An introduction to the constitutional law of the United States : especially designed for students, general and professional

Front matter

CdRNELl.;^UNIVERSITY LIBRARY.

This book is not to be taken

mg Room. w> from the R<

Preface To The Third Edition

In preparing the work of which the third edition is now ofEered to the public, the principal purpose of the author was fco furnish for general readers, for colleges, law schools, and other higher seminaries, and for the legal profession, a book adapted to their present wants and based upon the principles of constitutional interpretation which have been settled by the civil war and by the political events that followed it. Although, as the name indicates, it is an Introduction and does not purport to be an absolutely exhaustive treatise, yet all the purely constitutional questions which have at any time been passed upon by the highest national tribunal, are discussed and the results thereof are stated. In respect to some of these topics, where there has been a conflict of opinion between the federal and the state courts, or where the relative powers of the national and state governments have been somewhat undefined and uncertain, the treatment has been designedly made more full and minute. Among the more important of these topics are the powers of taxing and of regulating commerce, the military powers, the executive powers, the rights of citizenship, and state laws impairing the obligation of contracts. The work is thus intended for use as a text-book by the courts and the bar.

In determining the principles which underlie all others, in reference to the nature of the United States as a body politic and of its Constitution, an attempt has been made to construct a harmonious system of interpretation founded, not upon theoretical and a priori speculations, but upon historical facts, which shall at the same time recognize and uphold the nationality and absolute sovereignty of the United States and the supremacy of its government, and . also maintain the essential exist-

U PREFACE TO THE THIRD EDITION.

ence and rights of the several states as necessary elements of the political order established by the one People in the Constitution which they adopted. While, therefore, the whole civil structure, federal and state, is made to rest upon the nationality and sovereignty of the United States, the construction that is advocated guards with equal care against any tendencies towards an undue centralization of power, and upholds the sacred principle of local self-government as the very groundwork of all civil and political liberty. ,

The text of the present edition has been carefully revised and corrected ; and whatever errors of fact or inaccuracies of statement had been discovered have been removed. An Appendix has also been added, which contains an abstract of all the decisions involving an interpretation of the Constitution, rendered by the Supreme Court of the United States since the publication of the first edition. The Public Law of the land authoritatively declared by the highest tribunal, is thus presented as it stands at the present day. The subject matter of this Appendix is arranged in an order conforming to that pursued in the body of the work, with appropriate subdivisions and headings, so that it can be easily referred to in connection with the discussions found in the original text. The additions thus made embrace many subjects of the highest theoretical and practical importance ; among others, the nature of the Federal Union and its relations with the States, the status of citizenship with the rights and immunities of citizens, the interpretation of the Xlllth, XlVth, and XV th amendments, the regulation of inter-state commerce, the extent and limits of the national and the state powers of taxation, — and the questions thus raised and determined, equal in magnitude and in their far-reaching effect any that were ever before passed upon by the national court of ultimate resort.

J. N. P.

August, 1875.

Table Of Contents

mTRODUCTORT CHAPTER.

BGOnOH

Law divided into Public, and Private 1

Part First

WHAT IS THE CONSTITUTION, AND BY WHOM WAS IT CREATED : THE ESSENTIAL NATURE OP THE ORGANIC LAW, AND OP THE BODY POLITIC WHICH LIBS BEHIND IT.

CHAPTER L

STATEMENT OF THEORIES ; KATIONALITT OP THE UKITBD STATES.

mportance of this subject 25, 26

SECTION I.— THEORIES WHICH HATE BEEN PROPOSED AND ADVOCATED. Three theories proposed 27

L The complete National Theory 28, 29

n. " " State Sovereignty Theory . . .30, 31 m. » partial National Theory 32-34

IV

TABLE OF CONTENTS.

SECTION n. — MEANINa OV "NATION," AND OV POLITICAL SOVEREIGNTY.

