congress. But when a statute has proved effective in carrying into execution powers confessedly existing, it must have had some appropriateness to the execution of those powers. Ibid. § 223. The clause of the constitution which gives congress power "to make all laws which shall be necessary and proper to carry into execution" powers granted to it, does not mean that no law is authorized which is not indispensably necessary to give effect to the powers granted. Congress possesses the choice of means, and is empowered to use any means which are in fact conducive to the exercise of the power granted by the constitution. The necessity referred to in the clause of the constitution mentioned is not to be understood as an absolute one, but congress is to be allowed that discretion with respect to the means by which the powers conferred on it are to be carried into execution which will enable it to discharge the high duties assigned to it in the manner most beneficial to the people. If the end is legitimate, and within the scope of the constitution, then all means which are appropriate and are plainly adapted to that end, and are not prohibited, but are consistent with the letter and spirit of the constitution, are constitutional. If the particular law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, an inquiry by a court into the degree of its necessity would be to pass the line which circumscribes the judicial department and tread on legislative ground. So where the question was whether a law of congress which excluded certain matter from the mails was constitutional, it was held that whether certain things should be excluded or not is a matter for the sound discretion of congress under the constitution, and the discretion of a court cannot be substituted for the discretion of congress. In re Jackson, 14 Blatch., 251.

§ 224. Where rights are given or duties imposed on the government of the United States by the constitution, congress may enact the proper laws for their enforcement, though power to do so is not specifically enumerated among the powers of congress. The end being required, it is a just and necessary implication that the means to accomplish it are also given, or, in other words, that the power flows as a necessary means to accomplish the end. Prigg v. Commonwealth of Pennsylvania, 16 Pet., 618.

§ 225. Treaties Indians.— A stipulation in a treaty with an Indian tribe, by which lands are ceded by the tribe to the United States, that the laws in force in the Indian country should continue in full force and effect as to that part of the territory ceded, is a proper exercise of the treaty-making power on the part of the United States, though the territory so ceded is within the limits of a state. United States v. Forty-three Gallons of Whisky, 3 Otto, 193.

§ 226. Neither the constitution of a state nor any act of its legislature can withdraw Indians from the influence of an act of congress which that body has the constitutional right to pass concerning them. United States v. Holliday, 3 Wall., 407.

§ 227. Treaty-making power with Indians in a state.— The extent to which the treaty-making power of congress may be exercised as to the Indian tribes residing beyond the limit of a state, is a matter resting wholly within the sound discretion of the legislature; but as to Indian tribes within the limits of a state, it seems that neither the treaty-making power nor the legislative power can be so exercised as to abridge the rights of the state. United States v. Cisna, 1 McL., 260. See INDIANS.

§ 228. A treaty is a part of the supreme law of the land, and a state can pass no law that conflicts with it. Baker v. City of Portland,* 5 Saw., 566. See TREATIES.

§ 229. Where a treaty is entered into by the United States, which contains provisions repugnant to the statute of a state, such repugnant statute is thereby repealed. Denn v. Harnden, 1 Paine, 59.

§ 230. War power of congress. The congress of the United States, to which is confided all the great powers essential to a perpetual Union - the power to make war, to suppress insurrection, to levy taxes, to make rules concerning captures on land and on sea is not. deprived of these powers when the necessity for their exercise is called out by domestic insurrection and internal civil war. Tyler v. Defrees, 11 Wall., 331. See WAR.

§ 231. The whole power of war being vested in congress, it may authorize general hostilities, in which the general rules of war apply, or partial hostilities, in which the rules of war apply only so far as they apply to the actual situation. Talbot v. Seeman, 1 Cr., 28.

$232. Legalizing executive acts.- Congress has constitutional power to legalize and confirm executive acts, proclamations and orders done and made for the public good, although they were not, when done, authorized by any existing law. Such legislation by congress may be made to operate retrospectively to confirm what may have been done under such proclamations and orders, so as to be binding upon the government in regard to contracts made and the persons with whom they were made. So the third section of the act of congress of August 6, 1861, legalizing the acts, proclamations and orders of the president, after the 4th day of March, 1861, respecting the army and navy, and calling out and regulating the militia and volunteers of the states, is constitutional and valid, and gives them the same

force and effect as if they had been issued and done under previous authority and direction of congress. In re Stevens,* 24 Law Rep., 217.

