security in the same 
 sense as in the trust-deed in question, to pay the whole tax 
 levied on the land, and he would not be injured according 
 to the theory of the plaintiff, if the whole tax should be 
 assessed and recovered against him. If such assessment 
 should be made against the mortgagor instead of the mort- 
 gagee without any law for it, or even purporting to authorize 
 it, and a suit be brought to recover a personal judgment for 
 the amount, I apprehend that no counsel would be found 
 bold enough to urge that the utter invalidity of the tax is 
 no defense against the suit, for the reason, that if a proper 
 tax had been levied against the proper party, he would be 
 bound by his covenant with that party for the protection of 
 that party's interest, alone to pay the tax, and, therefore, he 
 is not injured. If such an action under such circumstances 
 could not be maintained against the mortgagor, then it can- 
 not be maintained against the mortgagor in this case, other- 
 wise there is one law for this defendant and another law for 
 natural persons, occupying in all respects, with reference to 
 their property, precisely the same situation; and there is a 
 manifest denial of the equal protection of the laws in this 
 particular, as well as in the others. They are not equal be- 
 fore the laws. If the constitutional provision in question 
 is void, then there is no law under which this tax could be 
 levied against defendant, and it is utterly void and cannot 
 form the basis for a recovery. In my judgment the provi- 
 sions of the State Constitution, upon which the validity of 
 this tax and the right to recover alone rest, violate the pro- 
 visions of the Fourteenth Amendment in question, in four 
 vital particulars. 
 
 1. They assess railroad and other quasi public corpora- 
 tions upon a different basis from that adopted with respect 
 to natural persons, and other corporations similarly situated 
 with respect to their property in the particulars in these opin- 
 ions, and in the opinions in the San Mateo Case pointed out. 
 
 2. They provide, with respect to all 
 
90 THE SANTA CLARA KAILROAD TAX CASE. [Cir. Ct. 
 
 Opinion of Sawyer, C. J., concurring. [Sept. 1883. 
 
 railroads operated in more than one county, an oppor- 
 tunity to be heard in the course of the proceeding, to assess 
 their property before the assessment becomes irrevocably 
 fixed, while they afford no such notice or opportunity to be 
 heard with reference to railroads operated in more than 
 one county, and, in both these particulars, deny to the de- 
 fendant the equal protection of the laws, within the mean- 
 ing of the Fourteenth Amendment to the National Consti- 
 tution. 
 
 3. In not affording notice and an opportunity to be heard 
 before the tax becomes finally and irrevocably fixed, they 
 deprive the defendant of its property without due process 
 of law. 
 
 4. In assessing a tax and enforcing it as a personal lia- 
 bility against defendant, upon property which it does not 
 own, but which is owned by other parties who pay no tax 
 upon it, the defendant's property, to the extent of the amount 
 taken beyond his proper share of the public burden, is 
 taken for public use, both without due process of law, and 
 without compensation. 
 
 As there must be judgment for defendant upon the points 
 arising under the National Constitution, it is unnecessary 
 for us to extend these opinions by examining the questions 
 arising, alone, under the State laws and Constitution, over 
 which we would have had no jurisdiction, but for the fact 
 that the questions already discussed are in the case. Those 
 are questions more properly belonging to the State Courts. 
 We have found the facts in the case, however, and if it 
 should turn out that we are in error upon the points de- 
 cided, the Supreme Court will be called upon to decide 
 those* questions also. If we are not in error, then those 
 questions will, doubtless, be left to the State Courts, where 
 they properly belong. 
 
 For the reasons herein, and in the opinion of the presid- 
 ing Justice stated, in addition to those given in the several 
 opinions delivered in the San Mateo Casey I think judgment 
 should be rendered for defendant as directed. 
 
The origin and general character of the customary law of miners explained. 
 By that law, the owner of a mining claim and the owner of a water right 
 in California hold their respective properties from the dates of their appro- 
 priationthe first in time being the first in right but, where both rights 
 can be enjoyed without interference with or material impairment of each 
 other, the enjoyment of both is allowed. 
 
 OPINION 
 
 OF THE 
 
 UNITED STATES SUPREME COURT 
 
 IN 
 
 jEisrDsrisoisr -vs. KIIRK:, 
 
 Delivered at October Term, 1878,* 
 
 BY 
 
 IVLR. JUSTICK KIKLD. 
 
 Error to the Supreme Court of California. The facts 
 are stated in the opinion of the court. 
 
 Mr. Justice FIELD delivered the opinion of the Court. 
 
 In 1873, the plaintiff's testator constructed a ditch or 
 canal in Placer County, California, to convey the waters 
 of a canon and of tributary and intermediate streams 
 to a mining locality known as Georgia Hill, distant 
 about seventeen miles, for mining, milling, and agri- 
 cultural purposes, and for sale. The ditch was completed 
 in December of that year, and immediately thereafter the 
 waters of the canon were turned into it. The ditch had 
 a capacity to carry a thousand inches of water, and it is 
 alleged that during the rainy season of the year in Cali- 
 fornia, which extends from about the 1st of November to 
 
 Reported in 98 U. S. 453. 
 
the 1st of April, the canon, tributaries, and intermediate 
 streams would supply that quantity, and during the dry 
 season not less than one hundred inches. The intention 
 of the testator, as declared on taking the initiatory steps 
 for their appropriation, was to divert two thousand inches 
 of the waters, by means of a flume and ditch. 
 
 In its course to Georgia Hill, the ditch crossed a gulch 
 or canon in the mountains known as Fulweiler's Gulch, 
 the waters of which had been appropriated some years 
 before by the defendant, who had constructed ditches to re- 
 ceive and convey them to a reservoir, to be used as needed. 
 One of these ditches in the gulch was intersected by the 
 ditch of the testator, and the waters which otherwise would 
 have flowed in it were diverted to his ditch. The defend- 
 ant thereupon repaired and reopened his own ditch, turn- 
 ing into it the waters which had previously flowed in it, 
 and in so doing cut and washed away a portion of the 
 ditch of the testator, as to let out the waters brought down 
 from the canon above and the intermediate streams. It 
 is for alleged damages thus caused to the testator, and to 
 restrain the continuance of the alleged injury to his ditch, 
 and any interference with its use, that the present action 
 was brought. 
 
 The defendant not only justified the cutting of the tes- 
 tator's ditch in the manner stated, because necessary for 
 the repair and reopening of his own ditch, and to retain 
 the waters of the gulch previously appropriated and used 
 by him, but on the further ground that the ditch of the 
 testator traversed mining claims owned many years be- 
 fore by him, or those through whom he derived his in- 
 terest, and would prevent their being successfully worked. 
 
 It appears from the answer, which the court finds to be 
 correct in this particular, that for many years prior to this 
 action the defendant, or his grantors and predecessors in 
 interest, had been in the possession of a portion of Ful- 
 weiler's Gulch, extending from a point about twelve hun- 
 dred feet below the crossing of the testator's ditch to a 
 
point about twelve hundred feet above it, including the 
 bed of the gulch and fifty feet of its banks, on each side; 
 that during this period the ground was continuously held 
 and worked for mining purposes, and as a mining claim, 
 in accordance with the usages, customs, and laws of miners 
 in force in the district; that in working the claim and ex- 
 tracting the gold the method employed was what is 
 termed " the hydraulic process," by which a large volume 
 of water is thrown with great force through a pipe or hose 
 upon the sides of the hills, and the gold-bearing earth 
 and gravel are washed down, and the gold so loosened 
 that it can be readily separated ; and that the ditch of the 
 testator traversed the immediate front and margin of this 
 gold-bearing earth and gravel, rendering the same inac- 
 cessible from the outlets of the gulch, down which they 
 would be washed, thus practically destroying, if allowed 
 to remain, the working of the mining ground. 
 
 On the argument., it was admitted that the defendant's 
 right of way for his ditch was superior to the testator's 
 right of way for the one owned by him, being earlier in 
 construction, and the waters of the gulch being first ap- 
 propriated; and, therefore, that the duty rested upon the 
 testator, and since his death upon his executor, to so ad- 
 just the crossings of the ditches as not to interfere with 
 the full use and enjoyment, by the defendant, of his prior 
 right. It was contended that such crossings had been so 
 adjusted by the testator, but were destroyed by the de- 
 fendant. 
 
