[1372] James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937).

[1373] Battle v. United States, 209 U.S. 36 (1908).

[1374] Arlington Hotel Co. v. Fant, 278 U.S. 439 (1929).

[1375] James v. Dravo Contracting Co, 302 U.S. 134, 143 (1937).

[1376] Collins v. Yosemite Park Co., 304 U.S. 518, 530 (1938).

[1377] Ibid. 528.

[1378] Battle v. United States, 209 U.S. 36 (1908); Johnson v. Yellow Cab Co., 321 U.S. 383 (1944); Bowen v. Johnston, 306 U.S. 19 (1939).

[1379] Surplus Trading Co. v. Cook, 281 U.S. 647 (1930).

[1380] Western Union Teleg. Co. v. Chiles, 214 U.S. 274 (1909); Arlington Hotel Co. v. Fant, 278 U.S. 439 (1929); Pacific Coast Dairy v. Dept. of Agri., 318 U.S. 285 (1943).

[1381] Chicago, R.I. & P.R. Co. v. McGlinn, 114 U.S. 542, 545 (1885); James Stewart & Co. v. Sadrakula, 309 U.S. 94 (1940).

[1382] Palmer v. Barrett, 162 U.S. 399 (1896).

[1383] United States v. Unzeuta, 281 U.S. 138 (1930).

[1384] Benson v. United States, 146 U.S. 325, 331 (1892).

[1385] Palmer v. Barrett, 162 U.S. 399 (1896).

[1386] S.R.A., Inc. v. Minnesota, 327 U.S. 558, 564 (1946).

[1387] Ibid. 570, 571.

[1388] Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 532 (1885); United States v. Unzeuta, 281 U.S. 138, 142 (1930); Surplus Trading Co. v. Cook, 281 U.S. 647, 652 (1930).

[1389] United States v. Cornell, 25 Fed. Cas. No. 14,867 (1819).

[1390] James v. Dravo Contracting Co., 302 U.S. 134, 145 (1937).

[1391] Silas Mason Co. v. Tax Commission of Washington, 302 U.S. 186 (1937). See also Atkinson v. State Tax Commission, 303 U.S. 20 (1938).

[1392] 4 Wheat. 316 (1819).

[1393] Ibid. 420. This decision had been clearly foreshadowed fourteen years earlier by Marshall's opinion in United States v. Fisher, 2 Cr. 358, 396 (1805). Upholding an act which gave priority to claims of the United States against the estate of a bankrupt he wrote: "The government is to pay the debt of the Union, and must be authorized to use the means which appear to itself most eligible to effect that object. It has, consequently, a right to make remittances, by bills or otherwise, and to take those precautions which will render the transaction safe."

[1394] See pp. 74-82, supra.

[1395] Neely v. Henkel, 180 U.S. 109, 121 (1901). See also Missouri v. Holland, 252 U.S. 416 (1920).

[1396] See p. 426, supra.

[1397] Den ex dem. Murray v. Hoboken Land & Improvement Co., 18 How. 272, 281 (1856).

[1398] Kohl v. United States, 91 U.S. 367, 373 (1876); United Slates v. Fox, 94 U.S. 315, 320 (1877).

[1399] See pp. 110-117, 266-267.

[1400] United States v. Fox, 95 U.S. 670, 672 (1878); United States v. Hall, 98 U.S. 343, 357 (1879); United States v. Worrall, 2 Dall. 384, 394 (1790); McCulloch v. Maryland, 4 Wheat. 316 (1819). That this power has been freely exercised is attested by the 180 pages of the United States Code (1950 ed.) devoted to Title 18, entitled "Criminal Code and Criminal Procedure." In addition numerous regulatory measures prescribe criminal penalties for infractions thereof.

[1401] Ex parte Carll, 106 U.S. 521 (1883).

[1402] United States v. Marigold, 9 How. 560, 567 (1850).

[1403] Logan v. United States, 144 U.S. 263 (1892).

[1404] United States v. Barnow, 239 U.S. 74 (1915).

[1405] Ex parte Yarbrough, 110 U.S. 651 (1884); United States v. Waddell, 112 U.S. 76 (1884); In re Quarles, 158 U.S. 532, 537 (1895); Motes v. United States, 178 U.S. 458 (1900); United States v. Mosley, 238 U.S. 383 (1915). See also Rakes v. United States, 212 U.S. 55 (1909).

[1406] Ex parte Curtis, 106 U.S. 371 (1882).

[1407] The Alien Registration Act of 1940, 54 Stat. 670, 18 U.S.C.A. Sec. 2385.

[1408] McCulloch v. Maryland, 4 Wheat. 316, 407 (1819).

[1409] Osborn v. Bank of the United States, 9 Wheat. 738, 862 (1824). See also Pittman v. Home Owners' Loan Corp., 308 U.S. 21 (1939).

[1410] First Nat. Bank v. Fellows ex rel. Union Trust Co., 244 U.S. 416 (1917); Burnes Nat. Bank v. Duncan, 265 U.S. 17 (1924).

[1411] Smith v. Kansas City Title and Trust Co., 255 U.S. 180 (1921).

[1412] Juilliard v. Greenman, 110 U.S. 421, 449 (1884).

[1413] Veazie Bank v. Fenno, 8 Wall. 533 (1869).

[1414] Juilliard v. Greenman, 110 U.S. 421 (1884). See also Legal Tender Cases, 12 Wall. 457 (1871).

[1415] Norman v. Baltimore & O.R. Co., 294 U.S. 240, 303 (1935).

[1416] Pacific Railroad Removal Cases (Union P.R. Co. v. Myers), 115 U.S. 1, 18 (1885); California v. Central P.R. Co., 127 U.S. 1, 39 (1888).

[1417] Luxton v. North River Bridge Co., 153 U.S. 525 (1894).

[1418] Clallam County v. United States, 263 U.S. 341 (1923).

[1419] Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549 (1922). In 1944, the Congressional Joint Committee on Nonessential Federal Expenditures reported that there were then in existence one hundred government corporations, including subsidiaries and quasi-private corporations in which the Government had some special contractual or proprietary interest. S. Doc. No. 227, 78th Cong., 2d sess. 2 (1944).

[1420] Rhode Island v. Massachusetts, 12 Pet. 657, 721 (1838).

[1421] Tennessee v. Davis, 100 U.S. 257, 263 (1880).

[1422] Chicago & Northwestern R. Co. v. Whitton, 13 Wall. 270, 287 (1872).

[1423] Embry v. Palmer, 107 U.S. 3 (1883).

[1424] Bank of United States v. Halstead, 10 Wheat. 51, 53 (1825).

[1425] United States Exp. Co. v. Kountze Bros., 8 Wall. 342, 350 (1860).

[1426] Ex parte Bakelite Corp., 279 U.S. 438, 449 (1929).

[1427] 43 Stat. 5 (1924). See Sinclair v. United States, 279 U.S. 263 (1929).

[1428] Paramino Lumber Co. v. Marshall, 309 U.S. 370 (1940).

[1429] Pope v. United States, 323 U.S. 1 (1944).

[1430] Detroit Trust Company v. The "Thomas Barium," 293 U.S. 21 (1934).

[1431] Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920); Washington v. Dawson & Co., 264 U.S. 219 (1924).

[1432] Barron v. Baltimore, 7 Pet. 243 (1833); Morgan's L. & T.R. & S.S. Co. v. Louisiana Board of Health, 118 U.S. 455, 467 (1886).

[1433] Munn v. Illinois, 94 U.S. 113, 135 (1877); Johnson v. Chicago & P. Elevator Co., 119 U.S. 388, 400 (1886).

[1434] 19 How. 393, 411 (1857).

[1435] Gasquet v. Lapeyre, 242 U.S. 367 (1917).

[1436] 1 Stat. 73, 81 (1789).

[1437] Ex parte Watkins, 3 Pet. 193, 202 (1830).

[1438] Ex parte Bollman, 4 Cr. 75, 101 (1807).

[1439] Price v. Johnston, 334 U.S. 266, 282 (1948).

[1440] United States v. Smith, 331 U.S. 469, 475 (1947).

[1441] Gusik v. Schilder, 339 U.S. 977 (1950).

[1442] Frank v. Mangum, 237 U.S. 309, 330 (1915).

[1443] 1 Stat. 73, 81 (1789).

[1444] Ex parte Watkins, 3 Pet. 193, 202 (1830); Ex parte Kearney, 7 Wheat. 38 (1822).

[1445] 14 Stat. 385 (1867).

[1446] Frank v. Mangum, 237 U.S. 309, 331 (1915).

[1447] Ex parte Bollman, 4 Cr. 75 (1807).

[1448] Adams v. United States ex rel. McCann, 317 U.S. 269, 274 (1942); Glasgow v. Moyer, 225 U.S. 420, 428 (1912); Matter of Gregory, 219 U.S. 210, 213 (1911).

[1449] Adams v. United States ex rel. McCann, 317 U.S. 269, 274 (1942).

[1450] Walker v. Johnston, 312 U.S. 275 (1941); Waley v. Johnston, 316 U.S. 101 (1942).

[1451] Ex parte Milligan, 4 Wall. 2, 110 (1866).

[1452] McNally v. Hill, 293 U.S. 131 (1934).

[1453] Goto v. Lane, 265 U.S. 393 (1924).

[1454] Salinger v. Loisel, 265 U.S. 224 (1924).

[1455] Wong Doo v. United States, 265 U.S. 239 (1924).

[1456] Price v. Johnston, 334 U.S. 266, 294 (1948).

[1457] Corwin, The President, Office and Powers, 178 (3d ed., 1948).

[1458] Ex parte Bollman, 4 Cr. 75, 101 (1807).

[1459] Messages and Papers of the Presidents, VII, 3219 (1897).

[1460] Fed. Cas. No. 9, 487 (1861).

[1461] 10 Op. Atty. Gen. 74, 89 (1861-1863).

[1462] 12 Stat. 755 (1863).

[1463] 4 Wall. 2 (1866).

[1464] Ibid. 114.

[1465] Story, Commentaries on the Constitution, II, Sec. 1344 (4th ed., 1873).

[1466] Cummings v. Missouri, 4 Wall. 277, 323 (1867).

[1467] United States v. Lovett, 328 U.S. 303, 315 (1946).

[1468] Ex parte Garland, 4 Wall. 333, 377 (1867).

[1469] United States v. Lovett, 328 U.S. 303 (1946).

[1470] Story, Commentaries on the Constitution, II, Sec. 1345.

[1471] 3 Dall. 386, 393 (1798).

[1472] Bankers Trust Co. v. Blodgett, 260 U.S. 647, 652 (1923).

[1473] Burgess v. Salmon, 97 U.S. 381 (1878).

[1474] Calder v. Bull, 3 Dall. 386, 390 (1798); Ex parte Garland, 4 Wall. 333, 377 (1867); Burgess v. Salmon, 97 U.S. 381, 384 (1878).

[1475] United States v. Powers, 307 U.S. 214 (1939).