§ 233. Paper money. The acts of congress known as the Legal Tender Acts, making treasury notes a legal tender for payment of debts, being appropriate means for carrying into execution the legitimate powers of the government, and not being forbidden by the letter or spirit of the constitution, are constitutional. And this, whether applied to debts contracted before or after the passage of the acts. (CHASE, C. J., and CLIFFORD, FIELD and NELSON, JJ., dissent.) Legal Tender Cases, 12 Wall., 457; overruling Hepburn v. Griswold, 8 Wall., 603 (MILLER, SWAYNE and DAVIS, JJ., dissenting); Railroad Co. v. Johnson, 15 Wall., 195; Latham v. United States,* 1 Ct. Cl., 151. Power over a particular subject may be exercised as auxiliary to an express power, though there is another express power relating to the same subject, less comprehensive; and hence the power conferred on congress to "coin money, regulate the value thereof, and of foreign coin," contains no implication that nothing but that which is subject to coinage can ever be declared by law to be money, or to have the uses of money. On the contrary, if this grant of power, together with the prohibition on the states to coin money, emit bills of credit, or make anything but gold and silver a legal tender, raises any implications, they are implications of complete power in congress over the currency, as is incident to sovereignty in other nations. Legal Tender Cases, 12 Wall., 457. See MONEY.

§ 234. In inquiring into the power of congress to make treasury notes a legal tender for debts, the time when the act was passed and the circumstances in which the government then stood must be considered. Ibid.

§ 235. The argument that under the constitutional provision respecting the standard of weights and measures, and that conferring the power to coin money and regulate its value, there can be no uniform standard of weights without weight, or measure without length or space, or a standard of value made of that which itself has no value, does not affect the validity of the acts making paper money a legal tender, since the legal tender acts do not attempt to make paper a standard of value, but make the promises of the government equivalent to money. Ibid.

$236. Confiscation of rebels' property. The act of congress of July 17, 1862, entitled "An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes," being intended, except the first four sections, not to reach any criminal personally, but to insure a speedy termination of the rebellion then present, which was a war, and which congress had recognized as a war, is held to be constitutional as an exercise of the war power of the government, and was not enacted by virtue of the sovereign rights of the government. (FIELD and CLIFFORD, JJ., dissent; holding that the provisions of the act are an exercise of the municipal, and not the war, power of the government, and not being in accordance with the constitution, are void.) Miller v. United States, 11 Wall., 268; Tyler v. Defrees, 11 Wall., 331; S. P., as applied to the Revolution, Beach v. Woodhull, Pet. C. C., 2. See WAR.

§ 237. Suspension of writ of habeas corpus.- The act of congress of March 3, 1863, authorizing the president to suspend the writ of habeas corpus, must be assumed to be constitutional. It is left entirely with congress to say when the necessity for such act arises, and the fact that they have seen fit to exercise the power is conclusive of the existence of the necessity. McCall v. McDowell, Deady, 248. As to Writ of Habeas Corpus, see WRITS.

238. Suspension of statute of limitations. The act of June 11, 1864, declaring "that whenever, during the existence of the present rebellion, any action, civil or criminal, shall accrue against any person who, by reason of resistance to the execution of the laws of the United States, or the interruption of the ordinary course of judicial proceedings, cannot be served with process for the commencement of such action or arrest of such person,— or whenever, after such action, civil or criminal, shall have accrued, such person cannot, by reason of such resistance of the laws, or such interruption of judicial proceedings, be served with process for the commencement of the action, the time during which such person shall be beyond the reach of judicial process shall not be deemed or taken as any part of the time limited by law for the commencement of such action," operates not only prospectively but also retrospectively. And the time elapsed, referred to, may be deducted from the time of limitation, whether before or after the passage of the act. It applies to cases in state courts and federal courts, and is constitutional. Stewart v. Kahn, 11 Wall., 493. See LIMITATIONS.

§ 239. Authorizing secretary of treasury to make regulations. It is held that congress had constitutional power to authorize the secretary of the treasury to establish all such general and special regulations as might be necessary to carry into execution the purposes of an act providing that "no goods, wares or merchandise shall be taken into a state declared in insurrection, or transported therein, except to and from such places and to such monthly amounts as shall have been previously agreed upon in writing by the commanding general of

the department in which such places are situated and an officer designated by the secretary of the treasury for that purpose.' United States v. The Schooner Francis Hatch,* 13 Am. L. Reg., 289.

