act in arresting and imprisoning Patrie was by the order of the President, but at the trial evidence in support of the plea was not introduced.

§ 654. A verdict was rendered for the plaintiff and judgment was entered thereon.

A writ of error was issued to the Supreme Court of the Third District of New York to remove the cause to the Circuit Court of the United States for the Southern District of New York.

The State Court made no return to the writ.

§ 655. The writ of error to the State Court rested upon the fifth section of the statute relating to habeas corpus passed March 3, 1863. (12 Stat. 755.)

§ 656. By that section authority was given for the transfer from a State Court to a Court of the United States, of any suit commenced against a public officer for any arrest or imprisonment made during the then present rebellion, at any time within six months after rendition of judgment in a State Court.

Upon the refusal of the State Court to make a return, an alternative mandamus was issued by the Circuit Court to which a return was made.

§ 657. After pleadings and hearing, a peremptory mandamus was issued by the Circuit Court. From this judgment a writ of error was taken to the Supreme Court. put at issue the constitutionality of the fifth section of the statute of 1863.

Thus was

§ 658. In the opinion given by Mr. Justice Nelson, this language is used: "It must be admitted that, according to the constructions uniformly given to the first clause of this amendment, the suits there mentioned are confined to those in the Federal Courts; and the argument is, perhaps, more than plausible, which is that the words, and no fact tried. by a jury,' mentioned in the second, relate to the trial by jury as provided in the previous clause. the view that has been taken of it by this

But this is not Court." After

citing opinions of the Court the justice proceeds: "The Seventh Amendment could not be invoked in a State Court to prohibit from re-examining, on a writ of error, facts that had been tried by a jury in the Court below. . . . The question is not whether the limitation in the amendment has any effect as to the powers of an Appellate State Court, but what is its effect upon the powers of the Federal Appellate Court."

§ 659. The conclusion was reached that when a case was before the Supreme Court as an Appellate Court from a State Court the injunction of the amendment was operative upon the Court, and hence the decree in these words:

§ 660. "So much of the fifth section of the Act of Congress of March 3, 1863, entitled An act relating to habeas corpus, and regulating proceedings in certain cases,' as provides for the removal of a judgment in a State Court, and in which the cause was tried by a jury, to the Circuit Court of the United States, for a re-trial on the facts and law, is not in pursuance of the Constitution, and is void." (The Justices v. Murray, 9 Wall. 274.)

§ 661. Again, in the case of Edwards v. Elliott (21 Wall. 532), the doctrine is re-stated that the Seventh Amendment does not relate to trials in State Courts. (p. 557.)

CHAPTER LVIII.

LIMITATIONS ON THE POWERS OF COURTS TO INFLICT

PUNISHMENTS.

ART. 8.

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

§ 662. Under the laws of Massachusetts, one Pervear was indicted for keeping and maintaining, without a license, a tenement for the illegal sale and illegal keeping of intoxicating liquors.

§ 663. At the trial the defendant pleaded a license from the United States, under the internal revenue system, and also that the penalty imposed by the statute for the acts charged was "cruel and unusual."

§ 664. Upon a review of the proceedings, the Supreme Court said that the Eighth Amendment had reference solely to proceedings in the Courts of the United States, but that, if it were otherwise, the penalty of a fine of fifty dollars and imprisonment for the term of three months in the House of Correction, the penalty imposed upon Pervear, was neither excessive, cruel nor unusual. (Pervear v. Commonwealth, 5 Wall. 475.)

374

CHAPTER LIX.

AS TO THE RESERVATION OF POWERS TO THE STATES AND TO THE PEOPLE.

ART. 10.1

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

§ 665. In dealing with this article, Mr. Justice Story, speaking for the Court, has said: "The Constitution was not, therefore, necessarily carved out of existing State sovereignties, nor a surrender of powers already existing in State institutions, for the powers of the States depend upon their own constitutions; and the people of every State had the right to modify and restrain them, according to their own views of policy or principle. On the other hand, it is perfectly clear that the sovereign powers vested in the State governments, by their respective constitutions, remain unaltered and unimpaired, except so far as they were granted to the government of the United States.

§ 666. "These deductions do not rest upon general reasoning, plain and obvious as they seem to be. They have been positively recognized by one of the articles of amendment to the Constitution which declares that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.

66

§ 667. The government, then, of the United States, can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication.

1 The Ninth Amendment has not been construed by the Court.

§ 668. On the other hand, this instrument, like every other grant, is to have a reasonable construction, according to the import of its terms; and where a power is expressly given in general terms, it is not to be restricted to particular cases, unless that construction grows out of the context expressly, or by necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged."

§ 669. This case is more worthy of attention from its history and from the important consequences of the decision rendered upon the question at issue, than from the circumstance that it furnished occasion for the Court to interpret the Tenth Amendment to the Constitution.

Hunter's Lessee, 1 Wh. 304.)

(Martin v.

§ 670. At the opening of the Revolutionary War, Lord Fairfax, of Virginia, was the owner of certain lands in that State, the title to which was derived from the crown of England.

The title to these lands passed by will to Denny Fairfax, who, during the war, became an alien enemy.

§ 671. In the year 1779, the Legislature of Virginia passed an act for the escheat of certain lands, which act required certain proceedings, such as an office found, and a delay of twelve months after a return of the inquisition and verdict into the office of the General Court, before authority could issue for the sale of the estate. This act was

extended to the Fairfax lands in 1785.

§ 672. In the case of the Fairfax lands these proceedings. were not observed, but nevertheless the State leased the lands, and they were occupied under lease for a period of several years.

§ 673. A suit of ejectment against Hunter, lessee, was instituted by the claimant of the land under Lord Fairfax's will.

§ 674. The title of the claimant was sustained by the lower Court, but the decision was reversed by the Supreme