[1476] Neely v. Henkel, 180 U.S. 109, 123 (1901). Cf. In re Yamashita, 327 U.S. 1, 26 (1946) (dissenting opinion of Justice Murphy); Hirota v. MacArthur, 338 U.S. 197, 199 (1948) (concurring opinion of Justice Douglas).

[1477] Ex parte Garland, 4 Wall. 333 (1867).

[1478] Murphy v. Ramsey, 114 U.S. 15 (1885).

[1479] Mahler v. Eby, 264 U.S. 32 (1924); Bugajewitz v. Adams, 228 U.S. 585 (1913).

[1480] Johannessen v. United States, 225 U.S. 227 (1912).

[1481] Cook v. United States, 138 U.S. 157, 183 (1891).

[1482] Calder v. Bull, 3 Dall. 386, 390 (1798).

[1483] Hopt v. Utah, 110 U.S. 574, 589 (1884).

[1484] 157 U.S. 429, 573 (1895).

[1485] 2 Madison, The Constitutional Convention, 208 (Hunt's ed., 1908).

[1486] 3 Dall. 171 (1796).

[1487] 7 Hamilton's Works, 845, 848 (Hamilton's ed., 1851). "If the meaning of the word excise is to be sought in the British statutes, it will be found to include the duty on carriages, which is there considered as an excise, and then must necessarily be uniform and liable to apportionment; consequently, not a direct tax." Ibid.

[1488] 4 Annals of Congress, 730 (1794); 2 Madison's Writings, 14, (Library of Congress ed., 1865) (Letter to Thomas Jefferson, May 11, 1794).

[1489] 3 Dall. 171, 177 (1796).

[1490] Pacific Ins. Co. v. Soule, 7 Wall. 433 (1869).

[1491] Veazie Bank v. Fenno, 8 Wall. 533 (1869).

[1492] Scholey v. Rew, 23 Wall. 331 (1875).

[1493] Springer v. United States, 102 U.S. 586 (1881).

[1494] Ibid. 602.

[1495] 157 U.S. 429 (1895); 158 U.S. 601 (1895).

[1496] 28 Stat. 509 (1894).

[1497] Stanton v. Baltic Mining Co., 240 U.S. 103 (1916); Knowlton v. Moore, 178 U.S. 41, 80 (1900).

[1498] Nicol v. Ames, 173 U.S. 509 (1899).

[1499] Knowlton v. Moore, 178 U.S. 41 (1900).

[1500] Patton v. Brady, 184 U.S. 608 (1902).

[1501] 192 U.S. 363 (1904).

[1502] Ibid. 370.

[1503] 192 U.S. 397 (1904).

[1504] 220 U.S. 107 (1911).

[1505] 240 U.S. 103 (1916).

[1506] Ibid. 114.

[1507] 232 U.S. 261 (1914).

[1508] New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).

[1509] Phillips v. Dime Trust & Safe Deposit Co., 284 U.S. 160 (1931).

[1510] Tyler v. United States, 281 U.S. 497 (1930).

[1511] Fernandez v. Wiener, 326 U.S. 340 (1945).

[1512] Chase National Bank v. United States, 278 U.S. 327 (1929).

[1513] Bromley v. McCaughn, 280 U.S. 124, 136 (1929). See also Helvering v. Bullard, 303 U.S. 297 (1938).

[1514] Bromley v. McCaughn, 280 U.S. 124, 140 (1929).

[1515] Loughborough v. Blake, 5 Wheat. 317 (1820).

[1516] De Treville v. Smalls, 98 U.S. 517, 527 (1879).

[1517] Turpin & Bro. v. Burgess, 117 U.S. 504, 507 (1886). Cf. Almy v. California, 24 How. 169, 174 (1861).

[1518] Dooley v. United States, 183 U.S. 151, 154 (1901).

[1519] Cornell v. Coyne, 192 U.S. 418, 428 (1904); Turpin & Bro. v. Burgess, 117 U.S. 504, 507 (1886).

[1520] Spalding & Bros. v. Edwards, 262 U.S. 66 (1923).

[1521] Thompson v. United States, 142 U.S. 471 (1892).

[1522] Peck & Co. v. Lowe, 247 U.S. 165 (1918); National Paper & Type Co. v. Bowers, 266 U.S. 373 (1924).

[1523] Fairbank v. United States, 181 U.S. 283 (1901).

[1524] United States v. Hvoslef, 237 U.S. 1 (1915).

[1525] Thames & Mersey Ins. Co. v. United States, 237 U.S. 19 (1915).

[1526] Pace v. Burgess, 92 U.S. 372 (1876); Turpin & Bro. v. Burgess, 117 U.S. 504, 505 (1886).

[1527] Louisiana Public Service Comm'n. v. Texas & N.O.R. Co., 284 U.S. 125, 131 (1931); Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 433 (1856); South Carolina v. Georgia, 93 U.S. 4 (1876). In Williams v. United States, 255 U.S. 336 (1921) the argument that an act of Congress which prohibited interstate transportation of liquor into States whose laws prohibited manufacture or sale of liquor for beverage purposes was repugnant to this clause was rejected as plainly wanting in merit.

[1528] Louisiana Public Service Comm'n. v. Texas & N.O.R. Co., 284 U.S. 125, 132 (1931).

[1529] Smith v. Turner (Passenger Cases), 7 How. 283, 414 (1849) (opinion of Justice Wayne); cf. Cooley v. Board of Port Wardens, 12 How. 299, 314 (1851).

[1530] Morgan's L. & T.R. & S.S. Co. v. Louisiana Bd. of Health, 118 U.S. 455, 467 (1886). See also Munn v. Illinois, 94 U.S. 113, 135 (1877); Johnson v. Chicago & P. Elevator Co., 119 U.S. 388, 400 (1886).

[1531] 1 Stat. 53, 54 (1789).

[1532] Thompson v. Darden, 198 U.S. 310 (1905).

[1533] Alaska v. Troy, 258 U.S. 101 (1922).

[1534] Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937); Knote v. United States, 95 U.S. 149, 154 (1877).

[1535] United States v. Price, 116 U.S. 43 (1885); United States v. Realty Co., 163 U.S. 427, 439 (1896); Allen v. Smith, 173 U.S. 389, 393 (1899).

[1536] Hart v. United States, 118 U.S. 62, 67 (1886).

[1537] 32 Stat. 388 (1902).

[1538] Cincinnati Soap Co. v. United States, 301 U.S. 308, 322 (1937).

[1539] Reeside v. Walker, 11 How. 272 (1851).

[1540] United States v. Klein, 13 Wall. 128 (1872).

[1541] Knote v. United States, 95 U.S. 149, 154 (1877); Austin v. United States, 155 U.S. 417, 427 (1894).

[1542] Hart v. United States, 118 U.S. 62, 67 (1886).

[1543] 13 Op. Atty. Gen. 538 (1871).

[1544] Williams v. Bruffy, 96 U.S. 176, 183 (1878).

[1545] 14 Pet. 540 (1840).

[1546] United States v. California, 332 U.S. 19 (1947).

[1547] 313 U.S. 69 (1941).

[1548] Ibid. 78-79.

[1549] Craig v. Missouri, 4 Pet. 410, 425 (1830); Byrne v. Missouri, 8 Pet. 40 (1834).

[1550] Poindexter v. Greenhow, 114 U.S. 270 (1885); Chaffin v. Taylor, 116 U.S. 567 (1886).

[1551] Houston & T.C.R. Co. v. Texas, 177 U.S. 66 (1900).

[1552] Briscoe v. Bank of Kentucky, 11 Pet. 257 (1837).

[1553] Darrington v. Bank of Alabama, 13 How. 12, 15 (1851); Curran v. Arkansas, 15 How. 304, 317 (1853).

[1554] Briscoe v. Bank of Kentucky, 11 Pet. 257 (1837).

[1555] Woodruff v. Trapnall, 10 How. 190, 205 (1851).

[1556] Legal Tender Cases, 110 U.S. 421, 446 (1884).

[1557] Gwin v. Breedlove, 2 How. 29, 38 (1844). See also Griffin v. Thompson, 2 How. 244 (1844).

[1558] Farmers & Merchants Bank v. Federal Reserve Bank, 262 U.S. 649, 659 (1923).

[1559] Cummings v. Missouri, 4 Wall. 277, 323 (1867); Klinger v. Missouri, 13 Wall. 257 (1872); Pierce v. Carskadon, 16 Wall. 234, 239 (1873). See p. 317, supra, and p. 327, post.

[1560] Calder v. Bull, 3 Dall. 386, 390 (1798); Watson v. Mercer, 8 Pet. 88, 110 (1834); Baltimore & S.R. Co. v. Nesbit, 10 How. 395, 401 (1850); Carpenter v. Pennsylvania, 17 How. 456, 463 (1855); Loche v. New Orleans, 4 Wall. 172 (1867); Orr v. Gilman, 183 U.S. 278, 285 (1902); Kentucky Union Co. v. Kentucky, 219 U.S. 140 (1911).

[1561] Frank v. Mangum, 237 U.S. 300, 344 (1915); Ross v. Oregon, 227 U.S. 150, 161 (1913).

[1562] Jaehne v. New York, 128 U.S. 189, 190 (1888).

[1563] Rooney v. North Dakota, 196 U.S. 319, 325 (1905).

[1564] Chicago & A.R. Co. v. Tranbarger, 238 U.S. 67 (1915).

[1565] Samuels v. McCurdy, 267 U.S. 188 (1925).

[1566] Hawker v. New York, 170 U.S. 189, 190 (1898). See also Reetz v. Michigan, 188 U.S. 505, 509 (1903); Lehmann v. State Board of Public Accountancy, 263 U.S. 394 (1923).

[1567] Cummings v. Missouri, 4 Wall. 277, 316 (1867).

[1568] Pierce v. Carskadon, 16 Wall. 234 (1873).

[1569] Lindsey v. Washington, 301 U.S. 397 (1937).

[1570] Kring v. Missouri, 107 U.S. 221 (1883).

[1571] Holden v. Minnesota, 137 U.S. 483, 491 (1890).

[1572] Ex parte Medley, 134 U.S. 160, 171 (1890).

[1573] Gryger v. Burke, 334 U.S. 728 (1948); McDonald v. Massachusetts, 180 U.S. 311 (1901); Graham v. West Virginia, 224 U.S. 616 (1912).

[1574] Malloy v. South Carolina, 237 U.S. 180 (1915).

[1575] Rooney v. North Dakota, 196 U.S. 319, 324 (1905).

[1576] Gibson v. Mississippi, 162 U.S. 565, 590 (1896).

[1577] Duncan v. Missouri, 152 U.S. 377, 382 (1894).

[1578] Gut v. Minnesota, 9 Wall. 35, 37 (1870).

[1579] Duncan v. Missouri, 152 U.S. 377 (1894).

[1580] Mallett v. North Carolina, 181 U.S. 589, 593 (1901).

[1581] Gibson v. Mississippi, 162 U.S. 565, 588 (1896).

[1582] Beazell v. Ohio, 269 U.S. 167 (1925).