 It was also admitted that the extension of the testator's 
 ditch, at the place where it was constructed across the 
 claim of the defendant, prevented the successful working 
 of the claim; but as the land over which the ditch passed, 
 and on which the claim is situated, is a portion of the 
 public domain of the United States, it was contended that 
 the right of way for the ditch was superior to the right to 
 work the claim; and that such superior right was con- 
 ferred by the ninth section of the act of Congress of July 
 26, 1866. That section enacted 
 
"That whenever, by priority of possession, rights to the 
 use of water for mining, agricultural, manufacturing, or 
 other purposes have vested and accrued, and the same 
 are recognized and acknowledged by the local customs, 
 laws, and the decisions of courts, the possessors and owners 
 of such vested rights shall be maintained and protected 
 in the same; and the right of way for the construction of 
 ditches and canals, for the purposes aforesaid, is here- 
 by acknowledged and confirmed : Provided, however, That 
 whenever, after the passage of this act, any person or 
 persons shall, in the construction of any ditch or canal, 
 injure or damage the possession of any settler on the pub- 
 lic domain, the party committing such injury or damage 
 shall be liable to the party injured for such injury or 
 damage." (14 Stat. 253.) 
 
 There are some verbal changes in the section as re- 
 enacted in the Revised Statutes, but none affecting its sub- 
 stance and meaning. (Rev. Stat. sec. 2339.) 
 
 The position of the plaintiff's counsel is, that of the two 
 rights mentioned in this section, only the right to the use 
 of water on the public lands, acquired by priority of pos- 
 session, is dependent upon local customs, laws, and de- 
 cisions of the courts; and that the right of way over such 
 lands for the construction of ditches and canals is conferred 
 absolutely upon those who have acquired the water right, 
 and is not subject in its enjoyment to the local customs, laws, 
 and decisions. This position, we think, cannot be sustained. 
 The object of the section was to give the sanction of the 
 United States, the proprietor of the lands, to possessory 
 rights, which had previously rested solely upon the local 
 customs, laws, and decisions of the courts, and to prevent 
 such rights from being lost on a sale of the lands. The 
 section is to be read in connection with other provisions 
 of the act of which it is a part, and in the light of matters 
 of public history relating to the mineral lands of the 
 United States. The discovery of gold in California was 
 followed, as is well known, by an immense immigration 
 
into the State, which increased its population within three 
 or four years from a few thousand to several hundred 
 thousand. The lands in which the precious metals were 
 found belonged to the United States, and were unsur- 
 veyed, and not open, by law, to occupation and settle- 
 ment. Little was known of them further than that they 
 were situated in the Sierra Nevada Mountains. Into these 
 mountains the immigrants in vast numbers penetrated, 
 occupying the ravines, gulches, canons, and probing the 
 earth in all directions for the precious metals. Wherever 
 they went, they carried with them that love of order and 
 system and of fair dealing which are the prominent char- 
 acteristics of our people. In every district which they 
 occupied they framed certain rules for their government, 
 by which the extent of ground they could severally hold 
 for mining was designated, their possessory right to such 
 ground secured and enforced, and contests between them 
 either avoided or determined. These rules bore a marked 
 similarity, varying in the several districts only according 
 to the extent and character of the mines; distinct pro- 
 visions being made for different kinds of mining, such as 
 placer mining, quartz mining, and mining in drifts or 
 tunnels. They all recognized discovery, followed by ap- 
 propriation, as the foundation of the possessor's title, and 
 development by working as the condition of its retention. 
 And they were so framed as to secure to all comers, within 
 practicable limits, absolute equality of right and privilege 
 in working the mines. Nothing but such equality would 
 have been tolerated by the miners, who were emphatically 
 the law-makers, as respects mining, upon the public lands 
 in the State. The first appropriator was everywhere held 
 to have, within certain well-defined limits, a better right 
 than others to the claims taken up ; and in all contro- 
 versies, except as against the government, he was regarded 
 as the original, owner, from whom title was to be traced. 
 But the mines could not be worked without water. With- 
 out water the gold would remain forever buried in the 
 
earth or rock. To carry water to mining localities, when 
 they were not on the banks of a stream or lake, became, 
 therefore, an important and necessary business in carry- 
 ing on mining. Here, also, the first appropriator of water 
 to be conveyed to such localities for mining or other bene- 
 ficial purposes, was recognized as having, to the extent of 
 actual use, the better right. The doctrines of the common 
 law respecting the rights of riparian owners were not con- 
 sidered as applicable, or only in a very limited degree, to 
 the condition of miners in the mountains. The waters 
 of rivers and lakes were consequently carried great dis- 
 tances in ditches and flumes, constructed with vast labor 
 and enormous expenditures of money, along the sides of 
 mountains and through canons and ravines, to suppty 
 communities engaged in mining, as well as for agricultu- 
 rists and ordinary consumption. Numerous regulations 
 were adopted, or assumed to exist, from their obvious 
 justness, for the security of these ditches and flumes, and 
 the protection of rights to water, not only between differ- 
 ent appropriators, but between them and the holders of 
 mining claims. These regulations and customs were ap- 
 pealed to in controversies in the State courts, and received 
 their sanction ; and properties to the value of many millions 
 rested upon them. For eighteen years from 1848 to 
 1866 the regulations and customs of miners, as enforced 
 and moulded by the courts and sanctioned by the legis- 
 lation of the State, constituted the law governing prop- 
 erty in mines and in water on the public mineral lands. 
 Until 1866, no legislation was had looking to a sale 
 of the mineral lands. The policy of the country had 
 previously been, as shown by the legislation of Congress, 
 to exempt such lands froift sale. In that year the act, 
 the ninth section of which we have quoted, was passed. 
 In the first section it was declared that the mineral 
 lands of the United States were free and open to ex- 
 ploration and occupation by citizens of the United 
 States, and those who had declared their intention to 
 
become citizens, subject to such regulations as might 
 be prescribed by law and the local customs or rules of 
 miners in the several mining districts, so far as the same 
 were not in conflict with the laws of the United States. 
 In other sections it provided for acquiring the title of 
 the United States to claims in veins or lodes of quartz 
 bearing gold, silver, cinnabar, or copper, the possessory 
 right to which had been previously acquired under the 
 customs and rules of miners. In no provision of the 
 act was any intention manifested to interfere with the 
 possessory rights previously acquired, or which might 
 be afterwards acquired; the intention expressed was to 
 secure them by a patent from the government. The 
 Senator of Nevada,* the author of the act, in advocat- 
 ing its passage in the Senate, spoke in high praise 
 of the regulations arid customs of miners, and por- 
 trayed in glowing language the wonderful results that 
 had followed the system of free mining which had pre- 
 vailed with the tacit consent of the government. The 
 legislature of California, he said, had wisely declared 
 that the rules and regulations of miners should be re- 
 ceived in evidence in all controversies respecting mining 
 claims, and, when not in conflict with the Constitution or 
 laws of the State or of the United States, should govern 
 their determination; and a series of wise judicial de- 
 cisions had moulded these regulations and customs into 
 "a comprehensive system of common law, embracing not 
 only mining law, properly speaking, but also regulating 
 the use of water for mining purposes." The miner's law, he 
 added, was a part of the miner's nature. He had made it, 
 and he trusted it and obeyed it. He had given the honest 
 toil of his life to discover wealth, which, when found, 
 was protected by no higher law than that enacted by 
 himself, under the implied sanction of a just and gen- 
 erous government. And the act proposed continued the 
 system of free mining, holding the mineral lands open 
 
 * Hon. William M. Stewart. 
 
8 
 
 to exploration and occupation, subject to legislation by 
 Congress and to local rules. It merely recognized the 
 obligation of the government to respect private rights 
 which had grown up under its tacit consent and approval. 
 It proposed no new system, but sanctioned, regulated, and 
 confirmed a system already established, to which the 
 people were attached. (Cong. Globe, 1st Sess. 39th Cong, 
 part iv. pp. 3225-3228.) 
 
