they are also the decisions of men in independent position who are devoted to the study of such questions. 3. The public has great reverence for the Court. Should Congress or the President come into collision with it, the public confidence would commonly go with the Judges. Accordingly, the decisions of the Supreme Court have a farreaching significance. At the same time, it cannot always enforce its decrees. Its executive arm is the marshal; if this officer is not able to give them effect, he must call upon the President for aid, and if the Executive fails in such a case, the Court is powerless. Neither have the Judges any power to enfore their decrees against the Executive. Thus, in 1861, Chief Justice Taney issued a writ of habeas corpus in the interest of a military prisoner at Baltimore; but President Lincoln refused to allow the writ, and it fell powerless to the ground. States have also refused to obey the decisions of the Court. 576. The Courts and the Development of the Constitution.-The National Courts have played a great part in that development of the Constitution which has been dealt with in Chapter XIII. Mr. Bryce says this development has been effected in three ways. "It has been changed by amendment." "It has been developed by interpretation, that is, by the unfolding of the meaning implicitly contained in its necessarily brief terms, or by the extension of its provisions to cases which they do not directly contemplate, but which their general spirit must be deemed to cover." "It has been developed by usage, that is, by the establishment of rules not inconsistent with its express provisions, but giving them a character, effect, and direction which they would not have if they stood alone, and by which their working is materially modified." Under interpretation he includes construction. "The process of development," he says, "shows no signs of stopping; nor can it, for the new conditions of economics and politics bring up new problems for solution. But the most important work was that done during the first half century, and especially by Chief Justice Marshall during his long tenure of the presidency of the Supreme Court (1801-1835). It is scarcely an exaggeration to call him, as an eminent American jurist has done, 'a second maker of the Constitution.'" 1 577. The National Judiciary.—No department of the Government has more fully met the expectations of its authors than the Judiciary. No department has commanded more confidence at home or more applause abroad. Its influence on the political and legal development of the country has been very great. To quote Professor Johnston: "Unquestionably the most important creation of 1 See the admirable chapters, XXXI-XXXV. the Constitution was the Federal Judiciary. It will be seen that the only guaranty for the observance of the Articles of Confederation was the naked promise of the States. This had been found to be utterly worthless. The creation of a system of United States courts, extending throughout the States, and empowered to define the boundaries of Federal authority, and to enforce its decisions by Federal power, supplied the element needed to bring order out of chaos. Without it the Constitution might easily have proved a more disheartening and complete failure than the Articles of Confederation." 、1 NOTE. The opinion commonly entertained hitherto is that the authority of our courts to declare laws unconstitutional, and so null and void, is purely of an inferential character. Those who have asserted most strongly that the Supreme Court of the United States has such power, have held that it is based upon implication and inference, and not upon the express meaning of the text, or any part of the text, of the Constitution. Mr. Brinton Coxe, in the learned work named above, has undertaken "to show that the Constitution of the United States contains express texts providing for judicial competency to decide questioned legislation constitutional or unconstitutional and to hold it valid or void accordingly." In examining this subject, he investigates "the history of the relation of judicial power to unconstitutional legislation in certain of the States before and during the Confederation," and seeks "to show that the judicial competency under discussion is an American institution older than the Constitution of the United States" (pages 1, 2). It is well known to students that State courts began, almost as soon as the first State constitutions were ordained, to deliver decisions in which they set aside State legislation as in conflict with those instruments. A New Jersey case bears the date 1780, a Virginia case 1782, a New York case 1784, and a Rhode Island case 1786. The constitutional decisions of the National Supreme Court appear to have a still earlier prototype. Mr. Bryce remarks: "Questions sometimes arose in Colonial days whether the statutes made by these [Colonial] Assemblies were in excess of the powers conferred by the charter; and if the statutes were found to be in excess, they were held invalid by the courts, that is to say, in the first instance, by the Colonial courts, or, if the matter was carried to England, by the Privy Council." He states that "the same thing happens even now as regards the British Colonies " (Vol. I., pp. 248, 249, text and note). Judge Swayne is quoted above to the effect that, down to 1868, only three laws enacted by Congress had been declared unconstitutional. Mr. Davis (see title above, pp. ccxxxv, et seq.) gives the titles of 20 decisions rendered by the Court declaring United States statutes repugnant to the Constitution, and 171 decisions declaring State statutes so repugnant. Mr. Coxe subjects the first of these lists to criticism, and points out that it does not contain the famous Dred Scott decision (19 Howard 393). It is perhaps in some cases a difficult matter to determine whether a decision nullifies an act of Congress or not. 1 History of American Politics, pp. 11, 12. CHAPTER XL. THE RIGHTS AND DUTIES OF STATES. ARTICLE IV. Section 1.-Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. 578. Public Acts, Records, Etc.-The public acts referred to are acts of the Legislatures; the records are the records of wills, deeds, and legislative journals; the judicial proceedings are the orders and judgments of courts. For a State to give full faith and credit to the acts and records of another State, is to give to them the same credit that the State to which they belong gives them. This provision is obviously essential to the domestic peace and order of a federal union like the United States. Even the Articles of Confederation contained the same provision in somewhat different words. Section 2, Clause 1.-The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. 579. Privileges and Immunities.-Whatever privileges and immunities any State accords to its own citizens, it must accord to the citizens of all the States who may happen to reside in it or visit it. A citizen of one State going into another cannot claim the privileges and immunities that he has enjoyed, unless they are also accorded by the State into which he goes to its own citizens. Inability to read is a bar to voting in Massachusetts and Connecticut, and an illiterate citizen moving into either of those States from Rhode Island or Vermont cannot claim the right to vote because he has hitherto enjoyed that right. Still, civil and political rights are nearly the same in all the States. This provision was also contained in the Articles of Confederation, and is obviously necessary in a federal republic. 580. A Citizen Defined.-Previous to 1868 neither the National Constitution nor laws contained a definition of a citizen. The States made their own definitions, and there was more or less contrariety. Slaves were never citizens in any State; and Chief Justice Taney, in the Dred Scott decision, denied that free negroes were ever citizens "in the sense of the Constitution." The fact is, however, that they were citizens, and even voted on the same terms as white citizens, in several States, when the Constitution was framed and for some time afterwards. XIV. contains this definition of citizenship: born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." A citizen of the United States is not, however, necessarily a citizen of any State; he may reside in a Territory or in the District of Columbia. Amendment "All persons Section 2, Clause 2.—A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime. 581. Fugitives from Justice.-The National authority embraces all the States, and it can, by its own officers, arrest offenders against its laws anywhere within the National boundaries. The treason of this clause is therefore treason against a State. A felony is a crime punishable by death or imprisonment. The jurisdiction of a State is limited by its own boundaries; a State can punish only offenses committed against its own laws; criminals often escape from one State into another; while the United States, save in cases of domestic violence, have nothing to do with enforcing State laws: hence there must be such a provision as this if criminals are to be punished and society protected. It is copied from the Articles of Confederation almost word for word. The surrender by one nation to another claiming him of a person charged with crime, is known as extradition. This is not a right under the Law of Nations, but is commonly provided for between nations by treaty stipulations. The surrender of a criminal by one State to another under our system is also called extradition. 582. Surrendering Fugitives from Justice. The Constitution says the demand for such a fugitive shall be made by the Executive of the State from which he escapes, but does not say who shall make the surrender. There was some friction at this point until, in 1793, Congress legislated on the subject. The procedure now is for the Governor making a requisition for a criminal to address it to the Governor of the State to which the criminal has fled, distinctly stating the crime charged. The fugitive may be arrested and held in custody before the requisition is received, or made; but if not, then it becomes the duty of the Governor receiving it to order his immediate arrest, and his delivery to the agent of the Governor from whom the demand comes. The fugitive is then taken back to the State from which he fled, for trial. The Governor on whom such a demand is made has no right to go behind it to inquire into the merits of the case, but should obey the call; it makes no difference whether the offense charged be or be not a crime in the State where the criminal is found; still this rule is not always followed. Section 2, Clause 3.-No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. 583. Fugitives from Service.-The States authorizing slavery in 1787 could provide for the capture and surrender of all fugitive slaves belonging to their citizens found within their own borders, but not for those fleeing beyond them. Hence the introduction of this clause into the Constitution as a part of the third compromise. It applied as |