SEOnOM

Course of investigation to be pursued 35

" Nation " and " Sovereignty " imply each other .... 36

Distinction between "Nation" and "Government" . . . 37-39

Definition of " Nation " and "Sovereignty" 40-42

SECTION m.— THE PRINCIPAL PROPOSITION IN REGARD TO THE NATURE OT THE CONSTITUTION, AND THE NATIONALITY OE THE UNITED STATES.

The United States is a nation and is sovereign .... 42

The separate states are not nations and not sovereign ... 48 Case of a revolution not included ...<... 44

CHAPTER n.

HISTOEICAL SKETCH OF THE POLITICAL MOVEMENTS WHICH TERMINATED IK THE ADOPTION OP THE CONSTITUTION.

SECTION L— PERIOD PRIOR TO THE CONFEDERATION,

Importance of this inquiry

The nation does not date from the present Constitution

Condition of the colonies prior to 'the revolt

Nature of the revolt . . '

" " " first Continental Congress

Declaration of Independence, its authors, and its effects When the nation began .......

Sovereign states cannot limit their sovereignty ' . Opinion of modern publicists in reference to last proposition

45 46 47 48 49 50

50-53 54

SECTION II. — PERIOD 01' THE CONPEDERATION Idea of nationality not formally adopted

Effect of local and state influences ..... Adoption of Articles of Confederation ..... General description of these articles, and of the movements which

led to them

Abstract of Articles of Confederation

Articles of Confederation not a fundamental law Controlling ideas embodied in them .....

I. No United States Citizenship ....

Formative elements were states

II. Articles acted upon States and not Individuals

III. Government had no power to compel obedience Congress was the sole department of the government .

IV. Limited extent of the powers granted to the Congress Consequences of this form of government ....

57 5« 59

60-63

64,65

67,-73

6tf

72, 73

TABLE OF CONTENTS. V

SECTION nr.— PEOCEEDINGS WHICH DTEECTLT LED TO THE ADOPTION Or THE

OONSTITUTION.

SECTION

A remedy necessary ; an amendment to the Articles of Confederar

tion contemplated 76

First Convention in 1786 77

Call of Convention by Congress, to amend Articles of Confederation 78 Meeting of Convention in 1787 ; did not do vrhat they were called

to do '9

Convention of a body of volunteers .... 80

Their final action 81

Meaning of these proceedings ; nature of the acts of the state governments in submitting the Constitution to the people . 82 Contest in relation to adoption of the Constitution ... 83 Ratification of the Constitution 84

CHAPTER m.

THB NATIONAL ATTRIBUTES INVOLVED IN THE PROVISIONS OF THE CONSTITUTION. SECTION I.— DISTINCTION BETWEEN THE GOVERNMENT AND THB NATION.

The people, as a collective unit, are the nation, as distinct from the

The theory of the government is involved in this proposition . 8 7

Illustrations from French and from English history ... 88

Various powers held by a government ; the people may wield all

The government may wield all power held by the people ; examples, England 90

The government may wield part of the power held by the people ;

examples. United States 91

BECTION n. — THE IMPORTANT AND DISTINCTIVB NATIONAL ELEMENTS IN THB CONSTITUTION ITSELF; IN THB ATTRIBUTES AND FUNCTIONS OE THB GOV- ERNMENT.

1. The Preamble.

Language of the Preamble 93

National character of the Preamble 94

Preamble of the Confederate Constitution, compared ... 95

2. The Enacting Clauses.

The powers of the agent cannot exceed those of the principal . 96,97 I. The Declaration of Supremacy (Art. VI. § 2) . . 98- 101 The supremacy belongs to judge-made as well as to enacted law . 99 interpretation of the IXth and Xth amendments . . 100,101

Powers are granted by the people to the States .... 101

II. The Status of Citizenship 10?

in. The Proprietorship of Public Lands . . . .103 n TABLE OF CONTENTS.

raoroi IV. Nature of the Legislative Powers held by the General

Government and forbidden to the States . . . 104-106

V. Nature of the Executive Powers ....

VI " " Judicial Powers ....