 These statements of the author of the act in advocating 
 its adoption cannot, of course, control its construction, 
 where there is doubt as to its meaning; but they show 
 the condition of mining property on the public lands of 
 the United States, and the tenure by which it was held 
 by miners in the absence of legislation on the subject, 
 and thus serve to indicate the probable intention of Con- 
 gress in the passage of the act. 
 
 Whilst acknowledging the general wisdom of the regu- 
 lations of miners, as sanctioned by the State and moulded 
 by its courts, and seeking to give title to possessions ac- 
 quired under them, it must have occurred to the author, 
 as it did to others, that if the title of the United States 
 was conveyed to the holders of mining claims, the right 
 of way of owners of ditches and canals across the claims, 
 although then recognized by the local customs, laws, and 
 decisions, would be thereby destroyed, unless secured by 
 the act. And it was for the purpose of securing rights 
 to water, and rights of way over the public lands to con- 
 vey it, which were thus recognized, that the ninth section 
 was adopted, and not to grant rights of way where they 
 were not previously recognized by the customary law of 
 miners. The section purported in its first clause only to 
 protect rights to the use of- water for mining, manufac- 
 turing, or other beneficial purposes, acquired by priority 
 of possession, when recognized by the local customs, laws, 
 and decisions of the courts; and the second clause, de- 
 claring that the right of way for the construction of 
 ditches and canals to carry water for those purposes " is 
 
9 
 
 acknowledged and confirmed," cannot be construed as 
 conferring a right of way independent of such customary 
 law, but only as acknowledging and confirming such right 
 as that law gave. The proviso to the section conferred 
 no additional rights upon the owners of ditches subse- 
 quently constructed; it simply rendered them liable to 
 parties on the public domain whose possessions might be 
 injured by such construction. In other words, the United 
 States by the section said, that whenever rights to the 
 use of water by priority of possession had become vested, 
 and were recognized by the local customs, laws, and de- 
 cisions of the courts, the owners and possessors should be 
 protected in them ; and that the right of way for ditches and 
 canals incident to such water rights, being recognized in 
 the same manner, should be "acknowledged and con- 
 firmed ; " but where ditches subsequently constructed in- 
 jured by their construction the possessions of others on 
 the public domain, the owners of such ditches should be 
 liable for the injuries sustained. Any other construc- 
 tion would be inconsistent with the general purpose 
 of the act, which, as already stated, was to give the sanc- 
 tion of the government to possessory rights acquired 
 under the local customs, laws, and decisions of the courts. 
 
 This view of the object and meaning of the ninth sec- 
 tion was substantially taken by the Supreme Court of 
 California in the present case; it was adopted at an early 
 day by the Land Department of the government, and the 
 subsequent legislation of Congress respecting the mineral 
 lands is in harmony with it. (Letter of Commissioner 
 Wilson of Nov. 23, 1869; Copp's U. S. Mining Decisions, 
 24; Acts of Congress of July 9, 1870, and May 10, 1872, 
 Rev. Stat. tit. 32, c. 6.) 
 
 By the customary law of miners in California, as we 
 understand it, the owner of a mining claim and the 
 owner of a water right enjoy their respective properties 
 from the dates of their appropriation, the first in time 
 being the first in right; but where bothrighifiyjan be en- 
 
 'UNIVERSITY 1 
 
10 
 
 joyed without interference with or material impairment 
 of each other, the enjoyment of both is allowed. In the 
 present case, the plaintiff admits that it was incumbent 
 upon the testator or himself to so adjust the crossing of 
 the two ditches that the use of the testator's ditch should 
 not interfere with the prior right of the defendant to the 
 use of the water of the gulch ; and it would seem that, so 
 far as the flow of the water was concerned, this was done. 
 Had there been nothing further in the case, the claim of 
 the plaintiff would have been entitled to consideration. 
 But there was much more in the case. The chief value 
 of the water of the gulch was to enable the defendant to 
 work his mining claim by the hydraulic process. The 
 position of the testator's ditch prevented this working, 
 and thus deprived him of this value of the water, and 
 practically destroyed his mining claim. No system of 
 law with which we are acquainted tolerates the use of 
 one's property in this way so as to destroy the property 
 of another. The cutting and washing away of a portion 
 of the testator's ditch by the defendant, this having been 
 done "in the exercise, use, and enjoyment of his own 
 water rights, in the usual and in a reasonable manner," 
 as found by the court, and in order that his claim might 
 be worked as before, was not, therefore an injury for 
 which damages could be recovered.* 
 
 Judgment affirmed. 
 
 *The customary law of miners, as stated in the opinion, is not appli- 
 cable in California to controversies arising between them, or ditch owners, 
 and occupants of the public lands for agricultural or grazing purposes. 
 It has been the general policy of the State "to permit settlers in all ca- 
 pacities to occupy the public lands, and by such occupation to acquire 
 the right of undisturbed enjoyment against all the world but the true 
 owner." (Tartar v. Spring Creek Co., 5 Cal. 398.) But at an early day 
 an exception was made to this policy in cases where the interests of agri- 
 culturists and of miners conflicted. By an act passed April 20, 1852, a 
 right of action was given to any one settled upon the public lands for 
 the purpose of cultivating or grazing against parties interfering with his 
 premises, or injuring his lands where the same were designated by dis- 
 tinct boundaries, and did not exceed one hundred and sixty acres in 
 
11 
 
 extent; with a proviso, however, that if the lands contained mines of 
 precious metals, the claim of the occupant should not preclude any 
 persons desiring to do so from working the mines "as fully and unre- 
 servedly as they might or could do had no possession or claim been made 
 for grazing or agricultural purposes." (Stat. 1852, p. 158.) 
 
 Under this act the Supreme Court of the State held that miners, for 
 the purpose simply of mining, could enter upon the land thus occupied, 
 but that the act legalized what would otherwise have been a trespass, 
 and could not be extended by implication to a class of cases not specially 
 provided for. Accordingly, ditches constructed over lands thus held t 
 without the consent of the occupant, though designed to convey water 
 to mining localities for the purpose of mining, were held to be nuisances 
 and upon the complaint of the occupant were ordered to be abated. 
 (Stoakes v. Barrett, 5 Cal. 37; McClinton v. Bryden, id. 97; Fitzgerald v. 
 Urton, id. 308; Burge v. Underwood, 6 id. 46; Wermer v. Lowery, 11 id. 
 104.) 
 
 Since these decisions, there has been some legislation in the State, per- 
 mitting water to be conveyed, upon certain conditions, across the lands 
 of others. Such legislation, if limited, to merely regulating the terms 
 upon which possessory rights subsequently acquired on the public lands 
 in the State may be enjoyed in the absence of title from the United 
 States, may not be open to objection. 
 
Veins and Lodes in Mining 1 Claims Denned. 
 OPINION 
 
 OF THE 
 
 U. S. Circuit Court for the District of Nevada 
 
 IN 
 
 THE EUREKA CASE, 
 
 [Eureka Consolidated Mining Co. vs. Richmond Mining Co., of Nevada,] 
 
 DELIVERED AUGUST 22, 1877,* 
 BY 
 
 1VER. JUSTICE: 
 
 OF THE U. S. SUPREME COURT. 
 
 1. The terras " vein " and " lode " as used by miners, and in the mining 
 
 acts of Congress, are applicable to any zone or belt of mineralized 
 rock lying within boundaries clearly separating it from the neigh- 
 boring rock. 
 
 2. Under the mining acts of Congress, where one is seeking a patent for 
 
 his mining location, and gives the prescribed notice, any other claim- 
 ant of an unpateuted location objecting to the patent on account of 
 extent, or form, or because of asserted prior location, must come 
 forward with his objections and present them, or he will be after- 
 ward precluded from objecting to the issue of the patent. 
 
 3. The doctrine of "relation " cannot be applied so as to cut off the rights 
 
 of the earlier patentee under a later location. 
 
 4. The silence of the first locator when a subsequent locator applies for 
 
 a patent is, under the statute, a waiver of his priority. 
 