[1583] Thompson v. Missouri, 171 U.S. 380, 381 (1898).

[1584] Thompson v. Utah, 170 U.S. 343 (1898).

[1585] Dodge v. Woolsey, 18 How. 331 (1856); Railroad Co. v. McClure, 10 Wall. 511 (1871); New Orleans Gaslight Co. v. Louisiana Light & Heat Producing & Mfg. Co., 115 U.S. 650 (1885); Bier v. McGehee, 148 U.S. 137, 140 (1893).

[1586] New Orleans Waterworks Co. v. Rivers, 115 U.S. 674 (1885); Walla Walla v. Walla Walla Water Co., 172 U.S. 1 (1898); Vicksburg v. Vicksburg Waterworks Co., 202 U.S. 453 (1906); Atlantic Coast Line R. Co. v. Goldsboro, 232 U.S. 548 (1914); Cuyahoga River Power Co. v. Akron, 240 U.S. 462 (1916).

[1587] The above; also Grand Trunk Western R. Co. v. Railroad Commission, 221 U.S. 400 (1911); Louisville & N.R. Co. v. Garrett, 231 U.S. 298 (1913); Appleby v. Delaney, 271 U.S. 403 (1926).

[1588] Central Land Co. v. Laidley, 159 U.S. 103 (1895). See also New Orleans Waterworks Co. v. Louisiana Sugar Ref. Co., 125 U.S. 18 (1888); Hanford v. Davies, 163 U.S. 273 (1896); Ross v. Oregon, 227 U.S. 150 (1913); Detroit United R. Co. v. Michigan, 242 U.S. 238 (1916); Long Sault Development Co. v. Call, 242 U.S. 272 (1916); McCoy v. Union Elev. Co., 247 U.S. 354 (1918); Columbia R. Gas & E. Co. v. South Carolina, 261 U.S. 236 (1923); Tidal Oil Co. v. Flanagan, 263 U.S. 444 (1924).

[1589] Jefferson Branch Bank v. Skelly, 1 Bl. 436, 443 (1862); Bridge Proprietors v. Hoboken Co., 1 Wall. 116, 145 (1863); Wright v. Nagle, 101 U.S. 791, 793 (1880); and McGahey v. Virginia, 135 U.S. 662, 667 (1890); Scott v. McNeal, 154 U.S. 34, 45 (1894); Stearns v. Minnesota, 179 U.S. 223, 232-233 (1900); Coombes v. Getz, 285 U.S. 434, 441 (1932); Atlantic C.L.R. Co. v. Phillips, 332 U.S. 168, 170 (1947).

[1590] McCullough v. Virginia, 172 U.S. 102 (1898); Houston & Texas Central R.R. Co. v. Texas, 177 U.S. 66, 76, 77 (1900); Hubert v. New Orleans, 215 U.S. 170, 175 (1909); Carondelet Canal Co. v. Louisiana, 233 U.S. 362, 376 (1914); Louisiana Ry. & Nav. Co. v. New Orleans, 235 U.S. 164, 171 (1914).

[1591] State Bank of Ohio v. Knoop, 16 How. 369 (1854), and Ohio Life Insurance & Trust Co. v. Debolt, 16 How. 416 (1854) are the leading cases. See also Jefferson Branch Bank v. Skelly, 1 Bl. 436 (1862); Louisiana v. Pilsbury, 105 U.S. 278 (1882); McGahey v. Virginia, 135 U.S. 662 (1890); Mobile & Ohio R.R. Co. v. Tennessee, 153 U.S. 486 (1894); Bacon v. Texas, 163 U.S. 207 (1896); McCullough v. Virginia, 172 U.S. 102 (1898).

[1592] Gelpcke v. Dubuque, 1 Wall. 175, 206 (1864); Havemeyer v. Iowa County, 3 Wall. 294 (1866); Thompson v. Lee County, 3 Wall. 327 (1866); Kenosha v. Lamson, 9 Wall. 477 (1870); Olcott v. Fond du Lac County, 16 Wall. 678 (1873); Taylor v. Ypsilanti, 105 U.S. 60 (1882); Anderson v. Santa Anna, 116 U.S. 356 (1886); Wilkes County v. Coler, 180 U.S. 506 (1901).

[1593] Great Southern Fire Proof Hotel Co. v. Jones, 193 U.S. 532, 548 (1904).

[1594] Sauer v. New York, 206 U.S. 536 (1907); Muhlker v. New York & H.R. Co., 197 U.S. 544, 570 (1905).

[1595] Tidal Oil Company v. Flanagan, 263 U.S. 444, 450, 451-452 (1924).

[1596] Walker v. Whitehead, 16 Wall. 314 (1873); Wood v. Lovett, 313 U.S. 362, 370 (1941).

[1597] 4 Wheat. 122, 197 (1819); see also Curran v. Arkansas, 15 How. 304 (1853).

[1598] 4 Wheat. 518 (1819).

[1599] Ibid. 627.

[1600] 290 U.S. 398 (1934).

[1601] Ibid. 431.

[1602] Ibid. 435.

[1603] "The Blaisdell decision represented a realistic appreciation of the fact that ours is an evolving society and that the general words of the contract clause were not intended to reduce the legislative branch of government to helpless impotency." Justice Black, in Wood v. Lovett, 313 U.S. 362, 383 (1941).

[1604] Wright, The Contract Clause of the Constitution, 95 (Cambridge, 1938).

[1605] Farrand, Records, III, 548.

[1606] The Federalist, No. 44.

[1607] Works of James Wilson, I, 567, (Andrews, ed., 1896).

[1608] 2 Dall. 410 (1793).

[1609] Ogden v. Saunders, 12 Wheat. 213, 338 (1827).

[1610] 6 Cr. 87 (1810).

[1611] In Ware v. Hylton, 3 Dall. 199 (1797) the Court had earlier set aside an act of Virginia as being in conflict with the Treaty of Peace, of 1783, with Great Britain.

[1612] As given by Professor Wright in his treatise, The Contract Clause of the Constitution, 22. Professor Wright dates Hamilton's pamphlet, 1796.

[1613] 6 Cr. 87, 139 (1810). Justice Johnson, in his concurring opinion, relied exclusively on general principles. "I do not hesitate to declare, that a State does not possess the power of revoking its own grants. But I do it, on a general principle, on the reason and nature of things; a principle which will impose laws even on the Deity." Ibid. 143. See also his words in Satterlee v. Matthewson, 2 Pet. 380, 686 (1829); and those of the North Carolina Supreme Court in Barnes v. Barnes, 8 Jones L. 53 (N.C.) 366 (1861), quoted in Thomas Henry Calvert. The Constitution and the Courts, I, 948 (Northport, L.I., 1924). In both these opinions it is asseverated that the contracts clause has been made to do the work of "fundamental principles."

[1614] 7 Cr. 164 (1812). The exemption from taxation which was involved in this case was held in 1886 to have lapsed through the acquiescence for sixty years of the owners of the lands in the imposition of taxes upon these. Given v. Wright, 117 U.S. 648 (1886).

[1615] Dartmouth College v. Woodward, 4 Wheat. 518 (1819).

[1616] It was not until well along in the eighteenth century that the first American business corporation was created: "This was the New London Society United for Trade and Commerce, which was chartered in Connecticut in 1732. It had, however, an early demise. Following this was a second Connecticut charter, namely, for building 'Union Wharf,' on 'Long Wharf,' at New Haven. A similar company, 'The Proprietors of Boston Pier,' or 'The Long Wharf in the Town of Boston in New England,' was chartered by the Massachusetts General Court in 1772. In 1768 the Pennsylvania Assembly incorporated 'The Philadelphia Contributionship for the Insuring of Houses from Loss by Fire.' Alone of the colonial business corporations it has had a continuous existence to the present day.

"Apparently the only other business corporations of the colonies were companies for supplying water. One was incorporated in Massachusetts in 1652, and three in Rhode Island in 1772 and 1773. Alongside of these corporations, and, indeed, preceding them, were a large number of unincorporated associations, partnerships, societies, groups of 'undertakers,' 'companies,' formed for a great variety of business purposes. In the eye of the law all of them were probably mere partnerships or tenancies in common. Whaling and fishing companies, so-called, were numerous. There were a number of mining companies, chiefly for producing iron or copper. There were some manufacturing companies, but they were not numerous. Banking institutions were represented notably by the 'Bank of Credit Lumbard,' promoted in Boston by John Blackwell and authorized by the General Court in 1686, and by the 'Land Bank or Manufacturing Scheme' in the same colony in 1739-41.

"In addition to these there were a few insurance companies, a number of companies formed for the Indian trade, numerous land companies, large and small, a number of associations for erecting bridges, building or repairing roads, and improving navigation of small streams or rivers. Besides these there were a few colonial corporations not easily classed, such as libraries, chambers of commerce, etc.

"During the Revolution few corporations of any sort were chartered. After the conclusion of peace the situation was materially altered. Capital had accumulated during the war. The disbanding of the army set free a labor supply, which was rapidly increased by throngs of immigrants. The day was one of bold experimentation, enthusiastic exploitation of new methods, eager exploration of new paths, confident undertaking of new enterprises. Everything conspired to bring about a considerable extension of corporate enterprise in the field of business before the end of the eighteenth century, notably after the critical period of disunion and Constitution-making has passed. Prior to 1801 over three hundred charters were granted for business corporations; 90 per cent. of them after 1789. Judged by twentieth-century standards these seem few, indeed, but neither in the colonies nor in the mother country was there precedent for such a development." 105 The Nation 512 (New York, Nov. 8, 1917), reviewing Joseph Stancliffe Davis, Essays in the Earlier History of American Corporations (2 vols., Harvard University Press, 1917).

[1617] In 1806 Chief Justice Parsons of the Supreme Judicial Court of Massachusetts, without mentioning the contracts clause, declared that rights legally vested in a corporation cannot be "controuled or destroyed by a subsequent statute, unless a power be reserved to the legislature in the act of incorporation," Wales v. Stetson, 2 Mass. 143 (1806). See also Stoughton v. Baker et al., 4 Mass. 522 (1808) to like effect; cf. Locke v. Dane, 9 Mass. 360 (1812) in which it is said that the purpose of the contracts clause was to "provide against paper money and insolvent laws." Together these holdings add up to the conclusion that the reliance of the Massachusetts court was on "fundamental principles," rather than the contracts clause.

[1618] 4 Wheat., especially at 577-595 (Webster's argument); ibid. 666 (Story's opinion). See also Story's opinion for the Court in Terrett v. Taylor, 9 Cr. 43 (1815).

[1619] 4 Wheat. 518 (1819).

[1620] Ibid. 627.

[1621] 4 Wheat. at 637; see also Home of the Friendless v. Rouse, 8 Wall. 430, 437 (1869).

[1622] 4 Pet. 514 (1830).

[1623] 11 Pet. 420 (1837).

[1624] Note the various cases to which municipalities are parties.

[1625] 4 Wheat. at 629.

