hibition, but found no seconder. But in the amendments which were proposed by Congress at its first session, almost as conditions on which many of the States had adopted it and which were quickly ratified, other restraints were laid upon Congress which had the like effect. It was expressly declared that no person shall be deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation, and Congress is bound by these prohibitions. No matter what the emergency, it cannot violate these fundamental principles of personal rights. The court has held that the United States cannot, any more than a State, interfere with private rights except for legitimate governmental purposes, that they are as much bound by their contracts as are individuals, that if they repudiate their obligations it is as much repudiation, with all the wrong and reproach that term implies, as it would be if the repudiator had been a State, a municipality or a citizen. But strict and earnest as the court has been in enforcing its constitutional prohibition against laws impairing the obligation of contracts, it has been ready to recognize and give full force and effect to the statutes of other nations which imposed no such prohibition on the law-making power.

The Canada Southern Railway Company, under its charter granted by the Dominion of Canada, had issued its bonds at a high rate of interest, and had sold them in New York to citizens of the United States, but getting into difficulties the company devised a scheme of arrangement, which was enacted by the Dominion Parliament, by which the interest on the bonds outstanding was scaled down to a lower rate without the consent of the bondholders, a clear case of impairing the obligation of a contract. The bondholders appealed to the Supreme Court, which held that the "Arrangement Act" was valid in Canada, and bound non-assenting bondholders there by force of the scheme; that as it did have that effect in Canada, the courts of the United States should give it the same effect, even as against citizens of the United States whose rights accrued in the United States before its passage; that there was no constitutional prohibition in Canada against the passing of laws impairing the obligation of contracts, and that, under these circumstances, the true spirit of international comity required that schemes of this character, legalized at home, should be recognized in other countries.

The clause of the Constitution giving Congress the power to regulate commerce with foreign nations and between the States, has been another fruitful source of business in the Supreme Court in the way of testing the validity of State laws. At the outset of steam navigation, the State of New York undertook to reward Robert Fulton for his invention and enterprise by an act giving him the monopoly of navigating by fire or steam all the waters within the jurisdiction of the State. Under this act the assignee of Fulton had commenced running a line of boats between certain ports of New Jersey and New York, and obtained from the State courts of New York an injunction to restrain the owners of an opposition

line of boats, put on between the same ports, from entering the waters of New York State with their boats. But the Supreme Court held, upon appeal, that the New York enactment was in conflict with the power of Congress to regulate commerce, and with its acts in relation to commerce, and upon this ground vacated the injunction and established the right of all vessels to enter the port of New York under the authority of Congress. It was held that by virtue of the constitutional clause referred to, Congress had exclusive authority to regulate commerce in all its forms in all the navigable waters of the United States, their bays, rivers and harbors, and to make navigation free to all without and restraint or interference from any State legislature. By a long series of decisions that followed under the commerce clause the court, with inflexible firmness and farreaching sagacity, established the absolute supremacy of the nation over the whole subject of commerce, navigation, travel and intercourse between the States, which went far to strengthen the power of the Union. At the same time they secured to the citizens of every State the full enjoyment of the privileges and immunities of citizens in all the other States, and also that absolute freedom of internal trade throughout the country which has so vastly promoted the prosperity of the people.

The influence of the court in maintaining the faith of treaties has been powerful and far reaching. By the treaty of peace with Great Britain, in 1783, it was agreed that British creditors should "meet with no lawful impediments" in the collection of their claims; and the Constitution said that treaties, like laws, made under its authority, should be the supreme law of the land. Various attempts had been made by several States, before the adoption of the Constitution, to impede or prevent the collection of such claims. The subject provoked bitter and exciting controversies, but the court, against the contention of John Marshall himself, then at the bar, held that the treaty was supreme, and equal in its effect to the Constitution itself, in overruling all State laws upon the subject, and that its words were as strong as the wit of man could devise to override all obstacles directed against the recovery of such debts. Of course, any such law passed by a State after the treaty contrary to its terms would be void.