 5. The provision of the statute of 1872, requiring the lines of each claim 
 
 to be parallel to each other, is merely directory, and no consequence 
 is attached to a deviation from its direction. 
 
 6. " End lines " are not named in the act of 1866, but they are necessar- 
 
 ily implied in it. By allowing a certain number of feet on a ledge, 
 the mining law meant that a locator might follow his vein for that 
 distance on the course of a ledge, and to any depth within that dis- 
 tance. (14 Stat, 251.) 
 
 7. The presumption of law is that the officers charged with the super- 
 
 vision of applications for mining patents do their duty. If, under 
 
 * Reported in 4 Sawyer's Circuit Court Reports, 302. 
 
any circumstances, a patent for a mining location, issued after the 
 passage of the act of 1872, may be valid without the parallelism of 
 lines required by that act, the law will presume that such circum- 
 stances existed. 
 
 8. The patents allowed by these acts do not authorize the patentee to 
 
 follow the vein outside of the end lines of the claim vertically drawn 
 down through the lode, but authorize him to follow his vein with 
 its dips, angles, and variations to any depth, though it may enter 
 the laud lying on the side of the claim. Lines drawn down verti- 
 cally through the ledge or lode, at right angles with a line repre- 
 senting the course at the ends of the claimant's line of location, will 
 carve out a section of the ledge or lode within which he is permitted 
 to work, and out of which he cannot pass. 
 
 9. The act of 1866 allowed so many lineal feet of the particular lode 
 
 located and surface ground for the convenient working thereof. 
 The act of 1872 granted certain surface ground and the particular 
 lode located and all other lodes, the top or apex of which lies within 
 the surface lines, subject to the limitation that in following the lodes 
 to any depth the miner shall be confined to such portions thereof as 
 lie between vertical planes drawn downward through the end lines 
 of his location. The act of 1872 in terms annexes this condition to 
 the possession not only of claims subsequently located, but to the 
 possession of those previously located. (17 Stat. 91.) 
 
 10. In the case of lode claims, a dividing line between them, fixed by 
 agreement, upon the surface at a given point, or for a given distance, 
 must be extended along the dip of the lode, so far as that goes, and 
 must necessarily divide all that the location on the surface carries, 
 or it will not constitute a boundary between the claims. 
 
 By the Court, Mr. Justice FIELD. This is an action for 
 the possession of certain mining ground, particularly de- 
 scribed in the complaint, situated in Eureka mining dis- 
 trict, in the county of Eureka, in the State of Nevada. 
 The plaintiff is a corporation created under the laws of 
 California, and the defendant, the Richmond Mining 
 Company, is a corporation created under the laws of 
 Nevada. The other defendants, Thomas Wren and 
 Joseph Potts, are citizens of the latter State. The action 
 was originally commenced" in a State court of Nevada, 
 but upon application of the plaintiff', and upon the ground 
 of its incorporation in another State, and the presumed 
 citizenship, from that fact, of its corporators or stock- 
 holders in that State, it was transferred to the Circuit 
 
Court of the United States. The complaint in the State 
 court, in addition to the usual allegations of a declaration 
 in ejectment, set forth various grounds upon which was 
 based a prayer for an order restraining the defendants 
 from working the premises in controversy pending the 
 action. The defendants, in their answer to the com- 
 plaint, not only denied the title of the plaintiff, but made 
 various averments upon which a like restraining order 
 against the plaintiff was asked. Both orders were granted. 
 This union of a demand in ejectment for the property in 
 controversy, with a pra} r er for provisional equitable re- 
 lief, is permitted by the system of procedure which obtains 
 in the State courts, thus saving the parties the necessity 
 of litigating in two suits what can as readily and less 
 expensively be accomplished in one. But this union is 
 not permitted in the Federal courts; and upon the trans- 
 fer of the present action the pleadings of the plaintiff 
 were amended by substituting a regular complaint in 
 ejectment on the law side of the court, and a bill was 
 filed for an injunction on its equity side. The defend- 
 ants answered both, and also filed a cross-bill for an in- 
 junction against the plaintiff. 
 
 By arrangement of the parties, the defendants, Messrs. 
 Wren and Potts, are dropped out of the controversy, and 
 their names may be stricken from the pleadings. The 
 claim for damages is also waived in this action, without 
 prejudice to any future proceedings with respect to them. 
 By stipulation, the case at law the action of ejectment 
 is tried by the court without the intervention of a jury, 
 and the judges sit at San Francisco instead of Carson, 
 their finding and judgment to be entered in term time in 
 the latter place as though the case were heard and de- 
 cided there. The testimony taken in the action at law is 
 to be received as depositions in the equity suit, and both 
 cases are to be disposed of at the same time, to the end 
 that the whole controversy between the parties may be 
 settled at once. 
 
The premises in controversy are of great value, amount- 
 ing, by estimation, to several hundred thousands of 
 dollars, and the case has been prepared for trial with a 
 care proportionate to this estimate of the value of the 
 property, and the trial has been conducted by counsel on 
 both sides with eminent ability. 
 
 Whatever could inform, instruct, or enlighten the court 
 has been presented by them. Practical miners have 
 given us their testimony as to the location and working 
 of the mine. Men of science have explained to us how 
 it was probable that nature, in her processes, had depos- 
 ited the mineral where it is found. Models of glass have 
 made the hill, where the mining ground lies, transparent, 
 so that we have been able to trace the course of the veins, 
 and see the chambers of ore found in its depths. For 
 myself, after a somewhat extended judicial experience, cov- 
 ering now a period of nearly twenty years, I can say that 
 I have seldom, if ever, seen a case involving the consid- 
 eration of so many and varied particulars more thor- 
 oughly prepared or more ably presented. And what 
 has added a charm to the whole trial has been the con- 
 duct of counsel on both sides, who have appeared to assist 
 each other in the development of the facts of the case, 
 and have furnished an illustration of the truth that the 
 highest courtesy is consistent with the most earnest con- 
 tention. 
 
 The mining ground which forms the subject of contro- 
 versy is situated in a hill known as Ruby Hill, a spur of 
 Prospect Mountain, distant about two miles from the town 
 of Eureka, in Nevada. Prospect Mountain is several 
 miles in length, running in a northerly and southerly 
 course. Adjoining its northerly end is this spur called 
 Ruby Hill, which extends thence westerly, or in a south- 
 westerly direction. Along and through this hill, for a 
 distance slightly exceeding a mile, is a zone of limestone, 
 in which, at different places throughout its length, and 
 in various forms, mineral is found, this mineral appear- 
 
ing sometimes in a series or succession of ore bodies more 
 or less closely connected, sometimes in apparently iso- 
 lated chambers, and at other times in what would seem 
 to be scattered grains. And our principal inquiry is to 
 ascertain the character of this zone, in order to determine 
 whether it is to be treated as constituting one lode, or as 
 embracing several lodes, as that term is used in the acts 
 of Congress of 1866 and 1872, under which the parties 
 have acquired whatever rights they possess. In this in- 
 quiry the first thing to be settled is the meaning of the 
 term in those acts. This meaning being settled, the phys- 
 ical characteristics and the distinguishing features of the 
 zone will be considered. 
 
