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To pre

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review case, and executive

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356. Important as extradition is as an instrument for the punishment of crime, there can be no question that it may be so abused as to subject an accused party court may to extortionate or oppressive demands. vent such abuses of a process so critical, important checks are applied. There should be a full and impartial examination of the case before the commissioner authorized to hear it. The circuit court, from which the commission emanates, has the power of review, and even though by this court the proceedings of the commissioner ordering a surrender be approved, the warrant to surrender may be refused by the executive. It is also held that the surrender may be on such conditions as the executive may impose. The demanding state which accepts surrender on these conditions is afterwards bound by them.

to offence

specified in

demand.

357. In some treaties it is provided that the accused shall only be tried for the offence specified in the demand. Trial But, apart from such restriction, the trial, as a should be matter of justice, ought to be so confined. Extradi- restricted tion is a process of high prerogative, and is fraught with consequences too serious to the accused to permit it to be used merely as a pretext to get within the grasp of the demanding state a person who might not have been delivered if the offence for which he was to be tried had been truly stated. It is proper, also, that in so delicate and important a procedure, no material variance between the demand and the indictment used on trial should be permitted. But this does not preclude varying, when the case comes to trial, the statement of the stage of the offence, or of its formal incidents, as where conspiracy to cheat by false pretences is substituted for cheating by false pretences, or larceny for robbery.2

1 The mode of procedure is given in Whart. Conf. of Laws, §§ 842 et seq.

2 Whart. Conf. of Laws, §§ 846 et seq. As to practice under Federal constitution, see infra, § 541.

The English extradition statutes protect a person delivered on an extradition treaty from being tried for any other offence than that on which he was extradited, until he has had an

opportunity to return to his own country. This, however, does not protect him from arrest on attachment. Pooley v. Whetham, 15 Ch. D. 435; London Law Times, July 31, 1880, 352.

As sustaining the view of the text see State v. Vanderpool, S. C. Ohio, 1883.

For rulings disputing this position, see Whart. Conf. of Laws, § 846.

CHAPTER VI.

CONSTITUTIONAL LAW.

I. PRELIMINARY CONSIDERATIONS.

Constitution the result of existing conditions, § 359.

Prominence assigned to these conditions in construction of constitution, § 360.

The formation of a stable government necessary, § 361.

And so of interposition of such checks as would prevent hasty and ill-considered changes of public policy, § 362.

And so of distribution of power in local

governments, § 363.

This policy required by race tendency to institutionalism, § 364. Government to possess only such functions as cannot be conveniently exercised by people, § 365.

II. PRINCIPLES OF CONSTRUCTION. American institutions revolutionary, § 368.

In states people are supreme arbiters, § 369.

Constitution not a league, § 370. Was adopted by the people of the states, § 371.

In the exercise of powers given to it general government is supreme, subject to restrictions of constitution, § 376.

Importance of preserving constitutional demarcations, § 377.

Coercion of state and maintenance of Federal authority not convertible, § 378.

Limitations in constitution apply to

general government unless expressly applied to states, § 379. Necessity does not abrogate constitu

tional limitations, but progressive conditions unfold them, § 380. Powers of state and federal governments may be coördinate, § 381. State laws followed as to state procedure, § 382.

Treaties and statutes come in pari passu, § 383.

Presumption as to unconstitutionality, § 384.

Unconstitutional part may be rejected, § 385.

Statutes must be constitutionally passed, § 386.

Confirms sovereignty in the states, § 372. III. RELATIONS OF DEPARTMENTS OF

Recent amendments strengthen this view, § 373.

"Nation" properly applicable to the people of the United States as a body; "State" to the particular states; "Sovereignty" is not necessarily absolute, § 374.

"Territories" not included in term "States," § 375.

GOVERNMENT.

Legislative, judicial, and executive functions to be kept separate, § 388. Judiciary cannot supervise matters purely political, § 389.

Dangerous consequences of judicial assumption of such functions, § 390.

Courts cannot compel executive to tes

tify or exact disclosure of political | Tax cannot be laid for merely private secrets, § 391.

end, but the fact that a private end will be furthered will not vitiate tax for public purpose, § 411.

Courts cannot annul laws because unjust, § 392. Inconsiderate legislation prevented by Power to tax involves power to establish reciprocal checks, § 393. tax machinery, § 412.

Supreme court not thereby made ab- Congress has discretion as to objects, solute, § 394.

Senate is the representative of the states, and has coördinate legislative powers, § 395.

House of representatives elected by the people on state franchise, and has coördinate legislative powers; and elects its own speaker, § 396. Each house determines its own elec

tions and rules; is bound to keep a journal; requires a majority for a quorum; may punish for contempt; is limited as to adjournment; is privileged as to debate, and may expel members, § 397.

President has a qualified veto, § 398. Civil officers may be impeached, § 399. Amendments may be made by convention or by action of congress and states, § 400.

Inferences to be drawn from the obsta

cles interposed, § 401.

IV. TAXATION.

Power of taxation vested in congress, but taxing must be uniform, § 404. "Tax" a generic term, § 405. Taxation not necessarily conditioned on representation, § 406. Direct taxation limited to poll and land tax, § 407.

Limitation as to exports does not attach to things that may be exported, nor to embargoes or inspection laws, § 408. United States government cannot tax state, nor state United States property, § 409.

State taxes imposing terms on imports and on travel are unconstitutional, § 410.

but not as to particular persons, § 413. Collateral intent to protect does not vitiate tax, § 414.

But not when duties are prohibitive, § 415.

Congress in borrowing money may give

proper securities, § 416.

Borrowing implies the right to borrow

through a bank, § 417.

State may tax generally, § 417 a.