VII. The Power of Amendment

Language of the Constitution (Article V.) ....

This language unlimited

State sovereignty theory as applied to the power of amendment The people created, and may amend .....

Significance of the forms to be pursued .... Legality of the amendment abolishing slavery Conclusion

. 107

109-115

. 112

113-115

116-118

119,120

Part Second

IN WHAT MANNER AND BY WHOM IS THE CONSTITUTION TO BE AUTHORITATIVELY CONSTRUED AND INTERPRETED ; OR THE MEANS AND COMBINATIONS FOR ASSURING THE OBSERVANCE OF THE FUNDAMENTAL LAW.

Constitutional law includes this subject 121

Necessity for a sanction to constitutional law; kinds of sanction . 122

To apply a sanction, Constitution must be interpreted . . .123 Questions, in whom does the power of interpretation reside . 1 24

I. It resides in the general government and not in the states 125-133 The political society which created must interpret . . . .125

The people are the final interpreters 126

The government, as agents of the people, are the proximate interpreters 127

General assent to this position 128

Exceptional dissents 129-132

Political dissents ; Virginia and Kentucky resolutions . . . 1 29

Judicial dissents; Worcester u. Georgia 130

" " Ablemann v. Booth 131

Subordinate power of the states to interpret 133

II. The final power to interpret authoritatively resides in the

Supreme Court of the United States . . . 134-148 'Question stated, whether each department may interpret for itself,

or whether the Supreme Court must interpret for all . . 184

General acceptance of latter view 135

Contrary theories ; Jefierson's and Jackson's, considered . . 136 The interdependence of the three departments of government . 137 Consequences of conceding the power to each department to interpret authoritatively 138-140

TABLE OF CONTENTS. vii

tamoM A Bingle arbiter necessary ; nature of the Constitution as a fundamental statute requiring a judicial interpretation . . . 141 Function of the judiciary to interpret statutes, conceded . . . 142 English courts do not have the power, because there is no written

constitution binding on the government .... 143 Provisions of the Constitution which support these conclusions . 144, 145 Objections to the power considered ; that the court is not progressive 146

Objections that this power would make the court the supreme lawgiver 147

Judicial decisions; Van Home's Lessee v. Dorrance ; Martin v.

Hunter's Lessee; Cohens u. Virginia ; Ablemann u. Booth . 148 Sanctions to enforce the Constitution ; impeachments ; criminal prosecutions 149

Sanctions pronouncing a statute or official act null . . . .150

Part Third

WHAT POWERS AND CAPACITIES ARE CONFERRED OR IMPOSED UPON THE NATIONAL GOVERNMENT, AND WHAT ARE CONFERRED OR MPOSED UPON THE SEVERAL STATES.

CHAPTEE L

IHE LEADING IDEAS OP CIVIL POLITr WHICH ENTER INTO THE OKGANIZATIOK OP THE UNITED STATES.

Divisions of the subject 151

Eights of the states 152

Powers of states are derived from the nation 153

National affairs committed to the general government ; local affairs

to the states 154

Ideas of centralization and local self-government, fundamental 155-164

Necessity and power of each idea 155-157

I*rinciple of local self-government, how applied . . . 158,159 Historical origin of principle of local self-government . . .159-164

CHAPTEE n.

EXTERNAL POBM AND ORGANIZATION OP THE GOVERNMENT.

Jbjects of this chapter 165 na TABLE OF CONTENTS.

SECTTON I.— THE SEPARATION OP THE GOVERNMENT INTO THREE CO-OEDINATB

DEPARTMENTS.