 Those acts give no definition of the term. They use it 
 always in connection with the term vein. The act of 
 1866 provided for the acquisition of a patent by any 
 person or association of persons claiming " a vein or lode 
 of quartz, or other rock in place, bearing gold, silver, cin- 
 nabar, or copper." The act of 1872 speaks of veins or 
 lodes of quartz or other rock in place, bearing similar 
 metals or ores. Any definition of the term should, there- 
 fore, be sufficiently broad to embrace deposits of the sev- 
 eral metals or ores here mentioned. In the construction 
 of statutes, general terms must receive that interpretation 
 which will include all the instances enumerated as com- 
 prehended by them. The definition of a lode given by 
 geologists is, that of a fissure in the earth's crust filled 
 with mineral matter, or, more accurately, as aggregations 
 of mineral matter containing ores in fissures. (See Von 
 Cotta's Treatise on Ore Deposits, Prime's translation, 26.) 
 But miners used the term before geologists attempted to 
 give it a definition. One of the witnesses in this case, 
 Dr. Raymond, who for many years was in the service of 
 the general government as Commissioner of Mining Sta- 
 tistics, and in that capacity had occasion to examine and 
 report upon a large number of mines in the States of 
 Nevada and California and the Territories of Utah and 
 
6 
 
 Colorado, says that he has been accustomed, as a min- 
 ing engineer, to attach very little importance to those 
 cases of classification of deposits which simply involve 
 the referring of the subject back to verbal definitions in 
 the books. The whole subject 'of the classification of 
 mineral deposits he states to be one in which the interests 
 of the miner have entirely overriden the reasonings of 
 the chemists and geologists. " The miners," to use his 
 language, " made the definition first. As used by miners, 
 before being defined by any authority, the term lode 
 simply meant that formation by which the miner could 
 be led or guided. It is an alteration of the verb lead; 
 and whatever the miner could follow, expecting to find 
 ore, was his lode. Some formation within which he 
 could find ore, and out of which he could not expect to 
 find ore, was his lode." The term lode-star, guiding-star, 
 or north star, he adds, is of the same origin. Cinnabar is 
 not found in any fissure of the earth's crust, or in any 
 lode, as defined by geologists, yet the acts of Congress 
 speak, as already seen, of lodes of quartz, or rock in place, 
 bearing cinnabar. Any definition of lode, as there used, 
 which did not embrace deposits of cinnabar, would be as 
 defective as if it did not embrace deposits of gold or silver. 
 The definition must apply to deposits of all the metals 
 named, if it apply to a deposit of any one of them. Those 
 acts were not drawn by geologists or for geologists; they 
 were not framed in the interests of science, and conse- 
 quently with scientific accuracy in the use of terms. They 
 were framed for the protection of miners in the claims 
 which they had located and developed, and should receive 
 such a construction as will carry out this purpose. The 
 use of the terms vein and lode in connection with each 
 other in the act of 1866, and'their use in connection with 
 the term ledge in the act of 1872, would seem to indicate 
 that it was the object of the legislator to avoid any limi- 
 tation in the application of the acts, which a scientific 
 definition of any one of these terms might impose. 
 
It is difficult to give any definition of the term as un- 
 derstood and used in the acts of Congress, which will not 
 be subject to criticism. A fissure in the earth's crust, an 
 opening in its rocks and strata made by some force of 
 nature, in which the mineral is deposited, would seem to 
 be essential to the definition of a lode, in the judgment of 
 geologists. But to the practical miner, the fissure and its 
 walls are only of importance as indicating the boundaries 
 within which he may look for and reasonably expect to 
 find the ore he seeks. A continuous body of mineralized 
 rock lying within any other well-defined boundaries on 
 the earth's surface and under it would equally constitute, 
 in his eyes, a lode. We are of opinion, therefore, that the 
 term as used in the acts of Congress is applicable to any 
 zone or belt of mineralized rock lying within boundaries 
 clearly separating it from the neighboring rock. It in- 
 cludes, to use the language cited by counsel, all deposits 
 of mineral matter found through a mineralized zone or 
 belt coming from the same source, impressed with the 
 same forms, and appearing to have been created by the 
 same processes. 
 
 Examining, now, with this definition in mind, the feat- 
 ures of the zone which separate and distinguish it from 
 the surrounding country, we experience little difficulty 
 in determining its character. We find that it is contained 
 within clearly defined limits, and that it bears unmistak- 
 able marks of originating, in all its parts, under the influ- 
 ence of the same creative forces. It is bounded on the 
 south side for its whole length, at least so far as explora- 
 tions have been made, by a wall of quartzite of several 
 hundred feet in thickness; and on its north side, for a 
 like extent, by a belt of clay, or shale, ranging in thick- 
 ness from less than an inch to seventy or eighty feet. At 
 the east end of the zone, in the Jackson mine, the quart- 
 ite and shale approach so closely as to be separated by a 
 bare seam, less than an inch in width. From that point 
 they diverge, until, on the surface in the Eureka mine, 
 
8 
 
 they are about five hundred feet apart, and on the sur- 
 face in the Richmond mine, about eight hundred feet. 
 The quartzite has a general dip to the north, at an angle 
 of about forty-five degrees, subject to some local varia- 
 tions as the course changes. The clay or shale is more 
 perpendicular, having a dip at an angle of about eighty 
 degrees. At some depth under the surface these two 
 boundaries of the limestone, descending at their respect- 
 ive angles, may come together. In some of the levels 
 worked they are now only from two to three hundred 
 feet apart. 
 
 The limestone found between these two limits the 
 wall of quartzite and the seam of clay or shale has, at 
 some period of the world's history, been subjected to some 
 dynamic force of nature, by which it has been broken up, 
 crushed, disintegrated, and fissured in all directions, so 
 as to destroy, except in places of a few feet each, so far as 
 explorations show, all traces of stratification ; thus spe- 
 cially fitting it, according to the testimony of the men of 
 science, to whom we have listened, for the reception of 
 the mineral which, in ages past, came up from the depths 
 below in solution, and was deposited in it. Evidence that 
 the whole mass of limestone has been, at some period, 
 lifted up and moved along the quartzite, is found in the 
 marks of attrition engraved on the rock. This broken, 
 crushed, and fissured condition pervades, to a greater or 
 less extent, the whole body, showing that the same forces 
 which operated upon a part operated upon the whole, 
 and at the same time. Wherever the quartzite is ex- 
 posed, the marks of attrition appear. Below the quartzite 
 no one has penetrated. Above the shale the rock has not 
 been thus broken and crushed. Stratification exists there. 
 If in some isolated places there is found evidence of dis- 
 turbance, that disturbance has not been sufficient to affect 
 the stratification. The broken, crushed, and fissured con- 
 dition of the limestone gives it a specific, individual char- 
 
acter, by which it can be identified and separated from 
 all other limestone in the vicinity. 
 
 In this zone of limestone numerous caves or chambers 
 are found, further distinguishing it from the neighboring 
 rock. The limestone being broken and crushed up as 
 stated, the water from above readily penetrated into it, 
 and, operating as a solvent, formed these caves and 
 chambers. No similar cavities are found in the rock be- 
 yond the shale, its hard and unbroken character not per- 
 mitting, or at least opposing, such action from the water 
 above. 
 
 Oxide of iron is also found in numerous places through- 
 out the zone, giving to the miner assurance that the metal 
 he seeks is in its vicinity. 
 
 This broken, crushed, and fissured condition of the 
 limestone, the presence of the oxides of iron, the caves or 
 chambers we have mentioned, with the wall of quartzite 
 and seam of clay bounding it, give to the zone, in the 
 eyes of the practical miner, an individuality, a oneness as 
 complete as that which the most perfect lode in a geo- 
 logical sense ever possessed. Each of the characteristics 
 named, though produced at a different period from the 
 others, was undoubtedly caused by the same forces ope- 
 rating at the same time upon the whole body of the lime- 
 stone. 
 
 Throughout this zone of limestone, as we have already 
 stated, mineral is found in the numerous fissures of the 
 rock. According to the opinions of all the scientific men 
 who have been examined, this mineral was brought up 
 in solution from the depths of the earth below, and would, 
 therefore, naturally be very irregularly deposited in the 
 fissures of the crushed matter, as these fissures are in 
 every variety of form and size, and would also find its 
 way in minute particles in the loose material of the rock. 
 The evidence shows that it is sufficiently diffused to jus- 
 tify giving to the limestone the general designation of 
 mineralized matter metal-bearing rock. The three sci- 
 2 
 
10 
 
 entific experts produced by the plaintiff, Mr. Keyes, Mr. 
 Raymond, and Mr. Hunt, all of them of large experience 
 and extensive attainments, and two of them of national 
 reputation, have given it as their opinion, after examin- 
 ing the ground, that the zone of limestone between the 
 quartzite and the shale constitutes one vein or lode, in 
 the sense in which those terms are used by miners. Mr. 
 Keyes, who for years was superintendent of the mine of 
 the plaintiff, concludes a minute description of the char- 
 acter and developments of the ground by stating that, in 
 his judgment, according to the customs of miners in this 
 country and common sense, the whole of that space should 
 be considered and accepted as a lead, lode, or ledge of 
 metal-bearing rock in place. 
 
