[* 17] and credit shall be given in * each State to the public acts, records, and judicial proceedings of every other State.1

The last provisions that we shall here notice are that the United States shall guarantee to every State a republican form of government, and that no State shall grant any title of nobility. The

purpose of these is to protect a Union founded on republi[* 18] can principles, and composed entirely of * republican members against aristocratic and monarchial innovations.1

1 Const. of U. S. art. 4. This clause of the Constitution has been the subject of a good deal of discussion in the courts. It is well settled that if the record of a judgment shows that it was rendered without service of process or appearance of the defendant, or if that fact can be shown without contradicting the recitals of the record, it will be treated as void in any other State, notwithstanding this constitutional provision. Benton v. Burgot, 10 S. & R. 242; Thurber v. Blackbourne, 1 N. H. 242; Hall v. Williams, 6 Pick. 232; Aldrich v. Kinney, 4 Conn. 380; Bradshaw v. Heath, 13 Wend. 407; Robinson v. Ward's Executors, 8 Johns. 86; Fenton v. Garlick, ib. 194; Kilbourn v. Woodworth, 5 Johns. 37; Pawling v. Bird's Executors, 13 Johns. 192; Starbuck v. Murray, 5 Wend. 161; Noyes v. Butler, 6 Barb. 613; Woodward v. Tremere, 6 Pick. 354; Lincoln v. Tower, 2 McLean, 473; Westervelt v. Lewis, ib. 511; Bimelar v. Dawson, 4 Scam. 536; Gleason v. Dodd, 4 Met. 333; Warren v. M'Carthy, 25 Ill. 95; Rape v. Heaton, 9 Wis. 328; Wood v. Watkinson, 17 Conn. 500; Norwood v. Cobb, 24 Texas, 551; McLaurine v. Monroe, 30 Mo. 462; Commonwealth v. Blood, 97 Mass. 538. But whether it would be competent to show, in opposition to the recitals of the record, that a judgment of another State was rendered without jurisdiction having been obtained of the person of the defendant, is not settled by the authorities. Many cases hold not. Field v. Gibbs, 1 Pet. C. C. · 156; Green v. Sarmiento, ib. 76; Lincoln v. Tower, 2 McLean, 473; Westervelt v. Lewis, ib. 511; Roberts v. Caldwell, 5 Dana, 512; Hensley v. Force, 7 Eng. 756; Pearce v. Olney, 20 Conn. 544; Hoxie v. Wright, 2 Vt. 263; Newcomb v. Peck, 17 Vt. 302; Willcox v. Kassick, 2 Mich. 165; Bimelar v. Dawson, 4 Scam. 536; Welch v. Sykes, 3 Gil. 197; Harbin v. Chiles, 20 Mo. 314; Wetherell v. Stillman, 65 Penn. St. 105. Other cases admit such evidence. Starbuck v. Murray, 5 Wend. 148; Holbrook v. Murray, ib. 161; Shumway v. Stillman, 6 Wend. 447; Borden v. Fitch, 15 Johns. 121; Hall v. Williams, 6 Pick. 232; Aldrich v. Kinney, 4 Conn. 380; Bradshaw v. Heath, 13 Wend. 407; Hoffman v. Hoffman, 46 N. Y. 30; Gleason v. Dodd, 4 Met. 333; Kane v. Cook, 8 Cal. 449; Norwood v. Cobb, 24 Texas, 551. The same defences may be made to a judgment when sued in another State which could have been made to it in the State where rendered. Hampton v. McConnel, 3 Wheat. 234; Mills v. Duryea, 7 Cranch, 484; Steele v. Smith, 7 W. & S. 447; Bank of the State v. Dalton, 9 How. 528. But no others: Green v. Van Buskirk, 7 Wall. 139; Christmas v. Russell, 5 Wall. 290; Cheever v. Wilson, 9 Wall. 108; People v. Dawell, 25 Mich. 247.

