being authorized to make regulations of its own, or to alter regulations made by any state, can by statute impose duties on state officers of election, punish the non-performance by such officers of their duties, whether imposed by laws of the state or by acts of Congress, and provide for the appointment of officers of the United States to execute the regulations as made by Congress or by the states.16 It has also been held that Congress can, for the protection of the voters at congressional elections, punish acts of violence or intimidation done in furtherance of a conspiracy to prevent a voter from exercising the franchise at such elections;17 and it can punish interference with election officers when engaged in the discharge of their official duties.18

The appointment and mode of appointment of electors belong exclusively to the states. Congress is empowered to determine the time of choosing electors and the day on which they shall give their votes, which must be the same day throughout the United States, but otherwise the power and jurisdiction of the state is exclusive, with the exception of the provisions as to the number of electors and the ineligibility of certain persons, so framed as to exclude federal influence.19

Immigrants and aliens.

124. The states cannot,20 and the United States can,21 control and regulate immigration and the residence of aliens in the United States. This power is an incident of sovereignty which cannot be alienated in the exercise of

16 Ex parte Siebold, 100 U. S. 371; Ex parte Clarke, ibid. 399; In re Coy, 127 id. 731.

Ex parte Yarbrough, 110 U. S. 651.

18 Connors v. U. S., 158 U. S. 408.

1o McPherson v. Blacker, 146 U. S. 1; In re Green, 134 id. 377.

20 Chy Lung v. Freeman, 92 U. S. 275, 280.

21 The Chinese Exclusion Case, 130 U. S. 581.

the treaty-making power.22 Congress may, therefore, prohibit the immigration of any class of persons; it may expel, and compel the deportation of, resident aliens; and 23 it may forbid the transit of aliens across the territory of the United States.24 Congress may authorize the courts to investigate and ascertain the facts on which depends the right to land or to remain in the country; 25 or it may entrust to administrative officers the final determination of these facts; 26 and the decisions of such officers will constitute due process of law,27 and will be binding on the courts. Congress may authorize a United States commissioner to determine the facts upon which citizenship depends.28 While Congress may, as a means to give effect to the legislation excluding or expelling aliens, authorize their detention in temporary confinement, Congress nevertheless cannot, unless provision be made for a judicial trial, declare an unlawful residence in the country to be an infamous crime punishable by imprisonment at hard labour.29 An administrative officer when executing a statute affecting the liberty of persons may not disregard the fundamental requirement of due process of law. There must, therefore, be adequate notice to, and a hearing of, the person affected; 30 but defects in the form of the proceeding will not affect its validity, or the finality of its conclusion.31 The existing legislation is applicable only to persons owing allegiance to a foreign government, and,

22 The Chinese Exclusion Case, supra.

23 Fong Yue Ting v. U. S., 149 U. S. 698.

24 Fok Yung Yo v. U. S., 185 U. S. 296.

25 U. S. v. Jung Ah Lung, 124 U. S. 621.

26 U. S. v. Sing Tuck, 194 U. S. 161; Li Sing v. U. S., 180 id. 486.

"Nishimura Ekiu v. U. S., 142 U. S. 651, 660.

28 U. S. v. Wong Kim Ark, 169 U. S. 649; Chin Bak Kan v. U. S., 186 id. 193.

"Wong Wing v. U. S., 163 U. S. 228.

20 The Japanese Immigrant Case, 189 U. S. 86.

31

Fong Yue Ting, 149 U. S. 698, 729; Chin Bak Kan v. U. S., 186 id. 193.

32

therefore, does not affect citizens of Porto Rico; nor does it affect a child born in the United States of parents who, while remaining aliens, have a permanent domicile and residence in the United States.3

Personal and property rights.

33

125. The states retain full control over the personal and property rights of their citizens and of residents within their territory, subject to the restraints imposed by the Constitution.34 The states retain the power of regulating the tenure of real property within their respective limits, including the mode of its acquisition and transfer, the rules of its descent, and the extent to which a testamentary disposition may be made of such land by its owner, and a state may forbid the United States, by reason of its not being a corporation created by the laws of that state, to take by devise lands within the state.35 The states may legislate specially for the sale or investment of the estates