 Dr. Raymond, after giving a like extended account of 
 the character of the ground, and his opinion as to the 
 causes of its formation, and stating with great minuteness 
 the observations he had made, concludes by announcing 
 as his judgment, after carefully weighing all that he had 
 seen, that the deposit between the quartzite and the shale 
 is to be considered as a single vein in the sense in which 
 the word is used by miners that is, as a single ore de- 
 posit of identical origin, age, and character throughout. 
 
 Dr. Hunt, after stating the result of his examination of 
 the ground, and his theory as to the formation of the 
 mine, gives his judgment as follows: "My conclusion is 
 this: That this whole mass of rock is impregnated with 
 ore; that, although the great mass of ore stretches for a 
 long distance above horizontally and along an incline 
 down the foot-wall, as I have traced it, from this deposit 
 you can also trace the ore into a succession of great cavi- 
 ties or bonanzas lying irregularly across the limestone 
 and into smaller caverns oT chasms of the same sort, and 
 that the whole mass of the limestone is irregularly im- 
 pregnated with the ore. I use the word impregnation in 
 the sense that it has penetrated here and there; little 
 patches and stains, ore-vugs and caverns and spaces of all 
 
11 
 
 sizes and all shapes, irregularly disseminated through the 
 mass. I conclude, therefore, that this great mass of ore 
 is, in the proper sense of the word, a great lode, or a great 
 vein, in the sense in which the word is used by miners, 
 and that practically the only way of utilizing this deposit 
 is to treat the whole of it as one great ore-bearing lode or 
 mass of rock." 
 
 This conclusion as to the zone constituting one lode of 
 rock -bearing metal, it is true, is not adopted by the men 
 of science produced as witnesses by the defendant, the 
 Richmond Company. These latter gentlemen, like the 
 others, have had a large experience in the examination 
 of mines, and some of them have acquired a national 
 reputation for their scientific attainments. No one ques- 
 tions their learning or ability, or the sincerity with which 
 they have expressed their convictions. They agree with 
 the plaintiff's witnesses as to the existence of the miner- 
 alized zone of limestone with an underlying quartzite 
 and an overlying shale ; as to the broken and crushed 
 condition of the limestone, and substantially as to the 
 origin of the metal and its deposition in the rock. In 
 nearly all other respects they disagree. In their judg- 
 ment, the zone of limestone has no features of a lode. It 
 has no continuous fissure, says Mr. King, to mark it as 
 a lode. A lode, he adds, must have a foot-wall and a 
 hanging-wall, and if it is broad, these must connect at 
 both ends, and must connect downward. Here, there is 
 no hanging-wall or foot-wall ; the limestone only rests as 
 a matter of stratigraphical fact on underlying quartzite, 
 and the shale overlies it. And distinguishing the struct- 
 ure at Ruby Hill from the Comstock lode, the same wit- 
 ness says that the one is a series of sedimentary beds laid 
 down in the ocean and turned up ; the other is a fissure 
 extending between two rocks. 
 
 The other witnesses of the defendant, so far as they have 
 expressed any opinion as to what constitutes a lode, have 
 agreed with the views of Mr. King. It is impossible not 
 
12 
 
 to perceive that these gentlemen at all times carried in 
 their minds the scientific definition of the term as given 
 by geologists, that a lode is a fissure in the earth's crust 
 filled with mineral matter, and disregarded the broader, 
 though less scientific, definition of the miner who ap- 
 plies the term to all zones or belts of metal -bearing rock 
 lying within clearly marked boundaries. For the reasons 
 already stated, we are of opinion that the acts of Congress 
 use the term in the sense in which miners understand it. 
 
 If the scientific definition of a lode, as given by geolo- 
 gists, could be accepted as the only proper one in this 
 case, the theory of distinct veins existing in distinct fis- 
 sures of the limestone, would be not only plausible, but 
 reasonable; for that definition is not met by the condi- 
 tions in which the Eureka mineralized zone appears. 
 But as that definition cannot be accepted, and the zone 
 presents the case of a lode as that term is understood by 
 miners, the theory of separate veins, as distinct and dis- 
 connected bodies of ore, falls to the ground. It is, there- 
 fore, of little consequence what name is given to the 
 bodies of ore in the limestone, whether they be called 
 pipe veins, rake veins, or pipes of ore, or receive the new 
 designation suggested by one of the witnesses, they are 
 but parts of one greater deposit, which permeates, in a 
 greater or less degree, with occasional intervening spaces 
 of barren rock, the whole mass of limestone, from the 
 Jackson mine to the Richmond, inclusive. 
 
 The acts of Congress of 1866 and 1872 dealt with a 
 practical necessity of miners; they were passed to protect 
 locations on veins or lodes, as miners understood those 
 terms. Instances without number exist where the mean- 
 ing of words in a statute hasbeen enlarged or restricted and 
 qualified to carry out the intention of the legislature. 
 The inquiry, where any uncertainty exists, always is as 
 to what the legislature intended, and when that is ascer- 
 tained it controls. In a recent case before the Supreme 
 Court of the United States, singing birds were held not 
 
13 
 
 to be live animals, within the meaning of a revenue act 
 of Congress. (Reiche v. Smythe, 13 Wall. 162.) And in 
 a previous case, arising upon the construction of the 
 Oregon Donation Act of Congress, the term, a single 
 man, was held to include in its meaning an unmarried 
 woman. (Silver v. Ladd, 7 Wall. 219.) If any one will 
 examine the two decisions, reported as they are in Wal- 
 lace's Reports, he will find good reasons for both of them. 
 Our judgment being that the limestone zone in Ruby 
 Hill, in Eureka district, lying between the quartzite and 
 the shale, constitutes, within the meaning of the acts of 
 Congress, one lode of rock bearing metal, we proceed to 
 consider the rights conveyed to the parties by their re- 
 spective patents from the United States. All these patents 
 are founded upon previous locations, taken up and im- 
 proved according to the customs and rules of miners in 
 the district. Each patent is evidence of a perfected right 
 in the patentee to the claim conveyed, the initiatory step 
 for the acquisition of which was the original location. If 
 the date of such location be stated in the instrument, or 
 appear from the record of its entry in the local land office, 
 the patent will take effect by relation as of that date, so 
 far as may be necessary to cut off all intervening claim- 
 ants, unless the prior right of the patentee, by virtue of 
 his earlier location, has been lost by a failure to contest 
 the claim of the intervening claimant, as provided in the 
 act of 1872. As in the system established for the aliena- 
 tion of the public lands, the patent is the consummation 
 of a series of acts, having for their object the acquisition 
 of the title, the general rule is to give to it an operation 
 by relation at the date of the initiatory step, so far as may 
 be necessary to protect the patentee against subsequent 
 claimants to the same property. As was said by the Su- 
 preme Court in the case of Shepley v. Cowan, (1 Otto, 338,) 
 where two parties are contending for the same property, 
 the first in time, in the commencement of proceedings for 
 
14 
 
 the acquisition of the title, when the same are regularly 
 followed up, is deemed to be the first in right. 
 
 But this principle has been qualified in its application 
 to patents of mining ground, by provisions in the act of 
 1872, for the settlement of adverse claims before the issue 
 of the patent. Under that act, when one is seeking a 
 patent for his mining location and gives proper notice of 
 the fact as there prescribed, any other claimant of an un- 
 patented location objecting to the patent of the claim, 
 either on account of its extent or form, or because of 
 asserted prior location, must come forward with his objec- 
 tions and present them, or he will afterwards be precluded 
 from objecting to the issue of the patent. While, there- 
 fore, the general doctrine of relation applies to mining 
 patents so as to cut off intervening claimants, if any there 
 can be, deriving title from other sources, such perhaps as 
 might arise from a subsequent location of school warrants 
 or a subsequent purchase from the State, as in the case of 
 Heydenfeldt v. Daney Gold Mining Company, reported in 
 the third of Otto, the doctrine cannot be applied so as to 
 cut off the rights of the earlier patentee, under a later 
 location where no opposition to that location was made 
 under the statute. The silence of the first locator is, under 
 the statute, a waiver of his priority. 
 