[1626] In Munn v. Illinois, 94 U.S. 113 (1877) a category of "business affected with a public interest" and whose property is "impressed with a public use" was recognized. A corporation engaged in such a business becomes a "quasi-public" corporation, the power of the State to regulate which is larger than in the case of a purely private corporation. Inasmuch as most corporations receiving public franchises are of this character, the final result of Munn v. Illinois was to enlarge the police power of the State in the case of the most important beneficiaries of the Dartmouth College decision.

[1627] Meriwether v. Garrett, 102 U.S. 472 (1880); Covington v. Kentucky, 173 U.S. 231 (1899); Hunter v. Pittsburgh, 207 U.S. 161 (1907).

[1628] East Hartford v. Hartford Bridge Co., 10 How. 511 (1851); Hunter v. Pittsburgh, 207 U.S. 161 (1907).

[1629] Trenton v. New Jersey, 262 U.S. 182, 191 (1923).

[1630] Newton v. Mahoning County, 100 U.S. 548 (1880).

[1631] Attorney General ex rel. Kies v. Lowrey, 199 U.S. 233 (1905).

[1632] Faitoute Iron & Steel Co. v. Asbury Park, 316 U.S. 502 (1942). In this case the contracts involved were municipal bonds, and hence "private" contracts; but the overruling power of the State in relation to its municipalities was one of the grounds invoked by the Court in sustaining the legislation. See Ibid. 509. "'A municipal corporation * * * is a representative not only of the State, but is a portion of its governmental power. * * * The State may withdraw these local powers of government at pleasure, and may, through its legislature or other appointed channels, govern the local territory as it governs the State at large. It may enlarge or contract its powers or destroy its existence.'" United States v. Baltimore & O.R. Co., 17 Wall. 322, 329 (1873); and see Hunter v. Pittsburgh, 207 U.S. 161 (1907).

[1633] Butler v. Pennsylvania, 10 How. 402 (1850); Fisk v. Police Jury, 116 U.S. 131 (1885); Dodge v. Board of Education, 302 U.S. 74 (1937); Mississippi Use of Robertson v. Miller, 276 U.S. 174 (1928).

[1634] Butler v. Pennsylvania, 10 How. 420 (1850). Cf. Marbury v. Madison, 1 Cr. 137 (1803); Hoke v. Henderson, 15 N.C., (4 Dev.) 1 (1833). See also United States v. Fisher, 109 U.S. 143 (1883); United States v. Mitchell, 109 U.S. 146 (1883); Crenshaw v. United States, 134 U.S. 99 (1890).

[1635] Fisk v. Police Jury, 116 U.S. 131 (1885); Mississippi Use of Robertson v. Miller, 276 U.S. 174 (1928).

[1636] Hall v. Wisconsin, 103 U.S. 5 (1880). Cf. Higginbotham v. Baton Rouge, 306 U.S. 535 (1939).

[1637] Phelps v. Board of Education, 300 U.S. 319 (1937).

[1638] Dodge v. Board of Education, 302 U.S. 74 (1937).

[1639] Indiana ex rel. Anderson v. Brand 303 U.S. 95 (1938).

[1640] 7 Cr. 164 (1812).

[1641] Delaware Railroad Tax, 18 Wall. 206, 225 (1874); Pacific R. Co. v. Maguire, 20 Wall. 36, 43 (1874); Humphrey v. Pegues, 16 Wall. 244, 249 (1873); Home of Friendless v. Rouse, 8 Wall. 430, 438 (1869).

[1642] 16 How. 369 (1854).

[1643] Ibid. 382-383.

[1644] Salt Co. v. East Saginaw, 13 Wall. 373, 379 (1872). See also Welch v. Cook, 97 U.S. 541 (1879); Grand Lodge, F. & A.M. v. New Orleans, 166 U.S. 143 (1897); Wisconsin & M.R. Co. v. Powers, 191 U.S. 379 (1903). Cf. Ettor v. Tacoma, 228 U.S. 148 (1913), in which it was held that the repeal of a statute providing for consequential damages caused by changes of grades of streets could not constitutionally affect an already accrued right to compensation.

[1645] See Christ Church v. Philadelphia County, 24 How. 300, 302 (1861); Seton Hall College v. South Orange, 242 U.S. 100 (1916).

[1646] Compare the above case with Home of Friendless v. Rouse, 8 Wall. 430, 437 (1869); also Illinois Central R. Co. v. Decatur, 147 U.S. 190 (1893) with Wisconsin & M.R. Co. v. Powers, 191 U.S. 379 (1903).

[1647] Crane v. Hahlo, 258 U.S. 142, 145-146 (1922); Louisiana ex rel. Folsom v. New Orleans, 109 U.S. 285, 288 (1883); Morley v. Lakeshore & M.S.R. Co., 146 U.S. 162, 169 (1892). That the obligation of contracts clause did not protect vested rights merely as such was stated by the Court as early as Satterlee v. Matthewson, 2 Pet. 380, 413 (1829); and again in the Charles River Bridge Co. v. Warren Bridge Co., 11 Pet. 420, 539-540 (1837).

[1648] See Story's opinion. 4 Wheat. at 712.

[1649] Home of Friendless v. Rouse, 8 Wall. 430, 438 (1869); Pennsylvania College Cases, 13 Wall. 190, 213 (1872); Miller v. New York, 15 Wall. 478 (1873); Murray v. Charleston, 96 U.S. 432 (1878); Greenwood v. Union Freight R. Co., 105 U.S. 13 (1882); Chesapeake & O.R. Co. v. Miller, 114 U.S. 176 (1885); Louisville Water Co. v. Clark, 143 U.S. 1 (1892).

[1650] New Jersey v. Yard, 95 U.S. 104, 111 (1877).

[1651] See Holyoke Water Power Co. v. Lyman, 15 Wall. 500, 520 (1873), following Fisheries v. Holyoke Water Power Co., 104 Mass. 446, 451 (1870); also Shields v. Ohio, 95 U.S. 319 (1877); Fair Haven & W.R. Co. v. New Haven, 203 U.S. 379 (1906); Berea College v. Kentucky, 211 U.S. 45 (1908). See also Lothrop v. Stedman, 15 Fed. Cas. No. 8,519 (1875), where the principles of natural justice are thought to set a limit to the power. Earlier is Zabriskie v. Hackensack & N.Y.R. Co., 18 N.J. Eq. 178 (1867) where it is said that a new charter may not be substituted; also Allen v. McKean, 1 Fed. Cas. No. 229 (1833) in which a federal court set aside a Maine statute somewhat like the one involved in the Dartmouth College case, on the ground that it went beyond the power of mere alteration. In this case, however, only the right to alter had been reserved, in the charter itself, and not the right to repeal.

[1652] See in this connection the cases cited by Justice Sutherland in his opinion for the Court in Phillips Petroleum Co. v. Jenkins, 297 U.S. 629 (1936).

[1653] Curran v. Arkansas, 15 How. 304 (1853); Shields v. Ohio, 95 U.S. 319 (1877); Greenwood v. Union Freight R. Co., 105 U.S. 13 (1882); Adirondack R. Co. v. New York, 176 U.S. 335 (1900); Stearns v. Minnesota, 179 U.S. 223 (1900); Chicago, M. & St. P.R. Co. v. Wisconsin, 238 U.S. 491 (1915); Coombes v. Getz, 285 U.S. 434 (1932).

[1654] Pennsylvania College Cases, 13 Wall. 190, 218 (1872). See also Calder v. Michigan, 218 U.S. 591 (1910).

[1655] Lakeshore & M.S.R. Co. v. Smith, 173 U.S. 684, 690 (1899); Coombes v. Getz, 285 U.S. 434 (1932). Both these decisions cite Greenwood v. Union Freight R. Co., 105 U.S. 13, 17 (1882), but without apparent justification.

[1656] 4 Pet. 514 (1830).

[1657] Thorpe v. Rutland & Burlington Railroad Co., 27 Vt. 140 (1854).

[1658] Thus a railroad may be required, at its own expense and irrespective of benefits to itself, to eliminate grade crossings in the interest of public safety, (New York & N.E.R. Co. v. Bristol, 151 U.S. 556 (1894)); to make highway crossings reasonably safe and convenient for public use, (Great Northern R. Co. v. Minnesota, 246 U.S. 434 (1918)); to repair viaducts, (Northern Pac. R. Co. v. Minnesota, 208 U.S. 583 (1908)); and to fence its right of way, (Minneapolis & St. L.R. Co. v. Emmons, 149 U.S. 364 (1893)). Though a railroad company owns the right of way along a street, the city may require it to lay tracks to conform to the established grade; to fill in tracks at street intersections; and to remove tracks from a busy street intersection, when the attendant disadvantages and expense are small and the safety of the public appreciably enhanced, (Denver & R.G.R. Co. v. Denver, 250 U.S. 241 (1919)).

Likewise the State, in the public interest, may require a railroad to reestablish an abandoned station, even though the railroad commission had previously authorized its abandonment on condition that another station be established elsewhere, a condition which had been complied with, (New Haven & N. Co. v. Hamersley, 104 U.S. 1 (1881)). It may impose upon a railroad liability for fire communicated by its locomotives, even though the State had previously authorized the company to use said type of locomotive power, (St. Louis & S.F.R. Co. v. Mathews, 165 U.S. 1, 5 (1897)); and it may penalize the failure to cut drains through embankments so as to prevent flooding of adjacent lands, (Chicago & A.R. Co. v. Tranbarger, 238 U.S. 67 (1915)).

[1659] Boston Beer Co. v. Massachusetts, 97 U.S. 25 (1878). See also Fertilizing Co. v. Hyde Park, 97 U.S. 659 (1878); and Hammond Packing v. Arkansas, 212 U.S. 322, 345 (1909).

[1660] 11 Pet. 420 (1837).

[1661] 11 Pet. at 548-553.

[1662] 201 U.S. 400 (1906).

[1663] Ibid. 471-472, citing The Binghamton Bridge, 3 Wall. 51, 75 (1865).

[1664] Memphis & L.R.R. Co. v. Berry, 112 U.S. 609, 617 (1884). See also Picard v. East Tennessee, Virginia & Georgia R. Co., 130 U.S. 637, 641 (1889); Louisville & N.R. Co. v. Palmes, 109 U.S. 244, 251 (1883); Morgan v. Louisiana, 93 U.S. 217 (1876); Wilson v. Gaines, 103 U.S. 417 (1881); Norfolk & W.R. Co. v. Pendleton, 156 U.S. 667, 673 (1895).

[1665] Railroad Co. v. Georgia, 98 U.S. 359, 365 (1879).

[1666] Phoenix F. & M. Insurance Co. v. Tennessee, 161 U.S. 174 (1896).

[1667] Rochester R. Co. v. Rochester, 205 U.S. 236 (1907); followed in Wright v. Georgia R. & Bkg. Co., 216 U.S. 420 (1910); and New York Rapid Transit Co. v. City of New York, 303 U.S. 573 (1938). Cf. Tennessee v. Whitworth, 117 U.S. 139 (1886) the authority of which is respected in the preceding case.