32 Gonzales v. Williams, 192 U. S. 1.

33 U. S. v. Wong Kim Ark, 169 U. S. 649.

34 The first eight Amendments bind only the federal government: Spies v. Illinois, 123 U. S. 131, 166; Eilenbecker v. Plymouth County, 134 id. 31; In re Kemmler, 136 id. 436; McElvaine v. Brush, 142 id. 155; Thorington v. Montgomery, 147 id. 490; Moore v. Missouri, 159 id. 673; Brown v. New Jersey, 175 id. 172; C. C. D. Co. v. Ohio, 183 id. 238; Ohio v. Dollison, 194 id. 445. The provision of the XIV Amendment that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States' protects, it seems, only those rights which are secured against state encroachment by other clauses of the Constitution. See In re Kemmler, 136 U. S. 436, 448; Giozza v. Tiernan, 148 id. 657, 661; Duncan v. Missouri, 152 id. 377, 382; Maxwell v. Dow, 176 id. 581; Slaughter House Cases, 16 Wall. 36, 79; Bartemeyer v. Iowa, 18 id. 129; Presser v. Illinois, 116 U. S. 252; Mugler v. Kansas, 123 id. 623; In re Lockwood, 154 id. 116; Gray v. Connecticut, 159 id. 74; Plessy v. Ferguson, 163 id. 537; Holden v. Hardy, 169 id. 366; Cumming v. Board of Education, 175 id. 528; W. P. S. C. v. Casperson, 193 id. 189; Ohio v. Dollison, 194 id. 445. The Amendment does not extend to state legislation the restrictions which the first eight Amendments impose upon congressional action: Maxwell v. Dow, 176 U. S. 581, 597. Harlan, J., dissented.

35 U. S. v. Fox, 94 U. S. 315.

38

of infants and other persons not sui juris.36 The shores of navigable waters, and the soil under those waters, were not granted by the Constitution to the United States, but were reserved to the riparian states respectively, and new states have the same rights, sovereignty, and jurisdiction over this subject as the original states.37 The United States having no proprietary title to lands on the shore of a state, under navigable waters and below high-water mark, can grant no valid title thereto.3 A state may, therefore, prohibit, or license under regulation, the taking of oysters and fish in the navigable waters within its limits.39 The states may determine what classes of persons shall come and remain within their territory,40 provided, of course, that they do not thereby impair the rights of intercourse and traffic secured by the Constitutions to citizens of other states, nor come into conflict with the regulations made by the United States as to immigration and the residence of aliens.41 The Constitution makes no provision for the protection of the citizens of the several states in their religious liberty, and imposes no restraints on the states in that respect. Therefore, a judgment of a state court imposing a fine upon a clergyman for violation of a municipal ordinance regulating the place and manner of conducting funeral services, is not subject to review in the Supreme Court of the United States.42

37 Pollard v. Hagan, 3 How. 212; Weber v. Harbour Commissioners, 18 Wall. 57; Shively v. Bowlby, 152 U. S. 1; M. T. Co. v. Mobile, 187 id. 479. * Pollard v. Hagan, 3 How. 212; Goodtitle v. Kibbe, 9 id. 471; Doe v. Beebe, 13 id. 25; U. S. v. M. R. Co., 189 U. S. 391.

3 Smith v. Maryland, 18 How. 71; McCready v. Virginia, 94 U. S. 391.

40 Holmes v. Jennison, 14 Pet. 540; Groves v. Slaughter, 15 id. 449; Prigg v. Pennsylvania, 16 id. 539.

Supra, Sec. 124.

* Permoli v. First Municipality, 3 How. 589.

The rights within a state of citizens of other states.

44

126. Section 2 of Article IV of the Constitution declares that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." As Miller, J., said, in the Slaughter House Cases,43 the "sole purpose" of this constitutional provision "was to declare to the several states, that whatever those rights, as you grant or establish them to your own citizens, or as you limit, or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other states within your jurisdiction." Washington, J., said, in Corfield v. Coryell,45 the privileges and immunities in question are those "which are fundamental, which belong of right to all citizens of all free governments, and which have at all times been enjoyed by citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign," including "protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole." In Paul v. Virginia,46 Field, J., said, "The privileges and immunities secured to citizens of each state in the several states . . . are those privileges and immunities which are common to the citizens in the latter states under their constitutions and laws by virtue of their being citizens. Special privileges enjoyed by citizens in their own states are not secured in other states by this provision. It was not intended by the provision to give

43 16 Wall. 77.

**See, on the same line, Kimmish v. Ball, 129 U. S. 217, 222. Compare T. I. Co. v. Connecticut, 185 id. 364.

45 4 Wash. C. C. 371.

40 8 Wall. 180.