2 Const. of U. S. art. 4, § 4.

4

3 Const. of U. S. art. 1, § 10.

Federalist, Nos. 43 and 44. It does not fall within our province to discuss

So far as a particular consideration of the foregoing provisions falls within the plan of our present work, it will be more convenient to treat of them in another place, especially as all of them which have for their object the protection of person or property are usually repeated in the bills of rights contained in the State constitutions, and will require some notice at our hands as a part of State constitutional law.

Where powers are conferred upon the general government, the exercise of the same powers by the States is impliedly prohibited, wherever the intent of the grant to the national government would be defeated by such exercise. On this ground it is held that the States cannot tax the agencies or loans of the general government; since the power to tax, if possessed by the States in regard to these objects, might be so exercised as altogether to destroy such agencies and impair or even destroy the national credit. And where by the national Constitution jurisdiction is given to the national courts with a view to the more efficient and harmonious working of the system organized under it, it is competent for Congress in its wisdom to make that jurisdiction exclusive of the State courts.2 On some other subjects State laws may be valid until the power of Congress is exercised, when they become superseded, either wholly, or so far as they are found inconsistent. The States may legislate on the subject of bankruptcy if there be no law of Congress which will conflict. State laws for organizing and disciplining the militia are valid except as they may conflict with national legislation;4 and the States may constitutionally provide for punishing the counterfeiting of coin and the passing of counterfeit money, since

6

these provisions. They have been much discussed in Congress within a few years. but in a party, rather than a judicial spirit. See Story on Const. 4th ed. c. 41 and notes.

1 McCulloch v. Maryland, 4 Wheat. 316, 427; Weston v. Charleston, 2 Pet. 449. See cases collected, post, p. 482.

* Martin v. Hunter's Lessee, 1 Wheat. 334;

4 Wall. 411; The Ad Hine v. Trevor, ib. 555.

the Western Jurist, Vol. I. p. 241.

The Moses Taylor v. Hammons,

And see note to these cases in

3 Sturgis v. Crowninshield, 4 Wheat. 122; McMillan v. McNeill, ib. 209. And see post, pp. 293–94.

Houston v. Moore, 5 Wheat. 1, 51.

Harlan v. People, 1 Doug. Mich. 207.

Fox v. Ohio, 5 How. 410; United States v. Marigold, 9 How. 560. And

see Hendrick's Case, 5 Leigh, 707; Jett v. Commonwealth, 18 Grat. 933; Moore

these acts are offences against the State, notwithstanding they may be offences against the nation also.

[*19]

*The tenth amendment to the Constitution provides that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. And it is to be observed of this instrument, that being framed for the establishment of a national government, it is a settled rule of construction that the limitations it imposes upon the powers of government are in all cases to be understood as limitations upon the government of the Union only, except where the States are expressly mentioned.1

With other rules for the construction of the national Constitution, we shall have little occasion to deal. They have been the subject of elaborate treatises, judicial opinions, and legislative debates, which are familiar alike to the legal profession and to the public at large. So far as that instrument apportions powers to the national judiciary, it must be understood, for the most part, as simply authorizing Congress to pass the necessary legislation for the exercise of those powers by the federal courts, and not as directly, of its own force, vesting them with that authority. The Constitution does not, of its own force, give to national courts jurisdiction of the several cases which it enumerates, but an act of Congress is essential, first, to create courts, and afterwards to apportion the jurisdiction among them. The exceptions are of those few cases of which the Constitution confers jurisdiction. upon the Supreme Court by name. And although the courts of the United States administer the common law in many cases, they do not derive authority from the common law to take cognizance of and punish offences against the government. Offences against

1 Barron v. Baltimore, 7 Pet. 243; Livingston's Lessee v. Moore, 7 Pet. 551; Fox v. Ohio, 5 How. 432; Smith v. Maryland, 18 How. 71; Buonaparte v. Camden & Amboy R.R. Co., Baldw. 220; James v. Commonwealth, 12 S. & R. 221; Barker v. People, 3 Cow. 686; Colt v. Eves, 12 Conn. 243; Jane v. Commonwealth, 3 Met. (Ky.) 18; Lincoln v. Smith, 27 Vt. 336; Matter of Smith, 10 Wend. 449; State v. Barnett, 3 Kansas, 250; Reed v. Rice, 2 J. J. Marsh. 45; North. Mo. R.R. Co. v. Maguire, 49 Mo. 490; Purvear v. Commonwealth, 5 Wall. 475; Twitchell v. Commonwealth, 7 Wall. 321. For instance, though the right of trial by jury is preserved by the Constitution of the United States, the States may, nevertheless, if they choose, provide for the trial of all offences against the States, as well as the trial of civil cases in the State courts, without the intervention of a jury.

