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1/9/2020 Thomas M. Cooley: Principles of Constitutional Law THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA. BY THOMAS M. COOLEY, LL.D., AUTHOR OF "CONSTITUTIONAL LIMITATIONS," ETC. THIRD EDITION BY ANDREW C. McLAUGHLIN, A.M., LL.B. PROFESSOR OF AMERICAN HISTORY, UNIVERSITY OF MICHIGAN. BOSTON: LITTLE, BROWN, AND COMPANY. 1898. Copyright, 1880, BY THOMAS M. COOLEY Copyright, 1891, 1898, BY LITTLE, BROWN, AND COMPANY. UNIVERSITY PRESS JOHN WILSON AND SON, CAMBRIDGE FOURTH EDITION EDITED BY JON ROLAND 2002 PREFACE. THE manual which follows has been prepared for the use of students in law schools and other institutions of learning. The design has been to present succinctly the general principles of constitutional law, whether they pertain to the federal system, or to the state system, or to both. Formerly, the structure of the federal constitutional government was so distinct from that of the States, that each might usefully be examined and discussed apart from the other; but the points of contact and dependence have been so largely increased by the recent amendments to the federal Constitution that a different course is now deemed advisable. Some general principles of constitutional law, which formerly were left exclusively to state protection, are now brought within the purview of the federal power, and any useful presentation of them must show the part they take in federal as well as state government. An attempt has been made to do this in the following pages. The reader will soon discover that mere theories have received very little attention, and that the principles stated are those which have been settled, judicially or otherwise, in the practical working of the government. THOMAS M. COOLEY. UNIVERSITY OF MICHIGAN, ANN ARBOR, March, 1880. PREFACE TO THE SECOND EDITION. IN the preparation of this edition, such changes in the text and notes of the first edition have been made as have been required by the many important decisions upon constitutional questions rendered within the last ten years. While the aim has been to keep the book a manual and not to make it a digest, it will be found, it is hoped, to treat briefly all important points covered by the cases decided up to this time. https://www.constitution.org/cmt/tmc/pcl.htm 1/299 1/9/2020 Thomas M. Cooley: Principles of Constitutional Law ALEXIS C. ANGELL. DETROIT, August, 1891. PREFACE TO THE THIRD EDITION. IN the preparation of the third edition of this work, I have been guided and aided by the results of ten years' experience in using the book with my classes. While I have endeavored to leave the text unaltered as far as seemed consistent with a careful revision, I have made occasional alterations, usually by expanding condensed statements, sometimes to correct a principle altered or modified by recent decisions. Because of the great development of some branches of constitutional law, for example, the law of interstate commerce, I have found it necessary to rearrange, and in large measure rewrite, some pages of the earlier editions. I should have preferred to leave the text as it was written by its distinguished author; but inasmuch as the book is widely used by students in colleges and law schools, it seemed unwise simply to use footnotes to call attention to new and important decisions which have modified the statements of the text. Besides new matter inserted in the pages of the earlier edition, I have added a chapter dealing with State Constitutions. This chapter is in large measure a condensation of Chapters III. to VI. of Judge Cooley's Constitutional Limitations, and where possible I have used the language of that treatise in preference to my own. ANDREW C. McLAUGHLIN. UNIVERSITY OF MICHIGAN, ANN ARBOR, September, 1893. PREFACE TO THE FOURTH EDITION. This digital edition is essentially the third edition, but the Table of Cases has been moved to a position before the Index, and the footnotes will have been moved to the ends of their chapters, and will have had the page numbers prepended, followed by a colon, when complete. As time permits, I intend to add notes to bring the work up to date. JON ROLAND AUSTIN, TEXAS, July 19, 2002 CONTENTS. Page TABLE OF CASES ............... xi CONSTITUTION OF THE UNITED STATES ....... xxxv CHAPTER I. THE RISE OF THE AMERICAN UNION ........ 3 CHAPTER II. DEFINITIONS AND GENERAL PRINCIPLES ....... 21 CHAPTER III. DISTRIBUTION OF THE POWERS OF GOVERNMENT .... 44 CHAPTER IV. THE POWERS OF CONGRESS ........... 55 SECT. 1. Taxes, Loans, and Debts ....... 55 SECT. 2 Regulation of Commerce ......... 66 SECT. 3. Naturalization ............ 88 SECT. 4. Bankruptcy ........ .... 