[1668] Chicago, B. & K.C.R. Co. v. Missouri ex rel. Guffey, 120 U.S. 569 (1887).

[1669] Ford v. Delta & Pine Land Co., 164 U.S. 662 (1897).

[1670] Vicksburg, S. & P.R. Co. v. Dennis, 116 U.S. 665 (1886).

[1671] Millsaps College v. Jackson, 275 U.S. 129 (1927).

[1672] Hale v. Iowa State Board of Assessment, 302 U.S. 95 (1937).

[1673] Stone v. Farmers' Loan & Trust Co. (Railroad Commission Cases), 116 U.S. 307, 330 (1886) extended in Southern Pacific Co. v. Campbell, 230 U.S. 537 (1913) to cases in which the word "reasonable" does not appear to qualify the company's right to prescribe tolls. See also American Toll Bridge Co. v. Railroad Com. of California et al., 307 U.S. 486 (1939).

[1674] Georgia R. & Power Co. v. Decatur, 262 U.S. 432 (1923). See also Southern Iowa Electric Co. v. Chariton, 255 U.S. 539 (1921).

[1675] Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 15 (1898).

[1676] Skaneateles Water Works Co. v. Skaneateles, 184 U.S. 354 (1902); Knoxville Water Co. v. Knoxville, 200 U.S. 22 (1906); Madera Water Works v. Madera, 228 U.S. 454 (1913).

[1677] Rogers Park Water Co. v. Fergus, 180 U.S. 624 (1901).

[1678] Home Telephone Co. v. Los Angeles, 211 U.S. 265 (1908); Wyandotte Gas Co. v. Kansas, 231 U.S. 622 (1914).

[1679] See also Puget Sound Traction, Light & P. Co. v. Reynolds, 244 U.S. 574 (1917). "Before we can find impairment of a contract we must find an obligation of the contract which has been impaired. Since the contract here relied upon is one between a political subdivision of a state and private individuals, settled principles of construction require that the obligation alleged to have been impaired be clearly and unequivocally expressed." Justice Black for the Court in Keefe v. Clark, 322 U.S. 393, 396-397 (1944).

[1680] Corporation of Brick Church v. Mayor et al., 5 Cowen (N.Y.) 538, 540 (1826).

[1681] West River Bridge Co. v. Dix, 6 How. 507 (1848). See also Backus v. Lebanon, 11 N.H. 19 (1840); White River Turnpike Co. v. Vermont Cent. R. Co., 21 Vt. 590 (1849); and Bonaparte v. Camden & A.R. Co., 3 Fed. Cas. No. 1,617 (1830); cited in Calvert I, 960-961.

[1682] Pennsylvania Hospital v. Philadelphia, 245 U.S. 20 (1917).

[1683] Illinois Central Railroad v. Illinois, 146 U.S. 387, 453, 455 (1892).

[1684] See pp. 335-336.

[1685] See especially Home of the Friendless v. Rouse, 8 Wall. 430 (1869), and Washington University v. Rouse, 8 Wall. 439 (1869).

[1686] Georgia Railway Co. v. Redwine, 342 U.S. 299, 305-06 (1952). The Court distinguishes In re Ayers, 123 U.S. 443 (1887) on the ground that the action there was barred "as one in substance directed against the State to obtain specific performance of a contract with the State". 342 U.S. 305.

[1687] Stone v. Mississippi, 101 U.S. 814, 820 (1880).

[1688] Butcher's Union Co. v. Crescent City Co., 111 U.S. 746 (1884).

[1689] New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 630 (1885).

[1690] Atlantic Coast Line R. Co. v. Goldsboro, 232 U.S. 548, 558 (1914). See also Chicago & A.R. Co. v. Tranbarger, 238 U.S. 67 (1915); also Pennsylvania Hospital v. Philadelphia, 245 U.S. 20 (1917), where the police power and eminent domain are treated on the same basis in respect of inalienability; also Wabash R. Co. v. Defiance, 167 U.S. 88, 97 (1897); Home Telephone Co. v. Los Angeles, 211 U.S. 265 (1908); and Calvert I, 962.

[1691] Morley v. Lake Shore & M.S.R. Co., 146 U.S. 162 (1892); New Orleans v. New Orleans Waterworks Co., 142 U.S. 79 (1891); Missouri & A. Lumber & Min. Co. v. Greenwood Dist, 249 U.S. 170 (1919). But cf. Livingston v. Moore, 7 Pet. 469, 549 (1833); and Garrison v. New York, 21 Wall. 196, 203 (1875), suggesting that a different view was earlier entertained in the case of judgments in actions of debt.

[1692] Maynard v. Hill, 125 U.S. 190 (1888); Dartmouth College v. Woodward, 4 Wheat. 518, 629 (1819). Cf. Andrews v. Andrews, 188 U.S. 14 (1903). The question whether a wife's rights in the community property under the laws of California were of a contractual nature was raised but not determined in Moffitt v. Kelly, 218 U.S. 400 (1910).

[1693] New Orleans v. New Orleans Waterworks Co., 142 U.S. 79 (1891); Zane v. Hamilton County, 189 U.S. 370, 381 (1903).

[1694] 4 Wheat. 122 (1819). For the first such case in a Federal Circuit Court, see Charles Warren, The Supreme Court in United States History, I, 67 (Boston, 1922).

[1695] 12 Wheat. 213 (1827).

[1696] Ibid. 353-354.

[1697] Von Hoffman v. Quincy, 4 Wall. 535, 552 (1867).

[1698] 1 How. 311 (1843).

[1699] 2 How. 608 (1844).

[1700] Oshkosh Waterworks Co. v. Oshkosh, 187 U.S. 437, 439 (1903); New Orleans & L.R. Co. v. Louisiana, 157 U.S. 219 (1895).

[1701] Antoni v. Greenhow, 107 U.S. 769 (1883).

[1702] The right was unheld in Mason v. Haile, 12 Wheat. 370 (1827); and again in Vial v. Penniman (Penniman's Case), 103 U.S. 714 (1881). On early English and Colonial law touching the subject, see argument of counsel in Sturges v. Crowninshield, 4 Wheat. 122, 140-145 (1819).

[1703] McGahey v. Virginia, 135 U.S. 662 (1890).

[1704] Louisiana ex rel. Ranger v. New Orleans, 102 U.S. 203 (1880).

[1705] Von Hoffman v. Quincy, 4 Wall. 535, 554 (1867).

[1706] Antoni v. Greenhow, 107 U.S. 769, 775.—Illustrations of changes in remedies, which have been sustained, may be seen in the following cases: Jackson ex dem. Hart v. Lamphire, 3 Pet. 280 (1830); Hawkins v. Barney, 5 Pet. 457 (1831); Crawford v. Branch Bank of Alabama, 7 How. 279 (1849); Curtis v. Whitney, 13 Wall. 68 (1872); Cairo & F.R. Co. v. Hecht, 95 U.S. 168 (1877); Terry v. Anderson, 95 U.S. 628 (1877); Tennessee v. Sneed, 96 U.S. 69 (1877); South Carolina v. Gaillard, 101 U.S. 433 (1880); Louisiana v. New Orleans, 102 U.S. 203 (1880); Connecticut Mut. L. Ins. Co. v. Cushman, 108 U.S. 51 (1883); Vance v. Vance, 108 U.S. 514 (1883); Gilfillan v. Union Canal Co., 109 U.S. 401 (1883); Hill v. Merchants' Mut. Ins. Co., 134 U.S. 515 (1890); New Orleans City & Lake R. Co. v. Louisiana, 157 U.S. 219 (1895); Red River Valley Nat. Bank v. Craig, 181 U.S. 548 (1901); Wilson v. Standefer, 184 U.S. 399 (1902); Oshkosh Waterworks Co. v. Oshkosh, 187 U.S. 437 (1903); Waggoner v. Flack, 188 U.S. 595 (1903); Bernheimer v. Converse, 206 U.S. 516 (1907); Henley v. Myers, 215 U.S. 373 (1910); Selig v. Hamilton, 234 U.S. 652 (1914); Security Sav. Bank v. California, 263 U.S. 282 (1923); United States Mortgage Co. v. Matthews, 293 U.S. 232 (1934).

Compare the following cases, where changes in remedies were deemed to be of such a character as to interfere with substantial rights: Wilmington & W.R. Co. v. King, 91 U.S. 3 (1875); Memphis v. United States, 97 U.S. 293 (1878); Poindexter v. Greenhow, 114 U.S. 269, 270, 298, 299 (1885); Effinger v. Kenney, 115 U.S. 566 (1885); Fisk v. Jefferson Police Jury, 116 U.S. 131 (1885); Bradley v. Lightcap, 195 U.S. 1 (1904); Bank of Minden v. Clement, 256 U.S. 126 (1921).

[1707] Von Hoffman v. Quincy, 4 Wall. 535, 554-555 (1867).

[1708] See also Louisiana ex rel. Nelson v. St. Martin's Parish, 111 U.S. 716 (1884).

[1709] Mobile v. Watson, 116 U.S. 289 (1886); Graham v. Folsom, 200 U.S. 248 (1906).

[1710] Heine v. Levee Commissioners, 19 Wall. 655 (1874). Cf. Virginia v. West Virginia, 246 U.S. 565 (1918).

[1711] Faitoute Iron & Steel Co. v. Asbury Park, 316 U.S. 502, 510 (1942). Alluding to the ineffectiveness of purely judicial remedies against defaulting municipalities, Justice Frankfurter says: "For there is no remedy when resort is had to 'devices and contrivances' to nullify the taxing power which can be carried out only through authorized officials. See Rees v. City of Watertown, 19 Wall. 107, 124 (1874). And so we have had the spectacle of taxing officials resigning from office in order to frustrate tax levies through mandamus, and officials running on a platform of willingness to go to jail rather than to enforce a tax levy (see Raymond, State and Municipal Bonds, 342-343), and evasion of service by tax collectors, thus making impotent a court's mandate. Yost v. Dallas County, 236 U.S. 50, 57 (1915)." 316 U.S. at 511.

[1712] Myers v. Irwin, 2 Sergeant and Rawle's (Pa.), 367, 371 (1816); also, to same effect, Lindenmuller v. The People, 33 Barbour (N.Y.), 548 (1861). See also Brown v. Penobscot Bank, 8 Mass. 445 (1812).

[1713] Manigault v. Springs, 199 U.S. 473, 480 (1905).

[1714] Jackson v. Lamphire, 3 Pet. 280 (1830). See also Phalen v. Virginia, 8 How. 163 (1850).

[1715] Stone v. Mississippi, 101 U.S. 814 (1880).

[1716] Boston Beer Co. v. Massachusetts, 97 U.S. 25 (1878).

[1717] New York C.R. Co. v. White, 243 U.S. 188 (1917). In this and the preceding two cases the legislative act involved did not except from its operation existing contracts.

[1718] Manigault v. Springs, 199 U.S. 473 (1905).

[1719] Portland Railway, Light & Power Co. v. Railroad Comm. of Oregon, 229 U.S. 397 (1913).

[1720] Midland Realty Co. v. Kansas City Power & Light Co., 300 U.S. 109 (1937).