Perhaps the most striking illustration of the power of the court to declare acts of Congress itself invalid, as contrary to the Constitution, was the celebrated Income Tax (q.v.) case. Congress in 1894 had passed a General Revenue Law, certain sections of which imposed an income tax upon all incomes exceeding a certain amount named. This tax was levied indiscriminately upon all incomes alike, from whatever source derived, whether from the rents of real estate, the income of invested personal property or from earnings. But the Constitution had ordained that direct taxes should be apportioned among the several States according to the numbers of their respective populations, in contradistinction to duties, imposts and excises, which should be uniform throughout the United States. It was contended by those who challenged the validity of the law, that taxes on rent, and taxes or

opened to them the entire field of law and -equity; have extended their adjudications to the whole body of jurisprudence, and have given to the decisions of the Supreme Court, by reason of the weight and force of character of the court and its members, a commanding authority with the State courts, and persuasive influence with foreign tribunals. But in this department of its functions the Supreme Court does not differ, in the scope of its powers and duties, from the courts of last resort of other nations, and its distinctive and peculiar character is not involved. The power of the court to declare State and Federal statutes, and the acts of the National and State executive officers invalid, as being in violation of the Constitution of the United States, naturally attracts the attention of foreign observers.

In the 130 years of its existence the court has pronounced 33 acts of Congress, and more than 225 State statutes, to be in conflict with the Federal Constitution, and therefore invalid, and in each instance there has been complete and peaceful acquiescence in the decision. So that instead of being a disturbing element, the exercise of this power confirms the peaceful relation between the States and the Nation, and beween the States as among themselves, pro¿tects foreign nations from the breach of treaties, and conserves the rights of property and constract, and the fundamental rights of personal liberty. The Constitution provides that "no State shall pass any law impairing the obligation of contracts," and the aid of the court has often been invoked for protection against the attempts of States to violate this prohibition. The framers of the Constitution believed, and the people of the United States, in view of the successful operation of this prohibition for more than a century, believe that the States ought not to be permitted to intervene between the parties to a contract, to destroy or impair the binding force of terms by which they have agreed to be bound, and that such intervention is contrary to the principles of popular government. It is true that in the days that tried men's -souls before the adoption of the Federal Constitution many attempts had been made by States to intervene for this purpose, which - doubtless led to the adoption of this clause.

Mr. Hamilton, in the Federalist classing such laws with bills of attainder and ex post facto laws, which are prohibited by the same clause, says:

IS "Laws impairing the obligation of contracts are contrary to the first principles of the social compact, and to every Lorinciple of sound legislation. They are prohibited by the spirit and scope of the State constitutions. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted.

Very prop

erly, therefore, have the Convention added this constitutional bulwark in favor of personal security and private rights. And I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted nterests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation hat sudden changes and legislative interferences in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more Industrious and less informed part of the community. They have seen, too, that one legislative interference is but the first ink of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform s wanting which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of Society."

In the celebrated Dartmouth College case the protection of this clause was invoked by the trustees of the college, to recover its property from a person who held it for new trustees under the authority of a law of the State of New Hampshire. In 1769, King George III by royal charter incorporated 12 persons, therein named as "The Trustees of Dartmouth College," granting to them and their successors the usual corporate privileges and powers, and authorizing the trustees who were to govern the college to fill up all vacancies which may be created in their own body. The application by the founder, who had already established the college, was for a charter to incorporate a religious and literary institution, and stated that large contributions had been made for the object, which would be conferred upon the corporation as soon as it was created, and on the faith of the charter the property was conveyed to it. After the Revolution (in 1816), the legislature of New Hampshire passed an act increasing the number of trustees to 21, giving the appointment of the additional members to the governor of the State, and creating a board of overseers with power to inspect and control the most important acts of the trustees. Admitting that the provision of the Constitution embraced only contracts which respect property or some object of value, and which confer rights which may be asserted in a court of justice, and did not refer to grants of political power or to acts creating institutions to be employed in the administration of government or of public property, or in which the State as a government was alone interested, the court after most mature consideration reached the conclusion, that the charter was a contract which secured to the trustees the property and control of the college a contract made upon valuable consideration for the security and disposition of property, and on the faith of which real and personal property had been conveyed to the institution, and, therefore, a contract, the obligation of which could be impaired without a violation of the Constitution of the United States. It held that the statute of New Hampshire did impair it, and was, therefore, void, and rendered judgment restoring the property and control of the college to the trustees who represented the founder. The opinions of Chief Justice Marshall and Judge Story are masterpieces of judicial reasoning, and the principles laid down by them have ever since prevailed. In 56 cases decided by the court, acts of State legislatures have been declared invalid in accordance with these principles, because they impaired the obligation of contracts, and it is not too much to say that, instead of having a disturbing or disintegrating effect upon civil society, these decisions have done more than any other single cause to inculcate a reverence for the law, and for the sanctity of the right of private property, which is one of the chief objects of free government.

