imposed upon the people or property of the State in aid of any such school or institution. The ayes were 5,177; nays 4,574.

West Virginia.

The constitution was amended in 1871 by the adoption of what is commonly known as the "Flick amendment," the effect of which was to enfranchise those citizens of the State who had been disfranchised by reason of their participation in the rebellion, and also by striking out the word "white," enfranchised colored citizens otherwise qualified.

A new constitution has been prepared by a convention elected for the purpose, and is to be voted on on the fourth Thursday in August, 1872. Its leading provisions are: Article IV.

Section one entitles " the male citizens of the State" to vote.

Section four declares that "no person, except citizens entitled to vote, shall be elected or appointed to any State, county, or municipal office."

Article VI.

Sec. 42. Bills making appropriations for the pay of members and officers of the Legislature, and for salaries for the officers of the government, shall contain no provision on any other subject.

Section forty-five declares it to be the duty of the Legislature, at its first session after the adoption of this constitution, to provide by law for the punishment, by imprisonment in the penitentiary, of any person who shall bribe or attempt to bribe any executive or judicial officer or member of the Legislature, and similar punishment for any such officials or member who shall demand or receive bribes; compelling the briber to testify, and exempting him in that case from punishment; and forever disqualifying any person convicted from holding office.

Sec. 47. No charter of incorporation shall be granted to any church or religious denomination. Provision may be made by general laws for securing title to church property, &c.

Sec. 48. Any husband or parent, or the infant children of deceased parents, may hold a homestead of the value of $1,000, and personal property to the value of $200, exempt from forced sale.

Sec. 49. The Legislature shall pass such laws as may be necessary to protect the property of married women from the debts, liabilities, and control of their husbands. Article VII.

Section four declares the Governor ineli> gible for the same office for the four years next succeeding the term for which he was elected. Article VIII.

Sec. 35. No citizen of this State who aided or participated in the late war between the Government of the United States and a part of the people thereof, on either side, shall be liable in any proceeding, civil or criminal; nor shall his property be seized or sold under final proce&%i8sued upon judgments or decrees hereto

fore rendered, or otherwise, because of any act done according to the usages of civilized warfare in the prosecution of said war, by either of the parties thereto. The Legislature shall provide by general law for giving full force and effect to this section, by due process of law.

Article X.

Section six prohibits the State from granting its credit, assuming debts, or becoming an owner or stock holder in any corporal ion.

Section seven prohibits the assessment of more than ninety-three cents county taxes per annum on each $100, except in certain cases.

Section eight limits county, city, school-district, and municipal corporation debts to five per cent, on the value of taxable property, and provides for the payment of interest and principal.

Article XL

Sec. 2. The stockholders of all corporations and joint stock companies, except banks and banking institutions, created by the laws of this State, shall be liable for the indebtedness of such corporations to the amount of their stock subscribed and unpaid, and no more.

Section four provides that every share of stock in an incorporated company entitles the holder to a vote in person or by proxy in the election of directors, and for cumulative voting thereat.

Section six provides for the creation of banks of issue or circulation, and the personal liability of the stockholders of all banks in the amount of their shares, and an additional amount equal thereto.

Article XII.

Section five provides for the support of free schools.

Sec. 8. White and colored persons shall not be taught in the same school.

With the Constitution will be submitted a separate proposition, which, if adopted will take the place of section four, Article IV, of the constitution, and which is as follows:

"Any white citizen entitled to vote, and no other, may be elected or appointed to any office; but the Governor and judges must have attained the age of thirty, and the Attorney General and Senators the age of twentyfive years at the beginning of their respective terms of service, and must have been citizens of the State for five years next preceding their election or appointment, or citizens at the time this constitution goes into operation."

Wisconsin.

The eighth section of the first article, being the declaration of rights, of the constitution of Wisconsin was as follows:

Sec. 8. No person shall be held to answer for a criminal offense, [unless on the presentment or indictment of a grand jury, except in cases of impeachment, or in cases cognizable by justices of the peace, or arising in the Army or Navy, or in the militia when in actual service in time of war or public danger;] and no person for the same offense shall be put twice in jeopardy of punishment, nor shall be compelled in any criminal case to be a witness against himself, &c.

