and the manner in which they shall be conducted, for offenses comnitted while the party is in the military or naval service. Every one connected with these branches of the public service is amenable to the jurisdiction which Congress has created for their government, and while thus serving, surrenders his right to be tried by the civil courts. All other persons, citizens of States where the courts are open, if charged with crime, are guaranteed the inestimable privilege of a trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of State or political necessity. When peace prevails, and the authority of the government is undisputed, there is no difficulty of preserving the safeguards of liberty; for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil commotion-if the passions of men are aroused and the restraints of law weakened, if not disregarded-these safeguards need, and should receive the watchful care of those intrusted with the guardianship of the Constitution and laws. It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this; that in a time of war the commander of an armed force * * * * has the power, within the lines of his military district to suspend all civil rights and their remedies, and subject citizens as well as soldiers, to the rule of his will, and in the exercise of his lawful authority cannot be restrained, except by his superior officer or the President of the United States. If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of each one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fixed or certain rules. The statement of this proposition shows its importance, for, if true, republican government is a failure, and there is an end of liberty regulated by law. * * * * Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconciable; and, in the conflict, one or the other must perish. **The necessities of the service, during the late Rebellion, required that the loyal States should be placed within the limits of certain military districts and commanders appointed in them; and, it is urged, that this, in a military sense, constituted them the theatre of military operations; and as in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and with it all pretext for mar

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tial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration. It is difficult to see how the safety of the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as well as a military tribunal; and as there could be no wish to convict, except on sufficient legal evidence, surely an ordained and established court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law. The prisoner was discharged.

See also Hawaii v. Mankichi, supra.

Note.-In Thompson v. Utah, 170 U. S. 343, (1898), the Supreme Court decided that the Jury referred to in the Federal Constitution and in the 6th Amendment thereto is a jury constituted, as it was at common law, of twelve persons, neither more nor less. In Springfield v. Thomas, 166 U. S. 707, (1897), it was held that the verdict of the jury must be unanimous, as it is at common law. This rule applies in the United States Courts and in_territories of the United States. In Chesapeake & Ohio Ry. Co. v. Kelly, 241 U. S. 485, (1916), the Supreme Court held that the requirement of the 7th Amendment to the United States Constitution that trials by jury be according to the course of the common law, i. e., by an unanimous verdict, does not control the state courts, even when enforcing rights under a Federal statute like the employers' liability act of April 22, 1908, and such courts may, therefore, give effect, in actions under that statute, to a practice permitting a less than unanimous verdict. See also Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S. 211.

Section 2.

CIVIL RIGHTS.

CIVIL RIGHTS CASES.

109 U. S., 3. 1883.

The Act of Congress of March 1, 1875, known as the Civil Rights Act, made it a criminal offense for any person to deny any citizen on account of race or color the full and equal enjoyment of the privileges and accommodations of inns, public conveyances, theatres, and other places of public amusements. Certain persons were indicted for violations of this act, and carried these cases to the Supreme Court of the United States in order to test the constitutionality of this act, their contention being that as the Constitution and its Amendments do not authorize Congress to regulate private rights, the indictments under the act of 1875 were void. The government contended that the act was authorized by the 1st section of the

Fourteenth Amendment, which declares, "No State shall make or enforce any law which shall abridge the privileges and immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

MR. JUSTICE BRADLEY, speaking in reference to the 1st section of the Fourteenth Amendment, says:

It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws. It not only does this, but, in order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the amendment invests Congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. To adopt appropriate legislation for correcting the effects of such prohibited State laws and State acts, and thus to render them effectually null, void, and innocuous. This is the legislative power conferred upon Congress, and this is the whole of it. It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal laws for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of State officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment; but they are secured by way of prohibition against State laws and State proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed State laws or State proceedings, and be directed to the correction of their operation and effect.

In the present case, until some State law has been passed, or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity; for the prohibitions of the amendment are against State laws and acts done under State authority. Of course, legislation. may, and should be, provided in advance to meet the exigency when

it arises; but it should be adapted to the mischief and wrong which the amendment was intended, to provie against; and that is, State laws, or State action of some kind, adverse to the rights of the citizen secured by the amendment. Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty and ⚫ property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make Congress take the place of the State legislatures and to supersede them. It is absurd to affirm that, because the rights of life, liberty and property, which include all civil rights that men have, are by the amendment, sought to be protected against invasion on the part of the State without due process of law, Congress may, therefore, provide due process of law for their vindication in every case; and that, because the denial by a State to any persons, of the equal protection of the laws, is prohibited by the amendment, therefore Congress may establish laws for their equal protection. In fine, the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States may commit or take, and which, by the amendment, they are prohibited from committing or taking.

(The court comes to the conclusion that the act in question is not directed against any particular State action, and therefore is not within the power conferred on Congress by the amendment.)

Section 3.

STATE LAWS IMPAIRING THE OBLIGATION OF CONTRACTS.

Article I, Section 10, of the Constitution of the United States provides "That no State shall pass any law impairing the obligation of contracts."

DARTMOUTH COLLEGE v. WOODWARD.

4 WHEATON, 518. 1819.

Dartmouth College in New Hampshire had a charter granted by the British crown in 1769, by which twelve persons were incorporated as trustees and granted appropriate privileges and powers to conduct the affairs of the college, with authority to fill all vacancies in their own body. In 1816 the New Hampshire Legislature attempted to alter this charter by increasing the number of trustees,

the additional members to be appointed by the governor, and placed the more important acts of the trustees under the control of a board of overseers. The trustees acting under the old charter brought an action of trover against Woodward, who was secretary of the body, claiming to act under the State law, for the recovery of certain of the college records and documents. The question to be decided was whether the statutes of New Hampshire were invalid as impairing the obligation of the contract involved in the original charter. The case was carried to the Supreme Court of the United States.

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MR. CHIEF JUSTICE MARSHALL delivered the opinion of the court: * * This is plainly a contract to which the donors, the trustees, and the crown (to whose rights and obligations New Hampshire succeeds) were the original parties. It is a contract made on a valuable consideration. It is a contract for the security and disposition of property. It is a contract on the faith of which real and personal estate has been conveyed to the corporation. It is then a contract within the letter of the Constitution, and within its spirit also, unless the fact that the property is invested by the donors in trustees, for the promotion of religion and education, for the benefit of persons who are perpetually changing, though the objects remain the same shall create a particlar exception, taking this case out of the prohibition contained in the Constitution.

It is more than possible that the preservation of rights of this description was not particularly in the view of the framers of the Constitution, when the clause under consideration was introduced into that instrument. It is probable that interferences of more frequent recurrence, to which the temptation was stronger, and of which the mischief was more extensive, constituted the great motive for imposing this restriction on the State legislatures. But although a particular and a rare case may not, in itself, be of sufficient magnitude to induce a rule, yet it must be governed by the rule, when established, unless some plain and strong reason for excluding it can be given. It is not enough to say, that this particular case was not in the mind of the convention when the article was framed, nor of the American people when it was adopted. It is necessary to go further, and to say that, had this particular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the Constitution in making it an exception.

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The opinion of the court, after mature deliberation, is, that this is a contract the obligation of which cannot be impaired without violating the Constitution of the United States. This opinion appears