It is true that the constitutional prohibition against laws impairing the obligation of contracts does not expressly apply to Congress. In the convention, Mr. Gerry, a prominent delegate from Massachusetts, made a motion that Congress ought to be laid under the like pro

hibition, but found no seconder. But in the amendments which were proposed by Congress at its first session, almost as conditions on which many of the States had adopted it and which were quickly ratified, other restraints were laid upon Congress which had the like effect. It was expressly declared that no person shall be deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation, and Congress is bound by these prohibitions. No matter what the emergency, it cannot violate these fundamental principles of personal rights. The court has held that the United States cannot, any more than a State, interfere with private rights except for legitimate governmental purposes, that they are as much bound by their contracts as are individuals, that if they repudiate their obligations it is as much_repudiation, with all the wrong and reproach that term implies, as it would be if the repudiator had been a State, a municipality or a citizen. But strict and earnest as the court has been in enforcing its constitutional prohibition against laws impairing the obligation of contracts, it has been ready to recognize and give full force and effect to the statutes of other nations which imposed no such prohibition on the law-making power.

The Canada Southern Railway Company, under its charter granted by the Dominion of Canada, had issued its bonds at a high rate of interest, and had sold them in New York to citizens of the United States, but getting into difficulties the company devised a scheme of arrangement, which was enacted by the Dominion Parliament, by which the interest on the bonds outstanding was scaled down to a lower rate without the consent of the bondholders, a clear case of impairing the obligation of a contract. The bondholders appealed to the Supreme Court, which held that the "Arrangement Act" was valid in Canada, and bound non-assenting bondholders there by force of the scheme; that as it did have that effect in Canada, the courts of the United States should give it the same effect, even as against citizens of the United States whose rights accrued in the United States before its passage; that there was no constitutional prohibition in Canada against the passing of laws impairing the obligation of contracts, and that, under these circumstances, the true spirit of international comity required that schemes of this character, legalized at home, should be recognized in other countries.

The clause of the Constitution giving Congress the power to regulate commerce with foreign nations and between the States, has been another fruitful source of business in the Supreme Court in the way of testing the validity of State laws. At the outset of steam navigation, the State of New York undertook to reward Robert Fulton for his invention and enterprise by an act giving him the monopoly of navigating by fire or steam all the waters within the jurisdiction of the State. Under this act the assignee of Fulton had commenced running a line of boats between certain ports of New Jersey and New York, and obtained from the State courts of New York an injunction to restrain the owners of an opposition

line of boats, put on between the same ports. from entering the waters of New York State with their boats. But the Supreme Court held upon appeal, that the New York enactment was in conflict with the power of Congress to regu late commerce, and with its acts in relation to commerce, and upon this ground vacated the injunction and established the right of all vessels to enter the port of New York under the authority of Congress. It was held that by virtue of the constitutional clause referred to Congress had exclusive authority to regulate commerce in all its forms in all the navigabl waters of the United States, their bays, rivers and harbors, and to make navigation free to al without and restraint or interference from ar State legislature. By a long series of dec sions that followed under the commerce clause the court, with inflexible firmness and far reaching sagacity, established the absolute supremacy of the nation over the whole sub ject of commerce, navigation, travel and inter course between the States, which went far t strengthen the power of the Union. At the same time they secured to the citizens of ever State the full enjoyment of the privileges and immunities of citizens in all the other States and also that absolute freedom of internal trad: throughout the country which has so vast promoted the prosperity of the people.

The influence of the court in maintaining the faith of treaties has been powerful and far reaching. By the treaty of peace with Great Britain, in 1783, it was agreed that Britis creditors should "meet with no lawful imped ments" in the collection of their claims; an the Constitution said that treaties, like laws made under its authority, should be the suprem law of the land. Various attempts had bee made by several States, before the adoption c the Constitution, to impede or prevent the col lection of such claims. The subject provoke bitter and exciting controversies, but the court against the contention of John Marshall him self, then at the bar, held that the treaty wa supreme, and equal in its effect to the Constit tion itself, in overruling all State laws upc the subject, and that its words were as strong as the wit of man could devise to override a obstacles directed against the recovery of suc debts. Of course, any such law passed by a State after the treaty contrary to its term would be void.