The question of striking out the words inclosed above in brackets, and inserting in their place the words u without due process of law,'' was submitted to a vote of the people of the State in November, 1870, and resulted affirmatively, as follows: against grand jury system, 48,894; for grand jury system, 18,606.

An amendment to add to Article IV the following words:

"sec. 31, The Legislature is prohibited from enacting any special or private laws in the following cases: first, for changing the names of persons or constituting one person the heirat-law of another; second, for laying out, opening, or altering highways, except in cases of State roads extending into more than one county, and military roads to aid in the construction of which lands may be granted by Congress; third, for authorizing persons to

keep ferries across streams at points wholly within this State; fourth, for authorizing the sale or mortgage of real or personal property of minors or others under disability; fifth, for locating or changing any county seat; sixth, for assessment or collection of taxes, or for extending the time for the collection thereof; seventh,, for granting corporate powers or privileges, except to cities; eighth, for authorizing the apportionment of any part of the school fund; ninth, for incorporating any town or village or to amend the charter thereof.

Sec. 32. The Legislature shall provide general laws for the transaction of any business that may be prohibited by section thirtyone of this article, and all such laws shall be uniform in their operation throughout the State"—was submitted to popular vote at the election in 1871, and was adopted—yeas, 54,087; nays, 3,675.

Supreme Court of tlie United States.

Nos. 10 and 17.—December Term, 1870.

In error to the Circuit Court of the United States for the western district of Texas.

In error to the Supreme Judicial Court of the Commonwealth of

Massachusetts.

William B. Knox,
plaintiff in error,

V8,

Phoebe G. Lee and Hugh

Lee, her husband. Thomas II. Parker, plaintiff in error, \ vs. I George Davis. J

Mr. Justice Strong delivered the opinion of the Court.

The controlling questions in these cases are the following: Are the acts of Congress, known as the legal-tender acts, constitutional when applied to contracts made before their passage; and, secondly, are they valid as applicable to debts contracted since their enactment? These questions have been elaborately argued, and they have received from the court that consideration which their great importance demands. It would be difficult to over estimate the consequences which must follow our decision. They will affect the entire business of the country, and take hold of the possible continued existence of the Government. If it be held by this court that Congress has no constitutional power, under any circumstances, or in any emergency, to make Treasury notes a legal tender for the payment of all debts, (a power confessedly possessed by every independent sovereignty other than the United States,) the Government is without those means of self preservation which, all must admit, may in certain contingencies become indispensable, even if they were not when the acts of Congress now called in question were enacted. It is also clear that if we hold the acts invalid as applicable to debts incurred, or transactions which have taken

place sitJce their enactment, our decision mus cause, throughout the country, great business derangement, widespread distress, and the rankest injustice. The debts which have been contracted since February 25, 18G2, constitute, doubtless, by far the greatest portion of the existing indebtedness of the country. They have been contracted in view of the acts of Congress declaring Treasury notes a legal tender, and in reliance upon that declaration. Men have bought and sold, borrowed and lent-, and assumed every variety of obligations contemplating that payment might be made with such notes. Indeed, legal-tender Treasury notes have become the universal measure of values.* If now, by our decision, it be established that these debts and obligations can be discharged only by gold coin j if, contrary to the expectation of all parties to these contracts, legal tender notes are rendered unavailable, the Government has become an instrument of the grossest injustice; all debttors are loaded with an obligation it was never contemplated they should assume; a large percentage is added to every debt, and such must become the demand for gold to satisfy contracts that ruinous sacrifices, general distress, and bankruptcy may be expected. These consequences are too obvious to admit of question. And there is no well-founded distinction to be made between the constitutional validity of an act of Congress declaring Treasury notes a legal tender for the payment of debts contracted after its passage and that of an act making them a legal tender for the discharge of all debts, as well those incurred before as those made after its enactment. There may be a difference in the effects produced by the acts, and in the hardship of their operation, but in both cases the fundamental question, that which tests the validity of the legislation, is, can Congress constitutionally give to Treasury notes the character and qualities of money? Can such notes be constituted a legitimate circulating medium, having a defined legal value? If they can, then such notes must be available to fulfill all contracts (not expressly excepted) solvable in money, without reference to the time when the contracts were made. Hence it is not strange that those who hold.the legal-tender acts unconstitutional when applied, to contracts made before February, 18G2, find themselves compelled also to hold that the acts are invalid as to debts created after that time, and to hold that both classes of debts alike can be discharged only by gold and silver coin.