 But from the view we take of the rights of the parties 
 under their respective patents, and the locations upon 
 which those patents were issued, the question of priority 
 of location is of no practical consequence in the case. 
 
 The plaintiff is the patentee of several locations on the 
 Ruby Hill lode, but for the purpose of this action it is 
 only necessary to refer to three of them the patents for 
 the Champion, the At Last, and the Lupita or Margaret 
 claims. The first of these patents was issued in 1872, the 
 second in 1876, and the third in 1877. Within the end 
 lines of the locations, as patented in all these cases, when 
 drawn down vertically through the lode, the property in 
 controversy falls. Objection is taken to the validity of 
 
15 
 
 the last two patents, because the end lines of the surface 
 locations patented are not parallel, as required by the act 
 of 1872. But to this objection there are several obvious 
 answers. In the first place, it does not appear upon what 
 locations the patents were issued. They may have been, 
 and probably were, issued upon locations made under the 
 act of 1866, where such parallelism in the end lines of 
 the surface locations was not required. The presumption 
 of the law is, that the officers of the executive department, 
 specially charged with the supervision of applications for 
 mining patents and the issue of such patents, did their 
 duty; and in an action of ejectment mere surmises to the 
 contrary will not be listened to. If, under any possible 
 circumstances, a patent for a location without such par- 
 allelism may be valid, the law will presume that such 
 circumstances existed. A patent of the United States for 
 land, whether agricultural or mineral, is something upon 
 which its holder can rely for peace and security in his 
 possessions. In its potency it is ironclad against all mere 
 speculative inferences. In the second place, the provision 
 of the statute of 1872, requiring the lines of each claim to 
 be parallel to each other, is merely directory, and no con- 
 sequence is attached to a deviation from its direction. 
 Its object is to secure parallel end lines drawn vertically 
 down, and that was effected in these cases by taking the 
 extreme points of the respective locations on the length 
 of the lode. In the third place, the defect alleged does 
 not concern the defendant, and no one but the govern- 
 ment has the right to complain. 
 
 The defendant, the Richmond Mining Company, also 
 holds several patents issued to it upon different locations; 
 but in this case it specially relies upon the patents of the 
 Richmond and Tip-top claims. It is alleged that these 
 patents were issued upon locations made earlier than any 
 upon which the patents to the plaintiff were issued. As- 
 suming this to be the fact, and claiming from it that the 
 patents, by relation back to such locations, antedate in 
 
1G 
 
 their operation the patents of the plaintiff, and the fur- 
 ther fact that the locations were made under the act of 
 1866, the defendant relies, upon the facts assumed, to de- 
 feat the pretensions of the plaintiff. It contends that, in- 
 asmuch as the croppings of the vein it works are within 
 the surface of its patented locations, it can follow the vein 
 wherever it leads, though it be outside of the end lines of 
 the locations when vertically drawn down through the 
 lode. Its position is that, whenever under the law of 
 1866 a location was made on a lode or vein, a right was 
 acquired to follow the vein wherever it might lead, with- 
 out regard to the end lines of the location. This position 
 is urged with great persistence by one of the counsel of 
 the defendant, and with the ability which characterizes 
 all his discussions. 
 
 The second section of the act of 1866, upon the pro- 
 visions of which this position is based, provides: "That 
 whenever any person, or association of persons, claims a 
 vein or lode of quartz, or other rock in place, bearing 
 gold, silver, cinnabar, or copper, having previously occu- 
 pied and improved the same according to local customs 
 or rules of miners in the district where the same is sit- 
 uated, and having expended, in actual labor and im- 
 provements thereon, an amount of not less than one 
 thousand dollars, and in regard to whose possession there 
 is no controversy or opposing claim, it shall and may be 
 lawful for said claimant, or association of claimants, to 
 file in the local land office a diagram of the same, so ex- 
 tended, laterally or otherwise, as to conform to the local 
 laws, customs, and rules of miners, and to enter such tract 
 and receive a patent therefor, granting such mine, to- 
 gether with the right to follow such vein, or lode, with 
 its dips, angles, and variations, to any depth, although it 
 may enter the land adjoining, which land adjoining 
 shall be sold subject to this condition." 
 
 It will be seen by this section that, to entitle a party to 
 a patent, his claim must have been occupied and im- 
 
17 
 
 proved, according to the local customs or rules of miners 
 of the district, and that his diagram of the same, filed in 
 the land office, in its extension laterally or otherwise, 
 must be in conformity with them. 
 
 The rules of the miners in the Eureka mining district, 
 adopted in 1865 laws of the district, as they are termed 
 by the miners provided that claims of mining ground 
 should be made by posting a written notice on the claim- 
 ant's ledge, defining its boundaries, if possible; that each 
 claim should consist of two hundred feet on the ledge, but 
 claimants might consolidate their claims by locating in 
 a common name, if, in the aggregate, no more ground 
 was claimed than two hundred feet for each name, and 
 that each locator should be entitled to all the dips, spurs, 
 and angles connecting with his ledge, and that a record 
 of all claims should be made within ten days from the 
 date of location. The rules also allowed claimants to hold 
 one hundred feet each side of their ledge for mining and 
 building purposes, but declared that they should not be 
 entitled to any other ledge within this surface. 
 
 It will be perceived by these rules that they had refer- 
 ence entirely to locations of claims on ledges. It would 
 seem that the miners of the district then supposed that 
 the mineral in the district was only found in veins or 
 ledges, and not in isolated deposits. In February, 1869, 
 new rules were added to those previously passed, author- 
 izing the location of such deposits. These new rules pro- 
 vided that each deposit claim should consist of one hun- 
 dred feet square, and that the location should take all 
 the mineral within the ground to any depth. 
 
 Under these rules, square locations and linear locations 
 were made by parties, through whom the defendant de- 
 rives title on what is called the Richmond ledge, and 
 linear locations were made on what is called the Tip-top 
 ledge, with surface locations for mining purposes, both 
 parties claiming with their locations all dips, spurs, and 
 angles. It is only of the linear locations we have occa- 
 3 
 
18 
 
 sion to speak ; it is under them that the defendant asserts 
 title to the premises in controversy. 
 
 Now, as neither the rules of miners in Eureka mining 
 district nor the act of 1866, in terms, speak of end lines 
 to locations made on ledges, nor in terms impose any 
 limitation upon miners following these veins wherever 
 they may lead, it is contended that no such limitation 
 can be considered as having existed and be enforced against 
 the defendant. The act of 1866, it is said, recognizes the 
 right of the locator to follow his vein outside of any end 
 lines drawn vertically down when it permits him to ob- 
 tain a patent granting his mine, "together with the right 
 to follow such vein or lode with its dips, angles, and va- 
 riations to any depth, although it may enter the land 
 adjoining, which land adjoining shall be sold subject to 
 this condition." 
 
 It is true that end lines are not in terms named in the 
 rules of the miners, but they are necessarily implied, and 
 no reasonable construction can be given to them without 
 such implication. What the miners meant by allowing 
 a certain number of feet on a ledge was that each locator 
 might follow his vein for that distance on the course of 
 the ledge, and to any depth within that distance. So 
 much of the ledge he was permitted to hold as lay within 
 vertical planes drawn down through the end lines of his 
 location, and could be measured anywhere by the feet on 
 the surface. If this were not so, he might by the bend of 
 his vein hold under the surface along the course of the 
 ledge double and treble the amount he could take on the 
 surface. Indeed, instead of being limited by the number 
 of feet prescribed by the rules, he might in some cases 
 oust all his neighbors and take the whole ledge. No 
 construction is permissible which would substantially 
 defeat the limitation of quantity on a ledge, which was 
 the most important provision in the whole system of 
 rules. 
 
