PREFACE.

The Constitution which was printed as a public document,' pursuant to a Senate resolution of April 15, 1913, contained, under each clause, a chronological list of citations of Supreme Court casesnothing more. The cases treated of the clauses of the Constitution under which they were respectively cited, but it may readily be appreciated that in order to locate a particular point under such large and important clauses-as, for instance, the commerce clause, the contracts clause, or the due process clause-it would be necessary to examine many hundreds of cases.

The present undertaking has probably gone beyond the scope of the work at first contemplated, but it was felt that inasmuch as it was necessary to make a check of the cases in any event it would greatly add to the value of the work to subdivide the subject matter of the clauses of the Constitution into appropriate headings and subheadings, and, while examining the cases to verify their applicability, to make a brief statement of the point involved as applying to that particular clause of the Constitution. This has been done,

and, where it seemed necessary, or where the language of the court was so explicit on the point, quotations have been given from the decisions. The annotation is preceded by the full, continuous text of the Constitution, and the literal print, as published by the State Department, with all the original spelling, punctuation, and capitalization, has been used. In the "Notes" which follow, the clauses of the Constitution have been repeated, for convenient reference, immediately following the articles and section or clause number. There then follows, in connection with each clause under which a great many cases have been decided, a list of the leading cases. The analytical index-digest at the end of the document will be found helpful in locating the subjects of the annotation, and its use is recommended.

This compilation, then, is an annotation of the decisions of the United States Supreme Court involving constitutional questions "collated under each separate provision." It contains all such decisions from the first term of the court in 1790 up to and including the October term of 1923. It is perhaps unreasonable to hope that the work is perfect and free from error, although every effort has been made to render it so. Every statement, citation, name, and number has been diligently verified, and the proof reading has been carefully and painstakingly done.

The work is modeled on the lines of the annotation contained in Federal Statutes Annotated, although that admirable work goes

18. Doc. 12, 63d Cong., 1st sess.

'Sce Cong. Rec., Dec. 7, 1921, p. 93, for discussion as to annotations.

far beyond the scope of this document, using a great many more subheadings, going into infinite detail, and giving extracts and quotations not only from Supreme Court decisions but from cases in all the circuit courts, district courts, courts of appeals, Court of Claims, State courts, Opinions of the Attorney General, etc. Recourse has also been had to Compiled Statutes Annotated, Watson on the Constitution, Sutherland's Notes on the Constitution, Evans's Cases on American Constitutional Law, Thayer's Cases, McClain's Cases, Wambaugh's Leading Cases, Modern American Law, Ruling Case Law, Story on the Constitution, Cooley's Constitutional Limitations, Warren on the Constitution, Paschal's Annotated Constitution, Norton's Sources and Application of the Constitution, and Moore on Supreme Court and Unconstitutional Legislation, all of which works should be consulted for a more detailed study of Constitutional Law.

It may be felt by some that many of the quotations used in this work are obiter dicta, but it must be remembered that all such dicta are not unimportant. Justice Brewer, in delivering the opinion of the court in the case of Wilson v. Shaw (204 U. S. 24), after citing various reports of the courts in substantiation of the decision, said:

Plaintiff, recognizing the force of these decisions, seeks to obviate it by saying that the expressions were obiter dicta, but plainly they were not. They announce distinctly the opinion of this court on the questions presented, and would have to be overruled if a different doctrine were now announced. Congress has acted in reliance upon these decisions in many ways, and any change would disturb a vast volume of rights supposed to be fixed; but we see no reason to doubt the conclusions expressed in those opinions, and adhere to them.

The doctrine announced by Chief Justice Marshall in the case of Marbury v. Madison (1 Cranch, 137), that acts of Congress in conflict with the Constitution are void, has been much criticized as a usurpation of power not conferred on the court, and was in fact obiter dicta, but the doctrine has been consistently followed for over a hundred years. It has been said that the historic importance of the Dred Scott case (19 How. 393), involving the Missouri Compromise and the citizenship of negro slaves, lies in the dicta in the opinion of the Chief Justice rather than in the decision of the court that it had no jurisdiction. In Watson v. St. Louis, etc., R. Co. (169 Fed. 942), the court said:

General expressions in an opinion which are not essential to the disposition of the case, on points not presented nor argued to the court, are obiter, and are not permitted to control the judgment of the courts in subsequent cases; but when a question is directly involved in the issues raised, is determined by the trial court, is assigned as error on appeal, argued by counsel, and distinctly decided by the court, the decision of such question is not obiter dictum although the cause is disposed of on other grounds, and this applies specially when the question involves the power of Congress to enact legislation.

And in the very recent case of United States v. Title Ins. Co., 265 U. S. 472, the court said:

Where there are two grounds upon either of which an appellate court may rest its decision, and it adopts both, the ruling on neither is obiter dictum, but each is the judgment of the court and of equal validity. A long-standing decision of a doubtful question which has become a rule of property affecting many land titles should not be disturbed.

It will be found that in a few cases the decisions have characterized former expressions of the court as dicta and in still fewer cases the former holdings of the court have been overruled, but such instances are exceedingly rare.

Of all the great mass of Congressional enactments since the beginning of the Federal Government under the Constitution there have been only about 44 acts or parts of acts of Congress declared invalid by the United States Supreme Court. At the end of this document (p. 759) is a chronological list of such acts, and citations to the cases in which they were considered.

WASHINGTON, D. C., December 1, 1924.

GEORGE GORDON PAYNE.