SECTION

Division into legislative, executive, and judicial departments . . 166

Same division in England . 167

Organization in other countries 168

This arrangement favorable to freedom 169

Reasons for this result; tendency of power to increase- . .170,171

Separation of functions not complete ... ... 1 73

NPresident's legislative power ; his veto 174-177

His legislative function inferior . . . . . . . . 1 75

Legislative power of the British Crown ; more theoretical than real 176

President's legislative power more substantial 177

President need not assent to proposed amendments . . . .178 His power to make treaties . . . . . . . . 1 79

Other instances of interchange of functions 180,181

Tendency of one department to encroach upon the others . . 182 The legislature the most powerful ...... 183-187

Example of British Parliament . . . . . . . 1 84

Congress has greater inclination to amplify its powers . . . .185

Effect of Congress acquiring all governmental power . . 186, 187

SECTION n. — THE SEPARATION OE THE liBGISLATUEE INTO TWO CO-ORDINATE

BRANCHES.

Senate and House of Representatives ; constitutional provisions . . 1 88

Example of British Parliament . 189

Organization and nature of the Senate ; principle of local self-government 190

Organization and nature of the House ; principle of centralization . 191

Number of members of House determined by population of the states . 192

Population how reckoned ; constitutional provision . . . 193

Advantages resulting to Southern states 194

Increase of this advantage from abolishing slavery .... 195

Remedies proposed , . . . . 1 96

SECTION in. —METHOD OE CHOOSING OFFICIAL PERSONS.

General features ; fewness of popular elections provided for . . 197

President and Vice-President, how chosen 198-203

How electors appointed ... 199

Original design of these methods ... . . 200-202

Change in this design 208

The Senate, how chosen . . 204

The House of Representatives, how chosen . . 205-215

TABLE OF CONTENTS. a

izcnoii

Constitutional provisions . . 20S

Powers of states to determine qualifications of electors . . 206-20D

Power of Congress to guarantee a republican form of government ;

its meaning and extent 210

The United States should control the qualifications of Congressional

electors 2U

Proposed XI Vth amendment, considered 212

This amendment opposed to ideas of local self-government . . .213 Another amendment suggested giving Congress the control of this

subject 214, 215

Other officers . 216

BECTION IV. — SOME RULES RESPECTING THE QUALITICATIONS OF OFFICEBS, AND THE ORGANIZATION OF THE HOUSES OF CONGRESS, AND THE CONDUCT OF BUSINESS THEREBY.

Qualifications in respect to age, citizenship, and inhabitancy; terms

of office 217

Rules relating to the organization of Congress, and of each House . 218 Each House a judge of the election of its members . . . .219

Rules of order 220

The journal ; demand for the yeas and nays 221

Revenue bills originate in the House of Representatives . . . 222 Rules applicable to the members individually .... 223, 224

Chapter III. Qenebal Limitatioks Upon The Powers Of The United States Goveknment

Objects of this chapter 225

Government of the United States limited 226

SECTION I. — EXPRESS LIMITATIONS UPON THE WHOLE GOVERNMENT.

Express limitations, some upon the whole government, some upon

one department .......... 227

General statement and nature of these limitations . . . 228-230

The Constitution originally contained few 228

Provisions of first eight amendments 229

These provisions generally found in state constitutions . . 230

To whom are these negative provisions addressed . . . 231-234 They restrain the United States government and not the

Barron v. Mayor of Baltimore 233

Murphy v. The People ; Barker v. The People ; James v. The

Commonwealth 234

This rule an unfortunate one ; citizens may be exposed to state injustice, and not sufficiently protected by the United States government ; illustrations 235, 236

K TABLE OF CONTENTS.

sEonos Proposed XIV th amendment as a remedy . . . .237 The limitations are addressed to all departments and execute

themselves 238

Examination and discussion of these limitations .... 239

1. Right to keep and bear arms ; a militia 239

2. Quartering soldiers upon private citizens .... 240

3. Unreasonable seizures and searches forbidden ; general vrar-

rants 241

4. Course of proceeding in criminal prosecutions regulated . 242 Exception of persons in military service 243

5. No person to be twice put in jeopardy for the same offence . 244

6. " " " " deprived of life, etc., without due process of

Provision in Magna Charta . 245

What is due process of law 246

Porter w. Taylor 247

Wynehammer v. The People ; Murray's Lessee v. Hoboken

Land Co 249

7. Private property not to be taken for public use without com-

pensation . 251-256

Right of eminent domain, its nature .... 251-253 Whether private property may ever be taken for military

purposes, without compensation : Mitchell v. Harmony 254-256 Importance of these restrictive clauses . . . .257

May they ever be disregarded in an internal war . . . 258

SECTION n.— IMPLIED LIMITATIONS.