[1721] Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908).

[1722] Brown (Marcus) Holding Co. v. Feldman, 256 U.S. 170, 198 (1921); followed in Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922).

[1723] Chastleton Corp. v. Sinclair, 264 U.S. 543, 547-548 (1924).

[1724] 290 U.S. 398 (1934).

[1725] Ibid. 442, 444. See also Veix v. Sixth Ward Building and Loan Assn. of Newark, 310 U.S. 32 (1940) in which was sustained a New Jersey statute, amending, in view of the Depression, the law governing building and loan associations. The authority of the State to safeguard the vital interests of the people, said Justice Reed, "is not limited to health, morals and safety. It extends to economic needs as well." Ibid. 38-39.

[1726] See especially Edwards v. Kearzey, 96 U.S. 595 (1878); and Barnitz v. Beverly, 163 U.S. 118 (1896).

[1727] 290 U.S. 398 (1934). As to conditions surrounding the enactment of moratorium statutes in 1933, see New York Times of January 22, 1933, sec. II, pp. 1-2.

[1728] Worthen Co. v. Thomas, 292 U.S. 426 (1934); Worthen Co. v. Kavanaugh, 295 U.S. 56 (1935).

[1729] 295 U.S. at 62.

[1730] East New York Savings Bank v. Hahn, 326 U.S. 230, 235 (1945).

[1731] Honeyman v. Jacobs, 306 U.S. 539 (1939). See also Gelfert v. National City Bank, 313 U.S. 221 (1941).

[1732] 313 U.S. at 233-234.

[1733] One reason for this is indicated in the following passage from Justice Field's opinion for the Court in Paul v. Virginia, decided in 1869: "At the present day corporations are multiplied to an almost indefinite extent. There is scarcely a business pursued requiring the expenditure of large capital, or the union of large numbers, that is not carried on by corporations. It is not too much to say that the wealth and business of the country are to a great extent controlled by them." 8 Wall. 168, 181-182.

[1734] Wright, The Contract Clause, 91-100.

[1735] Perry v. United States, 294 U.S. 330 (1935); Louisville Joint Stock Bank v. Radford, 295 U.S. 555 (1935). The Court has pointed out, what of course, is evident on a reading of the Constitution, that the contract clause is a limitation on the powers of the States and not of the United States. Central P.R. Co. v. Gallatin (Sinking Fund Cases), 99 U.S. 700, 718 (1879). See also Mitchell v. Clark, 110 U.S. 633, 643 (1884); Legal Tender Cases, 12 Wall. 457, 529 (1871); Continental Ill. Nat. Bank & Trust Co. v. Chicago, R.I. & P.R. Co., 294 U.S. 648 (1935); St. Anthony Falls Water Power Co. v. Board of Water Commissioners, 168 U.S. 349, 372 (1897); Dubuque, S.C.R. Co. v. Richmond, 19 Wall. 584 (1874); New York v. United States, 257 U.S. 591 (1922). Cf. however, Hepburn v. Griswold, 8 Wall. 603, 623 (1870); and Central Pacific R.R. Co. v. Gallatin (Sinking Fund Cases), 99 U.S. 700, 737 (1879).

[1736] See, e.g., Neblett et al. v. Carpenter, et al., 305 U.S. 297 (1938); Asbury Hospital v. Cass County, 326 U.S. 207 (1945); Connecticut Mutual L. Ins. Co. v. Moore, 333 U.S. 541 (1948). For a notable case in which the obligations clause was mustered into service, by rather heroic logic, to do work that was afterwards put upon the due process clause, see State Tax On Foreign-Held Bonds, 15 Wall. 300 (1873).

[1737] Hooven & Allison Co. v. Evatt, 324 U.S. 652, 673 (1945).

[1738] Woodruff v. Parham, 8 Wall. 123 (1869).

[1739] 12 Wheat. 419 (1827).

[1740] Ibid. 441.

[1741] May & Co. v. New Orleans, 178 U.S. 496, 502 (1900).

[1742] Ibid. 501; Gulf Fisheries Co. v. MacInerney, 276 U.S. 124 (1928); McGoldrick v. Gulf Oil Corp., 309 U.S. 414 (1940).

[1743] Low v. Austin, 13 Wall. 29 (1872); May & Co. v. New Orleans, 178 U.S. 496 (1900).

[1744] Hooven & Allison Co. v. Evatt, 324 U.S. 652, 667 (1945).

[1745] Ibid. 664.

[1746] Canton R. Co. v. Rogan, 340 U.S. 511 (1951).

[1747] Brown v. Maryland, 12 Wheat. 419, 447 (1827).

[1748] Anglo-Chilean Nitrate Sales Corp. v. Alabama, 288 U.S. 218 (1933).

[1749] Low v. Austin, 13 Wall. 29, 33 (1872).

[1750] Cook v. Pennsylvania, 97 U.S. 566, 573, (1878).

[1751] Crew Levick Co. v. Pennsylvania, 245 U.S. 292 (1917).

[1752] Cooley v. Board of Port Wardens, 12 How. 299, 313 (1851).

[1753] Waring v. Mobile, 8 Wall. 110, 122 (1869). See also Pervear v. Massachusetts, 5 Wall. 475, 478 (1867); Schollenberger v. Pennsylvania, 171 U.S. 1, 24 (1898).

[1754] Gulf Fisheries Co. v. MacInerney, 276 U.S. 124 (1928).

[1755] Nathan v. Louisiana, 8 How. 73, 81 (1850).

[1756] Mager v. Grima, 8 How. 490 (1850).

[1757] Brown v. Maryland, 12 Wheat. 419, 441 (1827); Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945).

[1758] New York ex rel. Burke v. Wells, 208 U.S. 14 (1908).

[1759] Selliger v. Kentucky, 213 U.S. 200 (1909); cf. Almy v. California, 24 How. 169, 174 (1861).

[1760] Bowman v. Chicago & N.W.R. Co., 125 U.S. 465, 488 (1888).

[1761] 107 U.S. 38 (1883).

[1762] Ibid. 55.

[1763] Patapsco Guano Co. v. North Carolina Bd. of Agriculture, 171 U.S. 345, 301 (1898). For a discussion of the limitations on State power to pass inspection laws resulting from the commerce clause, see pp. 183, 237.

[1764] Bowman v. Chicago & N.W.R. Co., 125 U.S. 465, 488-489 (1888).

[1765] Clyde Mallory Lines v. Alabama ex rel. State Docks Commission, 296 U.S. 261, 265 (1935); Cannon v. New Orleans, 20 Wall. 577, 581 (1874); Wheeling, P. & C. Transportation Co. v. Wheeling, 99 U.S. 273, 283 (1879).

[1766] Keokuk Northern Line Packet Co. v. Keokuk, 95 U.S. 80 (1877); Parkersburg & Ohio River Transportation Co. v. Parkersburg, 107 U.S. 691 (1883); Ouachita Packet Co. v. Aiken, 121 U.S. 444 (1887).

[1767] Cooley v. Board of Port Wardens, 12 How. 299, 314 (1851); Ex parte McNiel, 13 Wall. 236 (1872); Inman Steamship Co. v. Tinker, 94 U.S. 238, 243 (1877); Northwestern Union Packet Co. v. St. Louis, 100 U.S. 423 (1880); Vicksburg v. Tobin, 100 U.S. 430 (1880); Cincinnati, P.B.S. & P. Packet Co. v. Catlettsburg, 105 U.S. 559 (1882).

[1768] Huse v. Glover, 119 U.S. 543, 549 (1886).

[1769] Southern S.S. Co. v. Portwardens, 6 Wall. 31 (1867).

[1770] Peete v. Morgan, 19 Wall. 581 (1874).

[1771] Morgan's L. & T.R. & S.S. Co. v. Board of Health, 118 U.S. 455, 462 (1886).

[1772] Wiggins Ferry Co. v. East St. Louis, 107 U.S. 365 (1883). See also Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 212 (1885); Philadelphia & S. Mail Steamship Co. v. Pennsylvania, 122 U.S. 326, 338 (1887); Osborne v. Mobile, 16 Wall. 479, 481 (1873).

[1773] Cox v. Lott (State Tonnage Tax Cases), 12 Wall. 204, 217 (1871).

[1774] Luther v. Borden, 7 How. 1, 45 (1849).

[1775] Presser v. Illinois, 116 U.S. 252 (1886).

[1776] Poole v. Fleeger, 11 Pet 185, 209 (1837).

[1777] Hinderlider v. La Plata Co., 304 U.S. 92, 104 (1938).

[1778] Frankfurter and Landis, The Compact Clause of the Constitution—A Study in Interstate Adjustments, 34 Yale Law Journal, 685, 691 (1925).

[1779] Article IX.

[1780] Article VI.

[1781] 14 Pet. 540 (1840).

[1782] Ibid. 570, 571, 572.

[1783] 148 U.S. 503, 518 (1893). See also Stearns v. Minnesota, 179 U.S. 223, 244 (1900); also reference in next note, at pp. 761-762.

[1784] See Leslie W. Dunbar, Interstate Compacts and Congressional Consent, 36 Virginia Law Review, 753 (October, 1950).

[1785] Frankfurter and Landis, The Compact Clause of the Constitution—A Study in Interstate Adjustments, 34 Yale Law Journal, 685, 735 (1925); Frederick L. Zimmerman and Mitchell Wendell, Interstate Compacts Since 1925 (1951), 8 Book of States, 26 (1950-1951).

[1786] 48 Stat. 909 (1934).

[1787] 8 Book of the States, 45 (1950-1951).

[1788] 7 U.S.C. Sec. 515; 15 U.S.C. Sec. 717j; 16 U.S.C. Sec. 552, 667a; 33 U.S.C. Sec. 11, 567-567b.

[1789] Green v. Biddle, 8 Wheat. 1, 85 (1823).

[1790] Virginia v. Tennessee, 148 U.S. 503 (1893).

[1791] Virginia v. West Virginia, 11 Wall. 39 (1871).

[1792] Wharton v. Wise, 153 U.S. 155, 173 (1894).

[1793] James v. Dravo Contracting Co., 302 U.S. 134 (1937). See also Arizona v. California, 292 U.S. 341, 315 (1934).

[1794] 332 U.S. 631 (1948).

[1795] On the activities of the Board, in which representatives of both races participate and from which both races have benefited, see Remarks of Hon. Spessard L. Holland of Florida. Cong. Rec., 81st Cong., 2d sess., v. 96, p. 465-470.

[1796] Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 433 (1856).

[1797] St. Louis & S.F.R. Co. v. James, 161 U.S. 545, 562 (1896).

[1798] Poole v. Fleeger, 11 Pet. 185, 209 (1837); Rhode Island v. Massachusetts, 12 Pet. 657, 725 (1838).

[1799] Hinderlider v. La Plata Co., 304 U.S. 92, 104, 106 (1938).

[1800] Green v. Biddle, 8 Wheat. 1, 13 (1823); Virginia v. West Virginia, 246 U.S. 565 (1918). See also Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518, 566 (1852); Olin v. Kitzmiller, 259 U.S. 260 (1922).