The consequences of which we have spoken, serious as they are, must be accepted, if there is a clear incompatibility between the Constitution and the legal-tender acts. Bui, we are unwilling to precipitate them upon the country unless such an incompatibility plainly appears. A decent respect for a coordinate branch of the Government demands that the judiciary should presume, until the contrary is clearly shown, that there has been no transgression of power by Congress—all the members of which act under the obligation of an oath of fidelity to the Constitution. Such has always been the rule. In Commonwealth vs. Smith, (4 Bin., 123,) the language of the court was: u it must be remembered that for weighty reasons, it has been assumed as a principle, in construing constitutions, by the Supreme Court of the United States, by this court, and by every other court of reputation in the United States, that an act of the Legislature is not to be declared void unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt;" and. in Fletcher vs. Peck, (6 Cranch, 87,) Chief Justice Marshall said "it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers and its acts to be considered void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other." It is incumbent, therefore, upon those who affirm the unconstitutionality of an act of Congress to show clearly that it is in violation of the provisions of the Constitution. It is not sufficient for them that they succeed in raising a doubt.

Nor can it be questioned that when investigating the nature and extent of the powers conferred by the Constitution upon Congress, it is indispensable to keep in view the objects for which those powers were granted. This is an universal rule of construction applied alike to statutes, wills, contracts, and constitutions. If the general purpose of the instrument is ascertained, the language of its provisions must be construed with reference to that purpose and so as to subserve it. In no other way can the intent of the framers of the instrument be discovered. And there are more urgent reasons for looking to the ultimate purpose in examining the powers conferred by a

constitution than there are in construing a statute, a will, or a contract. We do not expect to find in a constitution minute details. It is necessarily brief and comprehensive. It prescribes outlines, leaving the filling up to be deduced from the outlines. In Alartin vs. Hunter, 1 Wbeaton, 326, it was said, "the Constitution unavoidably deals in general language. It did not suit the purpose of the people in framing this great charter of our liberties to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution." And with singular clearness was it said by Chief Justice Marshall, in McCullough vs. The Bank of Maryland, 4 Wheaton, 405: u A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which it may be carried into execution, would partake of the prolixity of a political code, and would scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves." If these are correct principles, if they are proper views of the manner in which the Constitution is to be understood, the powers conferred upon Congress must be regarded as related to each other, and all means for a common end. Each is but a part of a system, a constituent of one whole. No single power is the ultimate end for which the Constitution was adopted. It may, in a very proper sense, be .treated as a means for the accomplishment of a subordinate object, but that object is itself a means designed for an ulterior purpose. Thus the power to levy and collect taxes, to coin money and regulate its value, to raise and support armies, or to provide for and maintain a Navy, are instruments for the paramount object, which was to establish a Government, sovereign within its sphere, with capability of selfpreservation, thereby forming an union more perfect than that which existed under the old Confederacy.