240. Power to call out militia.- The act of congress of 1795, empowering the president to call forth the militia of the states, whenever the United States shall be invaded, or in imminent danger of invasion from any foreign nation or Indian tribe, is within the constitutional power of congress. Martin v. Mott, 12 Wheat., 19. See WAR; also § 128, 129, supra.

§ 241. Government of territory. The constitution of the United States provides that congress shall make all needful rules and regulations for the government of the territory of the United States, but this clause applies only to the territory then in existence, and has no operation as to territory ceded to the United States from foreign governments. This the United States holds as territory to be erected into states, and legislates for its government because that is a matter of necessity. This territory is held in trust by the United States for the benefit of the people, and congress is limited in its legislative action by all restrictions imposed upon it by the constitution in regard to the rights of persons and property. In such territory, therefore, congress cannot deprive a person of his property without due process of law and just compensation, and the right of property in slaves is as much within the protection of the law as the right in any other property. Therefore the act of congress of 1821, the "Missouri Compromise," prohibiting slavery in the territory acquired from France north of 36° 30′ north latitude, was unconstitutional and void and the removal of a slave into such territory did not entitle him to his freedom. (MCLEAN and CURTIS, JJ., dissent.) Scott v. Sandford, 19 How., 432. As to Territories, see STATES.

§ 242. Suits against corporations in name of attorney-general — Vested rights — Due process.― Congress has no authority to authorize the attorney-general to institute a suit in the name of the United States upon a cause of action belonging to a corporation chartered by them. Moneys recovered in such an action would belong to the United States, and to give effect to such an act would be to deprive one of his property without due process of law. Congress has no power thus to appropriate to itself property belonging to another. Congress would have an undoubted power to regulate the conduct of suits and prescribe the form of action, but it cannot, under the form of regulating the remedy, impair contracts, or dispose of the rights of property. United States v. Union Pac. R'y Co., 11 Blatch., 392. (But see CORPORATIONS, SS 1670-81.)

§ 243. Appointment of officers.- A clerk of court is one of the inferior officers which the constitution provides that congress may vest the appointment of in the president, the courts, or heads of departments, and the appointment of such a clerk is therefore properly vested by congress in the court of which he is clerk. Ex parte Hennen, 13 Pet., 257. See

OFFICERS.

§ 244. An act of congress vesting the appointment of deputy marshals and supervisors at congressional elections, to secure peace and honesty thereat, in the United States circuit court, is a legitimate exercise of the power vested in it by the provision in the constitution that "the congress may, by law, vest the appointment of such inferior officers as they think proper in the president alone, in the courts of law, or in the heads of departments." Ex parte Siebold, 10 Otto, 371 (§§ 326–343).

$245. Adopting state legislation.- Whether congress can adopt state legislation upon any subject prospectively, quære. In re Freeman, 2 Curt., 495.

§ 246. Resolutions of congress.— A resolution of one house of congress can have no effect in coercing the action of a head of a department, for otherwise it would be possible for one house to nullify an act of congress. Nor would the resolution of both houses be of any effect. In no other way than by a constitutional law, enacted in the manner prescribed by the constitution, can the action of the executive be affected. It seems that if an act which requires any act by a head of a department ministerially receives the sanction of the president, it becomes binding, but is otherwise unconstitutional and void. Resolutions of Congress,* 6 Op. Att'y Gen'l, 681.

Ibid.

$247. A joint resolution of congress differs from an act only in form. $248. Power to acquire territory. It seems that inasmuch as the constitution has conferred absolutely on the government of the Union the powers of making war and making treaties, that government possesses the power of acquiring territory either by treaty or conquest. American Ins. Co. v. Canter, 1 Pet., 542. See STATES.

§ 249. Sovereignty cannot be set up to defeat private rights. When the government, in the exercise of the rights and functions of a civil corporation, purchases lands to secure a debt, the accident of its sovereignty in other functions cannot be set up to destroy or affect the rights of persons claiming title to or a lien on the same lands. A bill may be brought to foreclose a mortgage on such land, to which the officers of the United States may be a party in her behalf. Elliot v. Van Voorst, 3 Wall. Jr., 299.