[1801] Virginia v. West Virginia, 246 U.S. 565, 601 (1918).

[1802] Dyer v. Sims, 341 U.S. 22 (1951). The case stemmed from mandamus proceedings brought to compel the auditor of West Virginia to pay out money to a commission which had been created by a compact between West Virginia and other States to control pollution of the Ohio River. The decision of the Supreme Court of Appeals of West Virginia denying mandamus was reversed by the Supreme Court, and the case remanded. The opinion of the Court, by Justice Frankfurter, reviews and revises the West Virginia Court's interpretation of the State constitution, thereby opening up, temporarily at least, a new field of power for judicial review. Justice Reed, challenging this extension of judicial review, thought the issue determined by the Supremacy Clause. Justice Jackson urged that the compact power was "inherent in sovereignty" and hence was limited only by the requirement of congressional consent. Justice Black concurred in the result without opinion.



ARTICLE II

EXECUTIVE DEPARTMENT

Section 1. The President: Page Clause 1. Powers and term of the President 377 Nature and scope of Presidential power 377 Contemporary source of the Presidency 377 Presidency in the federal convention 378 Executive power; Hamilton's contribution 378 Myers case 379 Curtiss-Wright case 380 Theory of the Presidential office 380 Term of four years 382 Anti-third term tradition 382 Clauses 2, 3, 4, 5, 6, 7, and 8. Election, qualifications, succession, compensation, and oath of the President 383 Maintenance of the office of President 384 "Electoral college" 384 Constitutional status of electors 385 "Natural-born citizen" 386 Presidential succession 387 Act of 1792 387 Acts of 1886 and 1947 388 Compensation and emoluments 388 Oath of office 388 Effect of the oath 389 Section 2. Powers and duties of the President 389 Clause 1. Commander in chiefship; opinions from heads of departments; pardons 389 Commander in chiefship 389 Historical 389 Prize cases 390 Impact of the Prize cases on World Wars I and II 391 Presidential theory of the commander in chiefship in World War II 392 Presidential war agencies 393 Constitutional status of Presidential agencies 394 West Coast Japanese 394 Act of March 21, 1942 395 Presidential government of labor relations 395 "Sanctions" 397 Constitutional basis of sanctions 397 Martial law and constitutional limitations 398 Martial law in Hawaii 400 Case of the Nazi saboteurs 401 War crimes cases 402 President as commander of the forces 403 Commander in chief a civilian officer 404 Presidential advisers 405 The Cabinet 405 Pardons and reprieves 406 Legal nature of a pardon 406 Qualification of above theory 407 Scope of the power 408 "Offenses against the United States"; contempt of court 408 Effects of a pardon: Ex parte Garland 409 Limits to the efficacy of a pardon 410 Congress and Amnesty 411 Clauses 2 and 3. Treaties and appointment of officers 412 Treaty-making power 412 President and Senate 412 Negotiation a Presidential monopoly 412 Treaties as law of the land 413 Origin of the conception 414 Treaty rights versus State power 415 Recent cases 417 When is a treaty self-executing; when not 417 Constitutional freedom of Congress with respect to treaties 418 Treaty-making power and revenue laws 419 Congressional repeal of treaties 420 Treaties versus prior acts of Congress 421 Interpretation and termination of treaties as international compacts 423 Termination of treaties by notice 423 Determination whether a treaty has lapsed 425 Status of a treaty a political question 426 Treaties and the "necessary and proper" clause 426 Constitutional limits of the treaty-making power: Missouri v. Holland 428 Indian treaties 431 Present status of Indian treaties 432 International Agreements without Senate approval 433 Routine executive agreements 433 Law-making executive agreements 434 President McKinley's contribution 435 Executive agreements affecting Far Eastern Relations 436 International obligation of executive agreements 436 Litvinov agreement of 1933 437 United States v. Belmont 437 United States v. Pink; National supremacy 438 Hull-Lothian agreement, 1940 439 War-time agreements 440 Executive agreements by authorization of Congress 441 Reciprocal trade agreements 441 Constitutionality of trade agreements 442 Lend-Lease Act 443 President plus Congress versus Senate 443 Arbitration agreements 444 Agreements under the United Nations Charter 444 United Nations Participation Act 445 Executive establishment 445 "Office" 445 "Ambassadors and other public ministers" 445 Presidential diplomatic agents 447 Congressional regulation of offices 449 Conduct in office 450 The loyalty issue 451 Legislation increasing duties of an officer 452 "Inferior officers"; "employees" 452 Stages of appointment process 453 Nomination 453 Senate approval 453 When Senate consent is complete 453 Commissioning the officer 454 Recess appointments 455 Ad interim designations 455 Removal power; Myers case 455 "Nature of the office" concept 458 Humphrey case 458 Other phases of the removal power 459 Presidential aegis 460 Section 3. Legislative, diplomatic, and law enforcement duties of the President 462 Legislative role of the President 462 Right of Reception 463 Scope of the power 463 A Presidential monopoly 464 "The Logan Act" 464 A formal or a formative power 465 President's diplomatic role 465 Jefferson's real position 466 Power of recognition 467 The case of Cuba 468 Power of nonrecognition 469 President and Congress 470 Congressional implementation of Presidential policies 471 Doctrine of political questions 471 Recent statements of the doctrine 473 The President as law enforcer 475 Types of executive power 475 How the President's own powers are exercised 476 Power and duty of the President in relation to subordinate executive officers 478 Administrative Decentralization v. Jacksonian Centralism 478 Congressional Power v. Presidential Duty to the Law 479 Myers Case v. Humphrey Case 480 Power of the President to guide enforcement of the penal law 481 President as law interpreter 481 Military power in law enforcement: the posse comitatus 482 Suspension of Habeas Corpus by President 484 Preventive martial law 484 Debs case 484 Status of the Debs case, today 485 President's duty in cases of domestic violence 486 President as executive of the law of nations 486 Protection of American rights of person and property abroad 487 Presidential world policing 488 The Atlantic Pact 488 Presidential action in the domain of Congress: Steel Seizure Case 489 Presidential immunity from judicial direction 499 President's subordinates and the courts 500 Section 4. Impeachment 501 Impeachment 501 "Civil" officer 501 "High crimes and misdemeanors" 502 Chase impeachment 502 Johnson impeachment 503 Later impeachments 503

EXECUTIVE DEPARTMENT

Article II

Section 1: The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

The Nature and Scope of Presidential Power

CONTEMPORARY SOURCE OF THE PRESIDENCY

The immediate source of article II was the New York constitution of 1777,[1] of which the relevant provisions are the following: "Art. XVIII. * * * The governor * * * shall by virtue of his office, be general and commander in chief of all the militia, and admiral of the navy of this state; * * * he shall have power to convene the assembly and senate on extraordinary occasions; to prorogue them from time to time, provided such prorogations shall not exceed sixty days in the space of any one year; and, at his discretion, to grant reprieves and pardons to persons convicted of crimes, other than treason and murder, in which he may suspend the execution of the sentence, until it shall be reported to the legislature at their subsequent meeting; and they shall either pardon or direct the execution of the criminal, or grant a further reprieve.

"Art. XIX. * * * It shall be the duty of the governor to inform the legislature at every session of the condition of the State so far as may concern his department; to recommend such matters to their consideration as shall appear to him to concern its good government, welfare, and prosperity; to correspond with the Continental Congress and other States; to transact all necessary business with the officers of government, civil and military; to take care that the laws are executed to the best of his ability; and to expedite all such measures as may be resolved upon by the legislature.

"To these, of course, are to be added the important powers of qualified appointment and qualified veto. It is to be observed also that there is no question of the interposition of the law of the land to regulate these powers. They are the governor's, by direct grant of the people, and his alone. Another distinguishing characteristic, equally important, is the fact that the governor was to be chosen by a constitutionally defined electorate, not by the legislature. He was also to have a three-year term, and there were to be no limitations on his re-eligibility to office. In short, all the isolated principles of executive strength in other constitutions were here brought into a new whole. Alone they were of slight importance; gathered together they gain new meaning. And, in addition, we have new elements of strength utilized for the first time on the American continent."[2] The appellation "President" appears to have been suggested to the Federal Convention by Charles Pinckney,[3] to whom it may have been suggested by the title at that date of the chief magistrate of Delaware.

THE PRESIDENCY IN THE FEDERAL CONVENTION

The relevant clause in the Report from the Committee of Detail of August 6, 1787 to the Federal Convention read as follows: "The Executive Power of the United States shall be vested in a single person. His stile shall be 'The President of the United States of America'; and his title shall be 'His Excellency.'"[4] This language recorded the decision of the Convention, sitting in committee of the whole, that the national executive power should be vested in a single person, not a body. For the rest, it is a simple designation of office. The final form of the clause came from the Committee of Style,[5] and was never separately acted on by the Convention.

"EXECUTIVE POWER"; HAMILTON'S CONTRIBUTION

Is this term a summary description merely of the powers which are granted in more specific terms in succeeding provisions of article II, or is it also a grant of powers; and if the latter, what powers specifically does it comprise? In the debate on the location of the removal power in the House of Representatives in 1789[6] Madison and others urged that this was "in its nature" an "executive power";[7] and their view prevailed so far as executive officers appointed without stated term by the President, with the advice and consent of the Senate, were concerned. Four years later Hamilton, in defending President Washington's course in issuing a Proclamation of Impartiality upon the outbreak of war between France and Great Britain, developed the following argument: "The second article of the Constitution of the United States, section first, establishes this general proposition, that 'the Executive Power shall be vested in a President of the United States of America.' The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, and to take care that the laws be faithfully executed. It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the senate in the appointment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties. The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are, 'All legislative powers herein granted shall be vested in a congress of the United States.' In that which grants the executive power, the expressions are, 'The executive power shall be vested in a President of the United States.' The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government. The general doctrine of our Constitution then is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument."[8]

THE MYERS CASE

These enlarged conceptions of the executive power clause have been ratified by the Supreme Court within recent times. In the Myers case,[9] decided in 1926, not only was Madison's contention as to the location of the removal power adopted, and indeed extended, but Hamilton's general theory as to the proper mode of construing the clause was unqualifiedly endorsed. Said Chief Justice Taft, speaking for the Court: "The executive power was given in general terms, strengthened by specific terms where emphasis was regarded as appropriate, and was limited by direct expressions where limitation was needed, * * *"[10]

THE CURTISS-WRIGHT CASE

Ten years later Justice Sutherland, speaking for the Court in United States v. Curtiss-Wright Corporation,[11] joined Hamilton's conception of the President's role in the foreign relations field to the conception that in this field the National Government is not one of enumerated but of inherent powers;[12] and the practical conclusion he drew was that the constitutional objection to delegation of legislative power does not apply to a delegation by Congress to the President of its "cognate" powers in this field; that, in short, the merged powers of the two departments may be put at the President's disposal whenever Congress so desires.[13]