the nation are defined and their punishment prescribed by acts of Congress.1

' Demurrer to an indictment for a libel upon the President and Congress. By the court: "The only question which this case presents is, whether the circuit courts can exercise a common-law jurisdiction in criminal cases. . . . The general acquiescence of legal men shows the prevalence of opinion in favor of the negative of the proposition. The course of reasoning which leads to this conclusion is simple, obvious, and admits of but little illustration. The powers of the general government are made up of concessions from the several States; whatever is not expressly given to the former, the latter expressly reserve. The judicial power of the United States is a constitutional part of these concessions: that power is to be exercised by courts organized for the purpose, and brought into existence by an effort of the legislative power of the Union. Of all the courts which the United States may, under their general powers, constitute, one only, the Supreme Court, possesses jurisdiction derived immediately from the Constitution, and of which the legislative power cannot deprive it. All other courts, created by the general government, possess no jurisdiction but what is given them by the power that created them, and can be vested with none but what the power ceded to the general government will authorize them to confer. It is not necessary to inquire whether the general government, in any and what extent, possesses the power of conferring on its courts a jurisdiction in cases similar to the present; it is enough that such jurisdiction has not been conferred by any legislative act, if it does not result to those courts as a consequence of their creation." United States v. Hudson, 7 Cranch, 32. See United States v. Coolidge, 1 Wheat. 415. "It is clear there can be no common law of the United States. The federal government is composed of twenty-four sovereign and independent States, each of which may have its local usages, customs, and common law. There is no principle which pervades the Union, and has the authority of law, that is not embodied in the Constitution or laws of the Union. The common law could be made a part of our federal system only by legislative adoption." Per McLean, J., in Wheaton v. Peters, 8 Pet. 658. See also Kendall v. United States, 12 Pet. 524; Lorman v. Clarke, 2 McLean, 568; U. S. v. Lancaster, ib. 433; U. S. v. New Bedford Bridge, 1 Wood. & M. 435; U. S. v. Wilson, 3 Blatch. 435. As to the adoption of the common law by the States, see Van Nest v. Pacard, 2 Pet. 144, per Story, J.; post, p. 23, and cases cited in

notes.

[ 23 ]

[* 21]

* CHAPTER III.

THE FORMATION AND AMENDMENT OF STATE CONSTITUTIONS.

THE Constitution of the United States assumes the existence of thirteen distinct State governments, over whose people its authority was to be extended if ratified by conventions chosen for the purpose. Each of these States was then exercising the powers of government under some form of written constitution, and that instrument would remain unaffected by the adoption of the national Constitution, except in those particulars in which the two would come in conflict; and as to those, the latter would modify and control the former. But besides this fundamental law, every State had also a body of laws, prescribing the rights, duties, and obligations of persons within its jurisdiction, and establishing those minute rules for the various relations of life which cannot be properly incorporated in a constitution, but must be left to the regulation of the ordinary law-making power.

By far the larger and more valuable portion of that body of laws consisted of the common law of England, which had been transplanted in the American wilderness, and which the colonists, now become an independent nation, had found a shelter of protection during all the long contest with the mother country, brought at last to so fortunate a conclusion.

The common law of England consisted of those maxims of freedom, order, enterprise, and thrift which had prevailed in the conduct of public affairs, the management of private business, the regulation of the domestic institutions, and the acquisition, control, and transfer of property from time immemorial. It was the outgrowth of the habits of thought and action of the people, and was modified gradually and insensibly from time to time as those

1 State v. Cape Girardeau, &c. R.R. Co., 48 Mo. 468; Mayor, &c. of Mobile v. Dargan, 45 Ala. 310.