$250. Power over public lands.- Congress has the sole power to declare the dignity and effect of titles emanating from the United States. Bagnell v. Broderick, 13 Pet., 450. See LANDS.

§ 251. Under that clause of the constitution which confers upon congress power to dispose of the territory of the United States, the public lands may be leased as well as sold. United States v. Gratiot, 14 Pet., 537.

$252. That clause of the constitution which confers upon congress power to dispose of and make all needful rules and regulations respecting the territory or other property of the United States, confers upon congress the exclusive authority to make any appropriation of public land for any purpose. United States v. Fitzgerald, 15 Pet., 421.

$253. It seems that within the limits of a state, congress can, in regard to the disposition of the public lands and their protection, make all needful rules and regulations. But beyond this it can exercise no act of sovereignty which it may not exercise in common over the lands of individuals. United States v. Railroad Bridge Co., 6 McL., 532; New Orleans v. United States, 10 Pet., 737.

§ 254. Acts of congress do not shelter those who violate state laws.-The ordinances of a city in conflict with the laws of congress are void. But if there is no such conflict, an act of congress will not shelter one from a penalty under an ordinance. United States v. Hart, Pet. C. C., 390.

$255. Toll imposed on passengers carried in mail coaches on Cumberland road.— An act of the legislature of Ohio, imposing upon passengers, conveyed in mail coaches over that part of the Cumberland road within that state, a certain toll per head, while persons carried in other carriages passed free, in effect imposed a toll upon mail coaches, and was held void for the reason that it imposed on the United States a part of the burden of maintaining the road, which, by the terms of the compact made between the United States and Ohio, at the time that portion of the road was ceded to the state, was to be done by the latter. The fact that the toll was laid upon the passengers was an indirect imposition of a burden on the United States, as it must diminish the revenues of the mail contractors, and so increase the amount which the government would be obliged to pay. Neil v. State of Ohio, 3 How., 740; Achison r. Huddleson, 12 How., 297.

§ 256. Exempting persons from consequence of acts during rebellion.- The act of congress of March 2, 1867, is held to be constitutional, so far as it was intended to protect from civil process the officers and others who, as subordinates of the president, had striven to put down the rebellion, and whose acts had rendered them amenable to legal proceedings; and unconstitutional so far as it was intended to validate the punishment of offenders, which would otherwise be illegal. In re Murphy, 1 Woolw., 141. See WAR. $257. Congress cannot impose duty on state officers.

The federal government, under the constitution, has no power to impose on a state officer, as such, any duty whatever and compel him to perform it. So the clause in the act of congress enacted to carry out the provisions of the constitution relating to the surrender of fugitives from justice, which declares that "it shall be the duty" of the governor of a state, on proper demand, to cause the person charged with the crime to be arrested, etc., is not mandatory and compulsory, but is simply declaratory of the moral and constitutional duty of the governor in the premises. And if the governor of a state shall refuse to discharge this duty, there is no power delegated to the general government, either through the judicial department or any other department, to use any coercive means to compel him. Commonwealth of Kentucky v. Dennison, 24 How., 107.

$258. Patents.- A special act of congress extending a patent for a fixed term is constitutional. Bloomer v. Stolley, 5 McL., 160; Jordan v. Dobson,* 7 Phil., 542. See PATENTS.

$259. The power of congress to legislate upon the subject of patents is plenary by the terms of the constitution, and as there are no restraints on its exercise, there can be no limitation of the right of congress to modify the rights of a patentee, so long as it does not take away rights of property in existing patents. McClurg v. Kingsland, 1 How., 206.

$260. Congress has power to pass an act which operates retrospectively to give a patent for an invention, which, though made by the patentee, was in public use and enjoyed by the community at the time of the passage of the act. Blanchard v. Sprague, 2 Story, 164.

$261. A state law which provides that no person shall sell any patent right within the state until he shall have filed with the county clerk certain certificates and affidavits, and which provides a penalty for its infringement, is unconstitutional and void. The property in inventions exists by virtue of the laws of congress, and no state has a right to interfere with its enjoyment, or to annex conditions to the grant. If the patentee complies with the law of congress on the subject, he has a right to go into the open market anywhere in the United States and sell his property. If this were not so, it is easy to see that a state could impose terms which would result in a prohibition of the sale of this species of property

within its borders, and in this way nullify the laws of congress which regulate its transfer, and destroy the power conferred upon congress by the constitution. Ex parte Robinson, 2 Biss., 313.