89 https://www.constitution.org/cmt/tmc/pcl.htm 2/299 1/9/2020 Thomas M. Cooley: Principles of Constitutional Law SECT. 5. The Currency ............ 90 SECT. 6. Bills of Credit ............ 93 SECT. 7 Weights and Measures ........ 94 SECT. 8. Couiiteifeiting ............ 94 SECT. 9. Post Offices and Post Roads . ...... 94 SECT. 10. Copyrights and Patents ......... 95 SECT. 11. Piracies, Felonies on the High Seas, &c.. 97 SECT. 12. War ............... 98 SECT. 13. Ceded Districts ............ 102 SECT. 14. Treason .............. 104 SECT. 15. Non-enumerated and Implied Powers ..... 105 SECT. 16. Restrictions on the Powers of Congress .... 111 CHAPTER V. THE POWERS OF THE FEDERAL EXECUTIVE ...... 114 CHAPTER VI. THE JUDICIAL DEPARTMENT OP THE FEDERAL GOVERNMENT ................ 123 CHAPTER VII. CHECKS AND BALANCES IN GOVERNMENT ...... 160 CHAPTER VIII. THE GOVERNMENT OF THE TERRITORIES ....... 183 CHAPTER IX. THE ADMISSION OF NEW STATES ......... 187 CHAPTER X. CONSTITUTIONAL RULES OF STATE COMITY ...... 196 CHAPTER XI. THE GUARANTY OF REPUBLICAN GOVERNMENT TO THE STATES ............... 213 CHAPTER XII. THE AMENDMENTS TO THE CONSTITUTION ...... 218 CHAPTER XIII. CIVIL RIGHTS AND THEIR GUARANTIES ....... 224 SECT. 1. Religious Liberty ........... 224 SECT. 2. Security of the Dwelling, and of the Person and Papers .............. 228 SECT. 3. The Prohibition of Slavery ........ 233 SECT. 4. The Guaranties of Life, Liberty, and Equality . 240 SECT. 5. Jury Trial in Civil Cases ......... 263 CHAPTER XIV. POLITICAL PRIVILEGES AND THEIR PROTECTIONS .... 268 SECT. 1. Citizenship ............. 268 SECT. 2. Suffrage and Elections .......... 275 https://www.constitution.org/cmt/tmc/pcl.htm 3/299 1/9/2020 Thomas M. Cooley: Principles of Constitutional Law SECT. 3. The Right of Assembly and Petition ..... 294 SECT. 4. The Right to keep and bear Arms ..... 297 SECT. 5. Freedom of Speech and of the Press ..... 299 CHAPTER XV. PROTECTIONS TO PERSONS ACCUSED OF CRIME ..... 310 SECT. 1. Legislative Adjudications ........ 310 SECT. 2. Treason: its Definition and Punishment .... 314 SECT. 3. The Writ of Habeas Corpus ........ 315 SECT. 4. Accusations of Crime .......... 317 SECT. 5. Bail ................ 318 SECT. 6. Incidents of the Trial and Punishment .... 319 CHAPTER XVI. PROTECTIONS TO CONTRACTS AND PROPERTY ..... 328 SECT. 1. Laws impairing the Obligation of Contracts . 328 SECT. 2. Protection to Property ......... 345 SECT. 3. The Eminent Domain .......... 363 CHAPTER XVII. MUNICIPAL CORPORATIONS ........... 378 CHAPTER XVIII. THE FORMATION AND CONSTRUCTION OF STATE CONSTITUTIONS ................ 381 INDEX .................. 393 CONSTITUTIONAL LAW. CHAPTER I. THE RISE OF THE AMERICAN UNION. Independence. — The declaration which severed the political connection between the thirteen American Colonies and the British Crown bears date July 4, 1776, and was made by the representatives of the Colonies in General Congress assembled, severally empowered by the respective Colonies to make it. By this manifesto the representatives declare to the world that "appealing to the Supreme Judge of the world for the rectitude of our intentions, [we] do, in the name and by authority of the good people of these Colonies, solemnly publish and declare, that these United Colonies are, and of right ought to be, free and independent States; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and independent States, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do." For more than a year previous to this the Colonies had been in the exercise of sovereign powers in hostility to the government of Great Britain, but without a repudiation of their allegiance; and they now severally assumed the position of independent States, limited only by the concessions of authority, mostly tacit, which they made to their general Congress. Colonial Legislation. — The people of the Colonies had previously exercised a somewhat indefinite power to make their own laws, which was very general in some Colonies and greatly restricted in others. In all of them the proprietary or royal governor might defeat legislation by refusing his assent; and in some a council not https://www.constitution.org/cmt/tmc/pcl.htm 4/299 1/9/2020 Thomas M. Cooley: Principles of Constitutional Law chosen by the people formed a second legislative chamber, whose concurrence was necessary. Colonial legislation was also sometimes nullified in England, by the authority of an executive board or council, or by Parliament. Parliament itself also exercised the power to make laws for the Colonies, and in some cases the power was conceded, though its exercise in particular
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