Perhaps the most striking illustration of the power of the court to declare acts of Cor gress itself invalid, as contrary to the Consti tution, was the celebrated Income Tax (q.v.) case. Congress in 1894 had passed a Genera Revenue Law, certain sections of which im posed an income tax upon all incomes exceeding a certain amount named. This tax was levied indiscriminately upon all incomes alik from whatever source derived, whether from the rents of real estate, the income of invested personal property or from earnings. But the Constitution had ordained that direct taxe should be apportioned among the several State according to the numbers of their respective populations, in contradistinction to duties, im posts and excises, which should be uniform throughout the United States. It was COL tended by those who challenged the validit of the law, that taxes on rent, and taxes of

the income derived from invested personal property, were direct taxes within the meaning of the Constitution, and that instead of being levied uniformly, man for man, throughout the United States, they should have been apportioned among the several States according to population. The difference was very considerable and substantial. The effect of the act, if sustained, would be to throw the principal burden of the tax upon a few large States, in which the relative proportion of wealth was in excess of the relative proportion of population, and to exempt the other States proportionally from their constitutional share of the tax. The opponents of the income tax also insisted that any inequality, which should arise from its being apportioned among the States according to population, was an inequality contemplated by the framers of the Constitution, and was intended to prevent an attack upon accumulated property by mere force of numbers. The court, against vehement and powerful opposition at the bar, and from a formidable minority of the members of the court itself, took this view, and declared the tax to have been laid unconstitutionally, so far as it affected incomes from rents and from invested personal property. And as the invalid portions constituted SO large a proportion of the whole income tax levied by the act, that Congress could not be deemed to have intended to impose the rest without them, it further adjudged that all the income tax provisions of the act, which constituted a single and entire scheme, must be held void. There were some popular protests against the decision, and direful prophecies that it would disable the nation in future emergencies from raising the revenue it needed, but no such results have yet appeared. Congress, in its subsequent enactments, has conformed to the decision, and when the war with Spain came on, and an immensely enlarged revenue was needed at once, it found no difficulty in imposing taxes constitutionally and so successfully that, the year after the war closed, the Treasury was found to be burdened with so great a surplus that the entire body of war taxes had to be repealed at once. The same case contains a fine illustration of the power of the court to protect the States in the exercise of their legitimate power to manage their own affairs from interference by the Federal government. The income tax was levied also upon income derived from the interest upon bonds issued by municipal corporations, which were but civil divisions of the States, and the court held that as a tax upon the income of municipal bonds tended to cripple the power of the local authorities to raise money for the purposes of local government, it was not within the power of the Federal government to impose it, any more than it would be constitutional for the States to impair the power of the Federal government to raise money for Federal purposes by taxing its bonds.

By the adoption of the 14th Amendment (q.v.), to meet the conditions resulting from the abolition of slavery at the close of the Civil War, new restraints were imposed upon the States, the consideration of which has largely Occupied the attention of the Supreme Court. It provides that "No State shall make or en

force any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Doubtless this amendment was primarily intended for the protection of the newly emancipated slaves, especially in the States where they had so long been held in bondage, but in its language there is no distinction of race or color, and the court held that it could make no such distinction in its application, which must be made alike to all cases and subjects that came within the scope of its language in its natural meaning.

On

It must not be thought, however, from these numerous restraints imposed by the Constitution upon the power of the States, and the very considerable number of cases (exceeding 200 in all) in which the Supreme Court has pronounced their statutes invalid, that the court is biased against the States or inclined unduly to enforce the limits imposed upon them. the contrary, it has been quite as jealous and careful to uphold and maintain the reserved rights of the States in all matters of local and domestic concern, and to protect them from violation by the Federal government, as it has been to maintain the exclusive province of Congress in national concerns against intrusion by the State legislatures. It has endeavored, with success, to maintain the just and exact balance of power between them as prescribed by the Constitution. As against the 225 cases in which State laws have been invalidated by its judgments, vastly more numerous cases will be found, in its reports, in which State laws have been maintained by it against attack on the ground that they involved a violation of the Federal restraints. If, then, it be asked - why has it only pronounced about 35 acts of Congress invalid on constitutional grounds; while 225 State laws have been condemned? the answer is that there are 48 States and only one Congress, and that the members and committees of Congress are much more familiar with the Federal Constitution than those of a State legislature, who naturally look first to that of their own State. It is notable, too, that the legislators of some States must be much more studious of the Federal Constitution than others, for while Louisiana, which became a State in 1812 and from its French origin has retained the civil law instead of the common law, has had 20 of its laws pronounced invalid for violation of the Constitution, Massachusetts, one of the original 13 States, has only suffered twice in this way in her whole history.