Nor is it alone in the field of foreign relations that the opening clause of article II has promoted latitudinarian conceptions of Presidential power. Especially has his role as "Commander in Chief in wartime" drawn nourishment from the same source, in recent years. The matter is treated in later pages.[14]

THEORY OF THE PRESIDENTIAL OFFICE

The looseness of the grants of power to the President has been more than once the subject of animadversion.[15] This and the unity of the office furnished a text for opponents of the Constitution while its ratification was pending. "Here," according to Hamilton, writing in The Federalist, "the writers against the Constitution, seem to have taken pains to signalize their talent of misrepresentation."[16] Once the Constitution was adopted, however, the tables were turned, and some members of the first Congress, including certain former members of the Federal Convention, sought to elaborate the monarchical aspects of the office. They would fain give him a title, His Excellency (already applied in several States to the governors thereof), Highness, Elective Majesty, being suggestions. Ellsworth of Connecticut wished to see his name or place inserted in the enacting clause of statutes. They contrived to make a ceremony of the President's appearances before Congress, his annual address to which, given in person, was answered by a reply equally formal.[17] They sought to enact that "all writs and processes, issuing out of the Supreme or circuit courts shall be in the name of the President of the United States." Although the attempt failed, owing to opposition in the House, the idea was adopted by the Supreme Court itself in its first term, that of February 1790, when it "ordered, That (unless, and until, it shall be otherwise provided by law) all process of this court shall be in the name of 'the President of the United States,'"[18] and it has never been otherwise provided by law. Meantime, on October 3, 1789, President Washington had, at the request of a joint committee of "both Houses of Congress," issued the first Thanksgiving Proclamation.[19]

The "revolution of 1800" was, in the opinion of its principal author, a revolution against monarchical tendencies, and making a virtue of the fact that he was a bad public speaker, Jefferson, in a symbolic gesture, substituted the written message for the presidential address. But the claims of the presidential office to power Jefferson in no wise abated,[20] although Marshall had predicted that he would;[21] to the contrary he in some respects enlarged upon them. After his day, however, the office passed into temporary eclipse behind its own creature, the Cabinet,[22] an ignominy from which Andrew Jackson rescued it. As "the People's Choice," as all by himself "one of the three equal departments of government,"[23] as the leader of his party, as the embodiment of the unity of the country,[24] Jackson stamped upon the Presidency the outstanding features of its final character, thereby reviving, in the opinion of Henry Jones Ford, "the oldest political institution of the race, the elective Kingship."[25] The modern theory of Presidential power was the contribution primarily of Alexander Hamilton; the modern conception of the Presidential office was the contribution primarily of Andrew Jackson and his times.

"THE TERM OF FOUR YEARS"

Formerly the term of four years during which the President "shall hold office" was reckoned from March 4 of the alternate odd years beginning with 1789. This came about from the circumstance that under the act of September 13, 1788, of "the Old Congress," the first Wednesday in March, which was March 4, 1789, was fixed as the time for commencing proceedings under the said Constitution. Although as a matter of fact Washington was not inaugurated until April 30 of that year, by an act approved March 1, 1792, it was provided that the presidential term should be reckoned from the fourth day of March next succeeding the date of election. And so things stood until the adoption of the Twentieth Amendment by which the terms of the President and Vice President end at noon on the 20th of January.[26]

THE ANTI-THIRD TERM TRADITION

The prevailing sentiment of the Philadelphia Convention favored the indefinite eligibility of the President. It was Jefferson who raised the objection that indefinite eligibility would in fact be for life and degenerate into an inheritance. Prior to 1940 the idea that no President should hold for more than two terms was generally thought to be a fixed tradition, although some quibbles had been raised as to the meaning of the word "term". President Franklin D. Roosevelt's violation of the tradition led to the proposal by Congress on March 24, 1947, of an amendment to the Constitution to rescue the tradition by embodying it in the Constitutional Document. The proposal became a part of the Constitution on February 27, 1951, in consequence of its adoption by the necessary thirty-sixth State, which was Minnesota. See pp. 54, 1236.[Transcriber's Note: Page 1236 is blank.][27]

Clause 2. Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Clause 3. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

Clause 4. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

Clause 5. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

Clause 6. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

Clause 7. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Clause 8. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Maintenance of the Office of President

"THE ELECTORAL COLLEGE"

The word "appoint" is used in clause 2 "as conveying the broadest power of determination."[28] This power has been used. "Therefore, on reference to contemporaneous and subsequent action under the clause, we should expect to find, as we do, that various modes of choosing the electors were pursued, as, by the legislature itself on joint ballot; by the legislature through a concurrent vote of the two houses; by vote of the people for a general ticket; by vote of the people in districts; by choice partly by the people voting in districts and partly by legislature; by choice by the legislature from candidates voted for by the people in districts; and in other ways, as, notably, by North Carolina in 1792, and Tennessee in 1796 and 1800. No question was raised as to the power of the State to appoint, in any mode its legislature saw fit to adopt, and none that a single method, applicable without exception, must be pursued in the absence of an amendment to the Constitution. The district system was largely considered the most equitable, and Madison wrote that it was that system which was contemplated by the framers of the Constitution, although it was soon seen that its adoption by some States might place them at a disadvantage by a division of their strength, and that a uniform rule was preferable."[29] In the Federal Convention James Wilson had proposed that the Electors be "taken by lot from the national Legislature," but the suggestion failed to come to a vote.[30]

CONSTITUTIONAL STATUS OF ELECTORS

Dealing with the question of the constitutional status of the Electors, the Court said in 1890: "The sole function of the presidential electors is to cast, certify and transmit the vote of the State for President and Vice President of the nation. Although the electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are the members of the State legislatures when acting as electors of federal senators, or the people of the States when acting as electors of representatives in Congress. * * * In accord with the provisions of the Constitution, Congress has determined the time as of which the number of electors shall be ascertained, and the days on which they shall be appointed and shall meet and vote in the States, and on which their votes shall be counted in Congress; has provided for the filling by each State, in such manner as its legislature may prescribe, of vacancies in its college of electors; and has regulated the manner of certifying and transmitting their votes to the seat of the national government, and the course of proceeding in their opening and counting them."[31] The truth of the matter is that the Electors are not "officers" at all, by the usual tests of office.[32] They have neither tenure nor salary, and having performed their single function they cease to exist as Electors. This function is, moreover, "a federal function,"[33] their capacity to perform which results from no power which was originally resident in the States, but springs directly from the Constitution of the United States.[34] In the face, therefore, of the proposition that Electors are State officers, the Court has upheld the power of Congress to protect the right of all citizens who are entitled to vote to lend aid and support in any legal manner to the election of any legally qualified person as a Presidential Elector;[35] and more recently its power to protect the choice of Electors from fraud or corruption.[36] "'If this government,' said the Court, 'is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption. If it has not this power it is left helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption.'"[37] The conception of Electors as State officers is still, nevertheless, of some importance, as was shown in the recent case of Ray v. Blair,[38] which is dealt with in connection with Amendment XII.[39]

"NATURAL-BORN" CITIZEN

Clause 3 of this section, while requiring that the Electors each vote for two persons, did not require them to distinguish their choices for President and Vice President, the assumption being that the Vice President would be the runner-up of the successful candidate for President. As a result of this arrangement the election of 1800 produced a dangerous tie between Jefferson and Burr, the candidates of the Republican-Democrat Party for President and Vice President respectively. Amendment XII, which was adopted in 1803 and replaces clause 3, makes a recurrence of the 1800 contretemps impossible. See pp. 941-942. Clause 4 testifies still further to the national character of Presidential Electors. Clause 5 is today chiefly of historical interest, all Presidents since, and including Martin Van Buren, except his immediate successor, William Henry Harrison, having been born in the United States subsequently to the Declaration of Independence. The question, however, has been frequently mooted, whether a child born abroad of American parents is "a natural-born citizen" in the sense of this clause. The answer depends upon whether the definition of "citizens of the United States" in section I of Amendment XIV is to be given an exclusive or inclusive interpretation. See pp. 963-964.

PRESIDENTIAL SUCCESSION

Was it the thought of the Constitution that a Vice President, in succeeding to "the powers and duties" of the office of President, should succeed also to the title? In answering this question in the affirmative in 1841, John Tyler established a precedent which has been followed ever since; but inasmuch as all successions have taken place in consequence of the death in office of a President, the precedent would not necessarily hold in the case of a succession on account of the temporary inability of the incumbent President. Nor has any procedure been established for determining the question of inability, with the result that in the two instances of disability which have occurred, those of Presidents Garfield and Wilson, the former continued in office until his death and the other, after his partial recovery, till the end of his term.

The Act of 1792

In pursuance of its power to provide for the disappearance, whether permanently or temporarily, from the scene of both President and Vice President, Congress has passed three Presidential Succession Acts. A law enacted March 1, 1792[40] provided for the succession first of the President pro tempore of the Senate and then of the Speaker; but in the event that both of these offices were vacant, then the Secretary of State was to inform the executive of each State of the fact and at the same time give public notice that Electors will be appointed in each State to elect a President and Vice President, unless the regular time of such election was so near at hand as to render the step unnecessary. It is unlikely that Congress ever passed a more ill-considered law. As Madison pointed out at the time, it violated the principle of the Separation of Powers and flouted the probability that neither the President pro tempore nor the Speaker is an "officer" in the sense of this paragraph of the Constitution. It thus contemplated the possibility of there being nobody to exercise the powers of the President for an indefinite period, and at the same time set at naught, by the provision made for an interim presidential election, the synchrony evidently contemplated by the Constitution in the choice of a President with a new House of Representatives and a new one-third of the Senate. Yet this inadequate enactment remained on the statute book for nearly one hundred years, becoming all the time more and more unworkable from obsolescence. One provision of it, moreover, still survives, that which ordains that the only evidence of refusal to accept, or of resignation from the office of President or Vice President, shall be an instrument in writing declaring the same and subscribed by the person refusing to accept, or resigning, as the case may be, and delivered into the office of the Secretary of State.[41]

The Acts of 1886 and 1947

By the Presidential Succession Act of January 19, 1886,[42] recently repealed, Congress provided that, in case of the disqualification of both President and Vice President, the Secretary of State should act as President provided he possessed the qualifications laid down in clause 5, above; if not, then the Secretary of the Treasury, etc. The act apparently assumed that while a member of the Cabinet acted as President he would retain his Cabinet post. The Succession Act now in force was urged by President Truman, who argued that it was "undemocratic" for a Vice President who had succeeded to the Presidency to be able to appoint his own successor. By the act of July 18, 1947[43] the Speaker of the House and the President pro tempore of the Senate are put ahead of the members of the Cabinet in the order of succession, but when either succeeds he must resign both his post and his seat in Congress; and a member of the Cabinet must in the like situation resign his Cabinet post. The new act also implements Amendment XX by providing for vacancies due to failure to qualify of both a newly elected President and Vice President.

COMPENSATION AND EMOLUMENTS

Clause 7 may be advantageously considered in the light of what has been determined as to the application of the parallel provision regarding judicial salaries. See pp. 530-531.[44]