The same may be asserted also of all the non-enumerated powers included in the authority expressly given "to make all laws which shall be necessary and proper for carrying into execution the specified powers vested in Congress, and all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof." It is impossible to know what those non-enumerated powers are, and what is their nature and extent, without considering the purposes they were intended to subserve. Those purposes, it must be noted, reach beyond the mere execution of all powers definitely intrusted to Congress, and mentioned in detail. They embrace the execution of all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof. It certainly was intended to confer upon the Government the power of self-preservation. Said Chief Justice Marshall, in Cohens vs. The Bank of Virginia, (6 Wheat., 414:) "America has chosen to be, in many respects and to many purposes, a nation, and for all these purposes her Government is complete ; for all these objects it is supreme. It can then, in effecting these objects, legitimately control all individuals or governments within the American territory." He added, in the same case: "A constitution is framed for ages to come, and is designed to approach immortality as near as mortality can approach it. Its course cannot always be tranquil. It is exposed to storms and tempests, and its framers must be unwise statesmen, indeed, if they have not provided it, as far as its nature will permit, with the means of self-preservation from the perils it is sure to encounter." That would appear, then, to be a most unreasonable construction of the Constitution which denies to the Government created by it the right to employ freely every means, not prohibited, necessary for its preservation, and for the fulfillment of its acknowledged duties. Such a right, we hold, was given by the last clause of the eighth section of its first article. The means or instrumentalities referred to in that clause, and authorized, are not enumerated or defined. In the nature of things enumeration and specification were impossible. But they were left to the discretion of Congress, subject only to the restrictions that they be not prohibited, and be necessary and proper for carrying into execution the enumerated powers given to Congress, and all other powers vested in the Government of the United Slates, or in any department or officer thereof.

And here it is to be observed it is not indispensable to the existence of any power claimed for the Federal Government that it can be found specified in the words of the Constitution, or clearly and directly traceable to some one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly defined, or from them all combined. It is allowable to group together any number of them and infer from them all that the power claimed has been conferred. Such a treatment of the Constitution is recognized by its own provisions. This is well illustrated in its language respecting the writ of habeas corpus. The power to suspend the privilege of that writ is not expressly given, nor can it be deduced from any one of the particularized grants of power. Yet it is provided that the privileges of the writ shall not be suspended except in certain defined contingencies. This is no express grant of power. It is a restriction. But it shows irresistibly that somewhere in the Constitution power to suspend the privilege of the writ was granted, either by some one or more of the specifications of power, or by them all combined. And that important powers were understood by the people who adopted the Constitution to have been created by it, powers not enumerated, and not included incidentally in any one of those enumerated, is shown by the amendments. The first ten of these were suggested

in the conventions of the States, and proposed at the first session of the First Congress, before any complaint was made of a disposition to assume doubtful powers. The preamble to the resolution submitting them for adoption recited that the u conventions of a number of the States had, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added." This was the origin of the amendments, and they are significant. They tend plainly to show that, in the judgment of those who adopted the Constitution, there were powers created by it, neither expressly specified nor deductible from any one specified power, or ancillary to it alone, but which grew out of the aggregate of powers conferred upon the Government, or out of the sovereignty instituted. Most of these amendments are denials of power which had not been expressly granted, and which cannot be said to have been necessary and proper for carrying into execution any other powers. Such, for example, is the prohibition of any laws respecting the establishment of religion, prohibiting the free exercise thereof, or abridging the freedom of speech or of the press.

And it is of importance to observe that Congress has often exercised without question powers that are not expressly given or ancillary to any single enumerated power. Powers thus exercised are what are called by Judge Story in his Commentaries on the Constitution, resulting powers, arising from the aggregate powers of the Government. He instances the right to 'sue and make contracts. Many others might be given. The oath required by law from officers of the Government is one. So is building a capitol or a presidential mansion, and so also is the penal code. This last is worthy of brief notice. Congress is expressly authorized "to provide for the punishment of counterfeiting the securities and current coin of the United States, and to define and punish piracies and felonies committed on the high seas and offenses against the laws of nations." It is also empowered to declare the punishment of treason, and provision is made for impeachments. This is the extent of power to punish crime expressly conferred. It might be argued that the expression of these limited powers implies an exclusion of all other subjects of criminal legislation. Such is the argument in the present cases. It is said because Congress is authorized to coin money and regulate its value it cannot declare anything other than gold and silver to be money or make it a legal tender. Yet Congress, by the act of April 30, 1790, entitled "An act more effectually to provide for the punishment of certain crimes against the United States." and the supplementary act of March 3, 1825, defined and provided for the punishment of a large class of crimes other than those mentioned in the Constitution, and some of the punishments prescribed are manifestly not in aid of any single substantive power. No one doubts that this was rightfully done, and the power thus exercised has been affirmed by this court. (United States vs. Marigold, 9 Howard, 560.) This case shows that a power may exist as an aid to the execution of an express power, or an aggregate of such powers, though there is another express power given relating in part to the same subject but less extensive. Another illustration of this may be found in connection with the provisions respecting a census. The Constitution orders an enumeration of free persons in the different States every ten years. The direction extends no further. Yet Congress has repeatedly directed an enumeration not only of free persons in the States, but of free persons in the Territories, and not only an enumeration of persons but the collection of statistics respecting age, sex, and production. Who questions the power to do this?