§ 262. A state cannot, by legislation, interfere with patents granted under the constitution and laws of the United States, or impair their value; and a law making notes given in consideration of patent rights subject to defenses in the hands of bona fide purchasers, in derogation of the rules of the common law, is void. Woollen v. Banker,* 2 Flip., 33.

§ 263. Trade marks.-The act of congress of August 14, 1876 (19 Statutes at Large, 141), punishing the counterfeiting of trade marks, is unconstitutional and void, as is also the other legislation of congress providing for the registration and exclusive use of trade marks. Trade Mark Cases, 13 Otto, 96; Leidersdorf v. Flint, 8 Biss., 328.

§ 264. An appropriation made to a person by act of congress is as authoritative as any other act of congress which makes the law of the land, and the amount is not to be anywhere questioned or reduced. Syphax v. United States,* 7 Ct. Cl., 530.

§ 265. During the revolutionary war the supreme power an 1 authority was vested in congress and nowhere else. Penhallow v. Doane, 3 Dal., 80.

$266. Regulating sale of oils - Police power.- Section 29 of the act of congress of March 2, 1867, declaring "that no person shall mix for sale naphtha and illuminating oils, or shall knowingly sell or keep for sale, or offer for sale, such mixture, or shall sell or offer for sale oil made from petroleum for illuminating purposes, inflammable at less temperature or first test than one hundred and ten degrees Fahrenheit; and any person so doing shall be held guilty of a misdemeanor," etc., cannot be considered as an appropriate and plainly adapted means for carrying into execution the power of laying and collecting taxes. It is a police regulation relating to the internal trade of the states, and as such can have no constitutional operation except in places under the exclusive control of the legislative authority of congress. Filor v. United States,* 9 Wall., 41.

§ 267. Rights of new states.- An act of congress which pretends of right, and without consent or compact, to impose on the municipal power of any new state or states limitations and restrictions not imposed on all, is contrary to the fundamental condition of the confederation, according to which there is to be equality of right between the old and new states "in all respects whatever." Eminent Domain of the States,* 7 Op. Att'y Gen'l, 576.

§ 268. The sovereignty and jurisdiction of new states admitted into the Union are not governed by the common law of England as it was in force in the colonies before the Revolution, but as modified by our own institutions. Pollard v. Hagan, 3 How., 229. See STATES.

§ 269. On the admission of Alabama into the Union she succeeded to all the rights of sovereignty, jurisdiction and eminent domain possessed by Georgia at the time of the latter's cession of her territory to the United States, except only the right of the United States to the waste and unoccupied lands within the new state, and the state became thereupon entitled to the soil under the navigable waters of the state not previously granted, and no action of the United States concerning any part thereof was of any force or effect. Ibid.

§ 270. Where a naval or military reservation has been created in a territory, the jurisdiction of a state which includes it attaches upon the admission of such state into the Umon, if nothing is specified in the act of admission as to the exercise of such jurisdiction. Eminent Domain of the States,* 7 Op. Att'y Gen'l, 571.

$271. On the passage of the act of congress admitting Texas into the Union, and acts of congress establishing the revenue and judicial system therein, the old system of laws was abrogated entirely so far as it conflicted with the laws of the United States. Calkin v. Cocke, 14 How., 235.

§ 272. The admission of Texas into the Union had no effect to annul limitation laws enacted by the republic as to actions on judgments rendered in the United States. After such admission the authenticity of a judgment in another state, and its effect, were to be tested by the constitution of the United States and the acts of congress, and under that constitution each state has a right to legislate upon the remedy in suits on judgments of other states, exclusive of all interference with their merits. Bacon v. Howard, 20 How., 25.

§ 273. On the admission of the territory of Florida into the Union, the territorial government was displaced and every part of it abrogated, and no jurisdiction existed in it except that derived from the state authority and from the federal constitution and laws of congress; and especially no jurisdiction in federal cases existed until congress extended the jurisdiction of the federal courts over it. So, though the courts of the territory were to be continued as the courts of the state, still those courts, being state courts, could exercise no control over federal cases pending in them at the time of the admission of the territory into the Union. Benner v. Porter, 9 How., 242.

§ 274. Admission of West Virginia.- The act of congress admitting the state of West Virginia into the Union is held to be a sufficient consent by congress, under the constitu