The United States government one of limited powers . . . 259 Within the scope of its functions it is absolute ; Congress has an unlimited choice of means which conduce to a lawful end . . 260, 261 Examples of the practice of Congress under this rule . . . 262 Examples of the decisions of the Supreme Court asserting this rule : Fisher v. Blight; Martin v. Hunter's Lessee ; McCuUoch v. Maryland ; Gibbons v. Ogden 263-268

Seneral principles established by judicial decision and legislative

practice ^ . . 269

Chapter IV

THE LEGISLATIVE POWERS OP THE CNITED STATES GOVERNMENT. SECTION I.— THE POWEK OF TAXIN&.

Provisions of the Constitution ........ 271

Divisions of the subject .... ... 272

TABLE OF CONTENTS. xi

First. What Powers of Taxation are held hy Congress 1

SEOnOM

L The Purposes for which Taxes may he Laid and Collected.

General purposes ; payment of debts, the common defence,

the general welfare 273, 274

General discretion of Congress as to measures . . . 27£ LI. The Various Kinds of Taxes.

Different kinds of taxes defined 276

Direct and indirect taxes 277

III. The Means and Methods of Enforcing the Taodng Power.

Constitutional provisions ; apportionment and uniformity . . 278

Direct taxes apportioned 279

Indirect taxes uniform ........ 280

What are direct, and what indirect, taxes : Hylton v. United

Tax on articles exported 283

Measures included within the taxing power .... 284

IV. 'Extent of the Taxing Power.

The power unlimited : Providence Bank v. Billings ; McCul-

loch V. Maryland 285-287

Stamp duties on private agreements 288

" " " judicial proceedings .... 289-293

These stamps are taxes on property .... 290, 291

For what purposes may revenue be raised . . . 294, 295

Second. What Powers of Taxation are held ly the Several States ?

I. Implied Limitations upon the Power of the States to Tax.

States have the taxing power ; but it is subordinate ; must be used second to that of the United States ; cannot be exercised upon property or means of the United States . 29 7

Cases illustrating this principle 298-304

Taxing United States Bank : McCulloch v. Maryland ; Osborn

V. Bank of United States 298

" salary of United States officers : Dobbins v. Commissioners 299

" United States securities by name : Weston v. City

Council 1 . 300

" United States securities as a part of tax-payer's general property: Bank of Commerce v. City of New York ; Bank Tax Cases . . . .301,302 « stockholders of national banks : Van Allen v. Assessors ; People v. Commissioners .... 304

General conclusions 305

Effect of United States revenue license : McGuire v. The

Commonwealth . . 306 xii TABLE OF CONTENTS.

BEOnOll

IL Express Limitations upon the Power of the States to Tax.

Constitutional provisions : duties on imports and exports ; inspection laws 307

What are inspection laws 308

Cases illustrating these provisions : Brown v. Marj'land ; License cases ; Passenger cases ; Cooley v. Port Wardens ; Ahny !J. California 309-312

SECTION 11.— THE POWEE TO BOKEOW MONET.

Constitutional provisions ; general discretion of Congress . t 813

Methods of borrowing money which may be used .... 314 Power to charter United States or national banks, as one method :

McCulloch V. Maryland ; Osborn v. Bank of United States . 315 Issuing treasury notes ; power to declare them legal tender : Metropolitan Bank u. Van Dyck 316,317

Power of the states to borrow; forbidden to emit bills of credit 318, 319 What are bills of credit: Craig v. Missouri; Briscoe v. The Bank 820, 321

SECTION III. — THE POWER TO REGULATE COMMERCE. Constitutional provisions . . . . . . . .321a

Reasons for these provisions ; division of the subject . . . 322

First. Nature of the Power.