V. REGULATION OF COMMERce. Power meant to secure freedom of trade between states, § 418. This required by diversity of climate, of soil, of population, § 419. State cannot close interstate waters, § 420.

United States has exclusive power of regulating foreign and interstate commerce, § 421.

Commerce may be regulated on land, § 422.

Exception as to matters of necessarily local law, § 423.

Quarantine laws are under state power. So of wharfage and pilotage laws, § 424.

Does not prevent states from exercising police exclusion, § 425.

Restriction does not touch purely interstate transactions, § 426. Establishing by state of ferries and river improvements not forbidden, § 427.

Power authorizes laws limiting liability of ship owners, § 428. Extends to rivers and tributary to lakes, § 429.

Tonnage duties prohibited, § 430.

VI. NATURALIZATION. Congress has power to establish uni

form naturalization, § 431. Persons born in a state are subject to

its jurisdiction, § 432. Naturalization results from annexation, § 433.

Tribal Indians are not citizens, § 434. Chinese cannot be naturalized, § 435. Aliens entitled to equal civil rights

with citizens, § 436. Citizenship of a state does not involve citizenship of the United States, and the converse, § 437.

VII. BANKRUPTCY.

a right by force, and may exist without a formal declaration, § 454. Property of belligerent may be captured, § 455.

Power to raise armies sustains standing army, and conscription, § 456. Militia may be called out by general government, § 457.

States subordinated in this respect to the United States, § 458. Congress may make rules for regulation of army and navy, but cannot supersede civil courts, § 459.

XIII.

DISTRICT OF COLUMBIA, CEDED PLACES AND Territories.

Congress has power as to bankrupt- In district and ceded places congress cies, § 439. has exclusive jurisdiction, § 461. Jurisdiction extends to cases of insol. Congress holds territories in trust, vencies, § 440.

VIII. MONEY AND BILLS OF CREDIT.

Congress may coin money and regulate its value, § 442.

§ 462.

Title to land of territories is in the United States, § 463.

Government to be under general safeguards of constitution, 464.

States cannot issue bills of credit, Form of government at discretion of

§ 443.

Congress may punish counterfeiting, § 444.

IX. POSTAL SERVICE. Congress has power to make arrangements for postal service, § 446. Question whether congress can create "post-roads" is political, and not judicial, § 447.

"Post-office" is any receptacle for mail matter, § 448.

X. COPYRIGHTS AND PATENTS. Power of granting is exclusively in congress, § 450.

XI. PIRACIES AND FELONIES. Congress has jurisdiction over piracies and felonies on the high seas, § 452.

XII. WAR. War is the prosecution by a nation of

congress, § 465.

XIV. TREASON.

Treason works no forfeiture except for life, § 467.

XV. INCIDENTAL POWERS. Congress may make laws to carry into effect enumerated powers, § 468.

XVI. BILLS OF ATTAINDER. Bills of attainder forbidden, § 471.

XVII. Ex POST FACTO AND RETROSPEC-
TIVE LAWS.
Limitation relates to criminal prosecu-
tions, § 472.

Law changing procedure not necessa-
rily ex post facto, § 473.
Nor are laws modifying rules of evi-
dence, § 474.

Under state constitutions retrospective laws are unconstitutional, § 475.

XVIII. LAWS IMPAIRING THE OBLIGATION State constitution may conflict, § 498.

OF CONTRACTS.

Constitutional limitation prompted by political and business dangers, § 477.

All legislation impairing antecedent legal contracts invalid, § 478.

XIX. POWERS OF EXECUtive.

President commands army, navy, and militia, § 502.

Has no power, as commander-in-chief, to dispense with law as a system, § 503.

Limitation applies to contracts of all Cabinet composed of heads of depart

kinds executed by state, § 479. Indebtedness incurred in accordance with state law will be sustained though there be contrary decision by state court, § 480. Legislation rescinding grants of private franchises or of estates may be invalid, § 481.

Stipulation not to tax may bind, § 482. Growing doubts as to perpetuity of grants of franchises, § 483. Distinction between temporary and perpetual engagements, § 484. Grants to municipal corporations may be revoked, § 485.

License may be withdrawn, § 486. Charter no protection to a nuisance, § 487.

Charters and grants restrictive of freedom of business may be rescinded, § 488.

State control over oppressive charters

may be justified on the ground that this is a regulation of commerce, § 489.

Danger of resting function on the

right of state to control business, § 490.

When right of amendment is reserved,

charter can be amended, § 491. Laws modifying remedies are not unconstitutional, § 492.

ments, § 504.

President, with advice and consent of

senate, may make treaties, § 505. Treaties are in some respects self-enforcing, but not in respect to matters requiring legislative action, § 506. President has power to reprieve and pardon, § 507.

Exception as to impeachment and contempt, § 508.

Pardons may be conditional, § 509. Pardon before sentence remits costs and penalties, § 510.

President has power of appointment and removal, § 511.

Has qualified legislative functions, § 512.

Cannot be controlled by judicial writ, § 513.

XX. POWERS OF JUDICIARY. Judicial power of the United States extends to cases under United States constitution, laws, and treaties; to cases of admiralty and maritime jurisdiction; and cases in which the United States or states are parties, § 516.

Judicial powers are in the main apportioned by congress, § 517.

Supreme court has no general or final jurisdiction, § 518.

But not when the obligation of the con- Supreme court has final jurisdiction in

tract is impaired, § 493. Statutes modifying evidence are not unconstitutional, § 494.

State discharges do not bind citizens of other states, § 495.

Marriage not within limitation, § 496. Nor is tenure of public office, § 497.

all conflicts with state courts as to Federal constitution and laws, § 519. "Citizen" in the clause giving Federal courts jurisdiction means "resident," § 520.

By statute cases may be removed from state to Federal court, § 521.

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