 Similar rules have been adopted in numerous mining 
 
19 
 
 districts, and the construction thus given has been uni- 
 formly and everywhere followed. We are confident that 
 no other construction has ever been adopted in any min- 
 ing district in California or Nevada. And the construc- 
 tion is one which the law would require in the absence 
 of any construction by miners. If, for instance, the State 
 were to-day to deed a block in the city of San Francisco 
 to twenty persons, each to take twenty feet front, in a 
 certain specified succession, each would have assigned to 
 him by the law a section parallel with that of his neigh- 
 bor of twenty feet in width, cut through the block. No 
 other mode of division would carry out the grant. 
 
 The act of 1866 in no respect enlarges the right of the 
 claimant beyond that which the rules of the mining dis- 
 trict gave him. The patent which the act allows him to 
 obtain does not authorize him to go outside of the end 
 lines of his claim, drawn down vertically through the 
 ledge or lode. It only authorizes him to follow his vein 
 with its dips, angles, and variations, to any depth, al- 
 though it may enter land adjoining that is, land lying 
 beyond the area included within his surface lines. It is 
 land lying on the side of the claim, not on the ends of it, 
 which may be entered. The land on the ends is reserved 
 for other claimants to explore. It is true, as stated by the 
 defendant, that the surface land taken up in connection 
 with a linear location on the ledge or lode is, under the 
 act of 1866, intended solely for the convenient working of 
 the mine, and does not measure the miner's right, either 
 to the linear feet upon its course, or to follow the dips, 
 angles, and variations of the vein, or control the direction 
 he shall take. But the line of location taken does meas- 
 ure the extent of the miner's right. That must be along 
 the general course or strike, as it is termed, of the ledge 
 or lode. Lines drawn vertically down through the ledge 
 or lode, at right angles with a line representing this 
 general course at the ends of the claimant's line of loca- 
 tion, will carve out, so to speak, a section of the ledge or 
 
20 
 
 lode, within which he is permitted to work, and out of 
 which he cannot pass. 
 
 As the act of 1866 requires the applicant for a patent 
 to file in the local office a- diagram of his claim, such dia- 
 gram must necessarily present something more than the 
 mere linear location. It is intended that it should em- 
 brace the surface claimed for the working of the mine. 
 In this way each of the patents of the parties embraces 
 one or more acres and the fraction of an acre of surface 
 ground and some hundred linear feet on the lode. 
 
 The act of 1872 preserves to the miner the rights ac- 
 quired under the act of 1866, and confers upon him addi- 
 tional rights. Under the act of 1866, he could only hold 
 one lode or vein, although more than one appeared with- 
 in the lines of his surface location. The surface ground 
 was allowed him for the convenient working of the lode 
 or vein located, and for no other purpose ; it conferred 
 no right to any other lode or vein. But the act of 1872 
 alters the law in this respect ; it grants to him the exclu- 
 sive right of possession to a quantity of surface ground 
 not exceeding a specified amount, and not only to the 
 particular lode or vein located, but to all other veins, 
 lodes, and ledges, the top or apex of which lies within 
 the surface lines of his location, with the right to follow 
 such veins, lodes, or ledges to any depth. But these ad- 
 ditional rights are granted subject to the limitation that 
 in following the veins, lodes, or ledges the miner shall be 
 confined to such portions thereof as lie between vertical 
 planes drawn downward through the end lines of his lo- 
 cation, and a further limitation upon his right in cases 
 where two or more veins intersect or cross each other. 
 The act in terms annexes these conditions to the posses- 
 sion not only of claims subsequently located, but to the 
 possession of those previously located. This fact, taken 
 in connection with the reservation of all rights acquired 
 under the act of 1866, indicates that in the opinion of 
 the legislature no change was made in the rights of pre- 
 
21 
 
 vious locators by confining their claims within the end 
 lines. The act simply recognized a pre-existing rule 
 applied by miners to a single vein or lode of the locator, 
 and made it applicable to all veins or lodes found within 
 the surface lines. 
 
 Our opinion, therefore, is* that both the defendant and 
 the plaintiff, by virtue of their respective patents, whether 
 issued upon locations under th'e act of 1866, or under the 
 act of 1872, were limited to veins or lodes lying within 
 planes drawn vertically downward through the end lines 
 of their respective locations; and that each took the ores 
 found within those planes at any depth in all veins or 
 lodes, the apex or top of which lay within the surface 
 lines of its locations. 
 
 The question of priority of location is, therefore, as al- 
 ready stated, of no practical importance in the case. This 
 question can only be important where the lines of one 
 patent overlap those of another patent. Here neither the 
 plaintiff nor defendant could pass outside of the end lines 
 of its own locations, whether they were made before or 
 after those upon which the other party relies. And inas- 
 much as the ground in dispute lies within planes drawn 
 vertically downward through the end lines of the plain- 
 tiff's patented locations, our conclusion is that the ground 
 is the property of the plaintiff, and that judgment must 
 be for its possession in its favor. 
 
 The same conclusion would be reached if we looked 
 only to the agreement of the parties made on the sixteenth 
 of June, 1873. At that time the plaintiff owned the pat- 
 ented claim called the Lookout claim, adjoining on the 
 north the Richmond claim. The defendant had worked 
 down from an incline in the Richmond and Tip-top into 
 the ore under the surface lines of the Lookout patent. 
 The plaintiff thereupon brought an action for the recov- 
 ery of the ground and the ores taken from it. A com- 
 promise and settlement followed which are contained in 
 an agreement of that date, and were carried out by an 
 
22 
 
 exchange of deeds. A map or plat was made showing 
 the different claims held by the two parties. A line 
 was drawn upon this map, on one side of which lay the 
 Champion, the At Last, and the Margaret claims, and on 
 the other side lay the Richmond arid the Lookout claims. 
 By the agreement of the parties, the plaintiff, on the one 
 hand, was to convey to the defendant the Lookout ground, 
 and also all the mining ground lying on the northwest- 
 erly side of 'the line designated, with the ores, precious 
 metals, veins, lodes, ledges, deposits, dips, spurs, or angles, 
 on, in, or under the same, and to dismiss all pending 
 actions against the defendant; and, on the other hand, 
 the defendant was to pay to the plaintiff the sum of 
 $85,000, and to convey, with warranty, against its own 
 acts, all its right, title, or interest in and to all the mining 
 ground situated in the Eureka mining district, on the 
 southeasterly side of the designated line, and in and to 
 all ores, precious metals, veins, lodes, ledges, deposits, 
 dips, spurs, or angles, on* in, or under the same. "It 
 being," says the agreement, "the object and intention of 
 the said parties hereto to confine the workings of the 
 party of the second part (the Richmond Mining Com- 
 pany) to the northwesterly side of the said line continued 
 downward to the centre of the earth, which line is hereby 
 agreed upon as the permanent boundary line between 
 the claims of the said parties." 
 
 The deeds executed between the parties the same 
 day were in accordance with this agreement. The deed 
 of the Richmond Mining Company to the plaintiff con- 
 veyed all the mining ground lying on the southeasterly 
 side of the designated line, "together with all the dips, 
 spurs, and angles, and also all the metals, ores, gold and 
 silver-bearing quartz, rock, a'nd earth therein, and all the 
 rights, privileges, and franchises thereto incident, append- 
 ant, and appurtenant, or therewith usually had and en- 
 joyed." 
 
 The line thus designated, extended down in a direct 
 
23 
 
 line along the dip of the lode, would cut the Potts 
 chamber, and give the ground in dispute to the plaintiff. 
 That it must be so extended necessarily follows from the 
 character of some of the claims it divides. As the Rich- 
 mond and the Champion were vein or lode claims, a line 
 dividing them must be extended along the dip of the 
 vein or lode, so far as that goes, or it will not constitute 
 a boundary between them. All lines dividing claims 
 upon veins or lodes necessarily divide all that the loca- 
 tion on the surface carries, and would not serve as a 
 boundary between them if such were not the case. The 
 plaintiff would, therefore, be the owner of the ground in 
 dispute by the deed of the defendant, even if it could not 
 assert such ownership solely upon its patented locations. 
 Our finding, therefore, is for the plaintiff, and judgment 
 must be entered thereon in its favor for the possession of 
 the premises in controversy. 
 
 U1TI7BRSITT 
 

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