Whether the power is exclusive in Congress : three theories . 323, 824

What is commerce 325

Power of Congress extends only to foreign and inter-state commerce 326 General objects of this grant of power .... 327, 328

Rules of interpretation : police powers of states : regulations of

commerce 329-331

Gibbons v. Ogden 333-337

Rules established by this case 338

Brown V. Maryland 339-343

Wilson V. Blackbird Creek Co. 344-346

New York v. Miln 847-350

The License cases 351-357

The Passenger cases 358-360

Cooley V. The Port Wardens . 361, 362

Wheeling Bridge case ........ 863-366

Smith V. Maryland 365

Sinnot v. Davenport .•••..... 368

Philadelphia Bridge case 369-872

Power of states to construct bridges 373

TABLE OF CONTENTS. xiu

Second. The Extent of the Power. __ . tEOnos

Wnat IS commerce: commerce among the states: general nature

of the power to regulate 375-378

Congress may pass laws regulating (1) places .... 379

(2) Means and instruments of commerce .... 380-382

Construction of routes for internal traffic 382

(8) The subject-matter of commerce 383

(4) liaws affecting the liability of persons engaged in commerce . 384

SECTION rV. — THE POWER TO MAKE KULES POB NATURALIZATION.

What is naturalization 386

Power to naturalize resides exclusively in Congress . . 387-390

SECTION V. — THE POWER TO ENACT BANKRUPT IiAWS

I. Nature of the Power.

States may exercise it in the absence of Congressional action ; acts

of Congress oust the authority of the states . ... 392

II. Extent of the Power : What Laws may Congress pass.

Meaning of " bankrupt " and " bankruptcy " ... 393-402

Kind of laws which Congress may pass .... 397-402

Reasons in favor of general bankrupt laws .... 403-407

SECTION VI. — THE POWER TO COIN MONEY. Constitutional provisions : their meaning .... 408-410

SECTION Tn. — THE POWER OVER THE POSTAI, SERVICE.

Constitutional provisions : their meaning and application . . 411,412

SECTION Vm. — THE POWDR TO CREATE AND BESTOW PATENT RIGHTS AND

COPYRIGHTS.

Constitutional provisions ; their meaning and application . . 413,414

SECTION IX. — THE POWER TO DEFINE AND PUNISH CRIMES.

Express provisions of the Constitution 416

First. 2%e Express Power to define and punish crimes.

I. Counterfeiting the Securities and Current Coin of the United States.

Meaning and extent of this particular power . . . 417-419

Whether the states may also exercise this power .... 420 riv TABLE or CONTENTS.

H. Piracies, Felonies committed on the High Seas, and Offences agains t the Law of Nations.

SSOTION

Extent of this power 422, 423

Piracy; meaning; kinds; special cases of .... 424-427 Offences committed on the high seas ; what are the high seas 428-430

III. Treason against the United States. i

What is treason 431-433

Punishment thereof 434,435

What included within the power 436

Second. The Implied Powers to define and punish Crimes. The origin and extent of these powers 437-440

SECTION X. — THE MILITARY AND WAB POWERS.

Pirst. The Powers which relate to the Inception and Conduct of War. I. The Power to declare War.

Reasons for intrusting this power to Congress ..... 443 Can a war exist before Congress has declared war . . . 444 Can the President so act as to create a proper war . . . 44.5-453 Commencement of a civil war 447-453

II. The Power to grant Letters of Marque and Reprisal. Nature of this power, 454

in. — The Power to make Rules concerning Captures on Land and Water.

What are "captures" 455

Extent and nature of the power 456, 457

Captures during a civil war ....... 458, 459

Second. The Powers which relate to the raising, maintaining, equipping^ and governing the Army and Navy.

I. The Power to raise and support the Forces. Necessity of this power ; limitations upon it .... 460-462

What measures Congress may adopt ..... 463-466

II. The Power to govern the Forces.

Nature and extent of this power 467, 468

IMilitary Law , 469-471

Third. Those Powers which relate to the Employment of the Militia m tht Service ofthg General Government.