Indeed, the whole history of the Government and of congressional legislation has exhibited the use of a very wide discretion, even in times of peace and in the absence of any trying emergency, in the selection of the necessary and proper means to carry into effect the great objects for which the Government was framed, and this discretion has generally been unquestioned, or, if questioned, sanctioned by this court. This is true not only when an attempt has been made to execute a single power specifically given, but equally true when the means adopted have been appropriate to the execution, not of a single authority, but of all the powers created by the Constitution. Under the power to establish post offices and post roads Congress has provided for carrying the mails, punishing theft of letters and mail robberies, and even for transporting the mails to foreign countries. Under the power to regulate commerce provision has been made by law for the improvement of harbors, the establishment of observatories, the erection of light houses, breakwaters, and buoys, the registry, enrollment, and construction of ships, and a code has been enacted for the government of seamen. Under the same power and other powers over the revenue and the currency of the country, for the convenience of the Treasury and internal commerce, a corporation known as the United States Bank was early created. To its capital the Government subscribed one fifth of its stock. But the corporation was a private one, doing business for its own profit. Its incorporation was a constitutional exercise of congressional power for no other reason than that it was deemed to be a convenient instrument or means for accomplishing one or more of the ends for which the Government was established, or, in the language of the first article, already quoted, "necessary and proper" for carrying into execution some or all the powers vested in the Government. Clearly this necessity, if any existed, was not a direct and obvious one. Yet this court, in McCullough vs. The State of Maryland, 4 Wheat., 416, unanimously ruled that in authorizing the bank Congress had not transcended its powers. So debts due to the United States have been declared by acts of Congress entitled to priority of payment over debts due to other creditors.

and this court hasheld su^h acts warranted by the Constitution. (Fishervs. Blight, 2 Cranch, 358.)

This is enough to show how, from the earliest period of our existence as a nation, the powers conferred by the Constitution have been construed by Congress and by this court whenever such action by Congress has been called into question. Happily the true meaning of the clause authorizing the enactment of all laws necessary and proper for carrying into execution the express powers conferred upon Congress, and all other powers vested in the Government of the United States, or in any of its departments or officers, has long since been settled. In Fisher vs. Blight (above cited) this court, speaking by Chief Justice Marshall, said that in construing it "it would be incorrect and would produce epdless difficulties if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power. Where various systems might be adopted for that purpose it might be said with respect to each that it was not necessary because the end might be obtained by other means." Congress, said this court, "must ! possess the choice of means, and must be em; powered to use any means which are in fact conducive to the exercise of a power granted by the Constitution. 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." It was in this case, as we have already remarked, that a law giving priority to debts due to the United States was ruled to be constitutional for the reason that it appeared to Congress to be an eligible means to enable the Government to pay the debts of the Union.

It was, however, in McCullough vs. Maryland that the fullest consideration was given to this clause of the Constitution granting auxiliary powers, and a construction adopted that has ever since been accepted as determining its true meaning. We shall not now go over the ground there trodden. It is familiar to the legal profession, and, indeed, to the whole country. Suffice it to say, in that case it was finally settled that in the gift by the Constitution to Congress of authority to enact laws "necessary and proper" for the execution of all the powers created by it, the necessity spoken of is not to be understood as an absolute one. On the contrary, this court then held that the sound construction of the Constitution must allow to the national Legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Said Chief Justice Marshall, in delivering the opinion of the court: "Let the end be legitimate, let it be within the scope of the Cpnstitution, and all means which are appropriate, which are plainly adapted to that end: which are not