Congress is, of course, in the first instance the judge of the constitutionality of its own acts, and its members, being mostly lawyers, are familiar with the letter and spirit of the Constitution. The cardinal and wholesome rule of the court has been, not to pronounce either a State or Federal law invalid on constitutional grounds unless the violation is clearly established, that the presumption is in favor of the validity of a statute, and that this continues until the contrary is shown beyond a rational doubt. The Supreme Court has felt that one branch of the government cannot encroach on

the domain of the other without danger, and that the safety of our institutions depends in no small degree on a strict observance of this salutary rule. It speaks volumes for the wisdom and caution of the court which is vested with this remarkable and fascinating power, that in so great a mass of State legislation, some of it crude and undigested, consisting of thousands of volumes, it has not found it necessary to exercise the power much more frequently. It has been a source of frequent wonder to foreign observers that a written Constitution, which was framed in the 18th century for 13 feeble States, with 3,000,000 of people of substantially uniform wealth or poverty, scattered along the Atlantic seaboard, and for whose government it was regarded as a precarious experiment, should be found to answer as well in the 20th century for the needs of a great nation of 80,000,000 in 48 States, occupying the breadth of the continent, with gigantic accumulations of individual and corporate property, with conflicting interests and sentiments, and wide differences of social condition. There was much debate in the discussions which resulted in the adoption of the Constitution, whether the government which it called into being could reach and control even a people that was expected to occupy the territory which the Treaty of Peace of 1783 secured to the United States, which extended only from the Atlantic to the Mississippi River, and from the lakes to the northern boundary of Florida. Since that time our territory has expanded more than four times, and now embraces insular possessions of vast extent, at enormous distance from the seat of government and half way round the globe.

The fundamental difficulties of time and space have been overcome by the triumphs of steam and electricity, wholly unforeseen and unexpected in 1787. but which now, in the case of the United States and Great Britain alike, have rendered possible the administration of government from London or from Washington on any portion of the earth's surface. At the time of the adoption of our Constitution it took about as long to travel the length or breadth of the then United States as it does now to go from New York to Manila, or from London to Peking, and orders of either government which then would have taken months to transmit, now reach their destination so as to be put in execution at the other end of the world in a few hours, and sometimes in a few minutes. But in our case, we can account for the fact that a written Constitution, instead of being torn asunder and left by the way as the nation expanded, as new and wholly unexpected conditions arose, has grown with the growth of the nation, like the hide of an animal from its birth to its maturity, so that it still embraces and covers the whole of our vast national life. We owe it, first, to the wisdom of its framers, who inserted in it only fundamental rules and principles, generally and briefly expressed, leaving it always to Congress to fill in and provide for all details; and secondly, to the vigorous and masterly manner in which the Supreme Court has exercised its essential and lawful function of construction. By this it has applied the whole instrument and each of its parts to new conditions as they arose, and has developed and strongly asserted the inherent

powers of sovereignty intended to be vested in the government of the United States, and necessarily resulting from their existence as a nation. It was our happy fortune that for 34 years, in that critical period of our history which was to determine whether we were to be a great and powerful nation, adequate for all the needs of a first-class power in the world, or only a league of States like the old Confederation, we had the benefit of the broad and robust intellect of Chief Justice Marshall, to enforce the liberal principles of construction which the genius of Hamilton had laid down.

In a single paragraph he states the whole theory upon which the court has administered the Constitution, and fitted it to the growing wants and changing conditions of the nation:

But

"The Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it is now universally admitted. the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise, as long as our system shall exist. The powers of the government are limited, and its powers are not to be transcended. But the sound construction of the Constitution must allow to the National Legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in a manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, and which are not prohibited, but are consistent with the letter and spirit of the Constitution, are constitutional."

Hamilton, in the Federalist, declared that "the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks." Montesquieu, whose works, with Blackstone's, were the textbooks of constitutional liberty which the framers had constantly in hand, declared that "the judicial power is next to nothing. And it was said by another French publicist, "It has no guards, palaces or treasures, no arms but truth and wisdom, and no splendor but the justice and publicity of its judgments." But the Supreme Court, sustained generally by the confidence and affection of the people, has more than held its own. Keeping carefully within its own limits, it has for the most part labored to keep the other departments of government within theirs, and the powers of the States and of the nation from coming into conflict. In its hands the judicial power has been the force of gravitation which has kept each member of our Federal system in its proper orbit, and maintained the essential harmony of the whole.

The closing scene in the Federal Convention, which made the court in a way the guardian of the Constitution, will be ever memorable. After months of discussion, sometimes: violent, more than once approaching the very brink of dissolution, in hopeless despair of coming to any agreement, at last the grand triumph of compromise and mutual concession was accomplished, and the members met to affix their names to the instrument. Hamilton, one of the youngest, acted as scribe, and after Washing-" ton had signed first as "President and Deputy! from Virginia," inscribed on the great sheet of parchment the name of each State, as the delegates came forward in geographical order to add their names. When all had signed, Frank