The militia belongs to the states 472

TABLE or CONTENTS. xv

8B0II0W

Extent of power of Congress to call forth the militia . 473, 474

Houston ». Moore : Martin u. Mott . . . . , 475 4 76

Conscription,

Nature of conscription 477 478

Knudler v. Lane 479-482

Arguments against the power 480

" in favor of the power 481

Conclusion 482

SECTION XL — THE POWER OTBB THE TEBBITOKIBS. Constitutional provisions 48S, 484

I. The Right of Proprietorship.

Title to unappropriated lands ; cessions by the states . . 485-487 Acquisition of lands by treaty ; power to acquire land by treaty . 488 Power to dispose of public lands 489

II. The Right of Government.

Government of the District of Columbia, 490,491

Limitations upon this power to govern 492, 493

Government of the territories ; source of this power . . . 494-499

The Dred Scott case 496-499

SECTION Xn.— EXPRESS PKOHIBITIONS UPON THE EXERCISE OE LBGISLATIVB

POWERS.

Divisions of this subject 500

First. Prohibitions directed to Congress, or to it and the State Legislatures

I. Bills of Attainder.

Definition and description 501-503

The Test Oath cases ; Cummings ». Missouri ; Ex parte Garland 504-511

II. Ex Post Facto Laws.

Definition and description 512-514

Calder v. Bull ; Fletcher v. Peck ; WatsOn v. Mercer . . 515-518

Lord V. Chadboume ; Woart v. Winnick ; Rich v. Flanders ; State

Hartung v. The People 522-524

Examination of these cases ; when is a test oath a penalty . . 529-6.16 jCVi TABLE OF CONTENTS.

m. Oilier Express Prohibitions.

Authority to draw money ; titles of nobility 536

Second. Prohibitions directed to the State Legislatures alone.

Impairing the Obligations of Contracts,

Divisions of the subject ........ 538

I. What are Contracts within this provision of the Constitution f

1. Executory contracts 540

2. Executed " 541

Grants made by states 642-546

5. Private corporations ; definition 560,561

Questions involved . . . . . . . . . .562

(1) A charter is a contract in its general scope and design 563-568 Dartmouth College v. Woodward ; Providence Bank v.

Billings ; Planters' Bank v. Sharp . . . 564, 565 Cases in state courts ....... 566-568

(2) A charter is a contract in respect' to its express collateral

stipulations ; stipulations against taxing, and against exercise of the power of eminent domain . . 569-584 United States Supreme Court cases . . . 571-573

Cases in state courts ....... 574-583

Binghampton Bridge case ...... 584

(3) Collateral stipulations not implied in charters . . 585, 586

6. Municipal Corporations 687

II. What is the Obligation of a Contract ?

The meaning technical not popular 588

Obligation in the Roman Law 589

The law creates the obligation 590-592

Ogden V. Saunders ......... 593

Illustrations 594, 595

A remedial right included in the obligation .... 596, 597

III. What State Laws impair the Obligation of Contracts.

General Rules ; meaning of impair : future contracts . . 598,599

1. Laws which apply directly to the terms of a contract . . 600, 601

Exercise of right of eminent domain 602

State Insolvent Laws ; their effect 603-608

%. Laws which apply directly to the remedy .... 609-627

A remedial right included in the obligation . . . . 610

What is the remedial right ; distinction between it and procedure 611, 612

Modes of procedure not included in the obligation . . . 613

[llustrations .614

TABLE OF CONTENTS. xvii

sxcnoii Bronson o. Kinzie ; McCracken v. Hayward, Grantle/s Lessee v.

Ewing; Curran t7. Arkansas 615,616

(1) Deprivation of remedies 617

(2) Statutes of limitation 618

(3) Imprisonment for debt 619

(4) Stay and appraisement laws 620-624

(5) Exemptions from execution 625-627