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Statutes modifying evidence

not uncon

the defects in certain classes of records so as to make them admissible. Statutes, also, making defective records admissible, have been held to be constitutional.2 But as we have seen, statutes making evidence stitutional. conclusive, are unconstitutional, as being a violation of the constitutional rule requiring that property shall not be taken except in due course of law. Nor, according to the weight of opinion, is a Federal statute, requiring that unstamped documents shall not be received in evidence, binding in state courts. Statutes, also, modifying the rules of evidence, are not ex post facto in respect to prior transactions prosecuted as crimes unless they render that criminal which was not criminal before the passage of the statute."

State dis

495. As has been already stated, a state insolvent discharge does not bar debts incurred prior to the statute charges do authorizing it; nor as to subsequent debts, does it bind citizens of other states unless validating such procedure. But where there is a contract between two citizens of the same state, one of whom subsequently removes to another state, the removal does not relieve

not bind citizens of other states.

tion after sale. Lapsley v. Brashears, 4 Litt. (Ky.) 58; 7 T. B. Mon. (Ky.) 47; Cargill v. Power, 1 Mich. 369; Robinson v. Howe, 13 Wis. 341.

"4. Which exempt from sale under judgment for the debt a larger amount of the debtor's property than was exempt when the debt was contracted. Edwards v. Kearney, 96 (U. S.) 595, and the cases there cited; Story's Commentary on the Constitution, § 1385.

"There are numerous similar decisions showing that a change of the law which hindered or delayed the creditor in the collection of his debt, though it related to the remedy or mode of procedure by which that debt was to be collected, impaired the obligation of the contract within the meaning of the constitution."

See Durkee v. Board of Liquidation, 103 U. S. 646; Moore v. Holland, 16 S. C. 15; Horne v. Slate, 84 N. C. 362; McClain . Easly, 4 Bax. 520; Vance v. Vance, 32 La. An. 186.

Infra, § 567; Webb v. Den, 17 How. 576.

2 Webb v. Den, 17 How. 576; infra, § 567.

Supra, § 388; infra, § 565; East Kingston v. Towle, 48 N. H. 57; Call v. Hagger, 8 Mass. 423; Groesbeck v. Seeley, 13 Mich. 329; Little Rock R. R. v. Payne, 33 Ark. 816; and cases cited in Cooley's Const. Lim., 365–9.

4 Cooley, Const. Lim., 483; Whart. on Ev., § 697, and cases there cited. 5 Supra, § 474.

• Supra §§ 439–440, et seq.

the creditor removing from an insolvent discharge by the first state.1

1 Stoddard v. Harington, 100 Mass. 87; see Baldwin v. Hale, 1 Wall. 223; Guernsey v. Wood, 130 Mass. 503; see Moore v. McMillan, 54 Vt. 27, and cases cited supra, § 446.

In Mather v. Nesbit, 13 Fed. Rep. 872, it was held that the provision of an insolvent law which does not grant a discharge of the debtor on surrender of all his property to an assignee or a receiver, but merely gives a priority to creditors who will release the debtor over those who stand back and do not accept the conditions under which his property passes to the assignee or the receiver, and who alone can receive dividends from the estate, is not in conflict with the constitution of the state or of the United States.

In Murphy v. Manning, 134 Mass. 488, it was held that in a suit on a Massachusetts judgment on a debt due to a citizen of New Jersey, an insolvent discharge under the Massachusetts statute, after the rendition of the judgment, was no defence. Holmes, J., said: "It is not denied that the original debt would not have been discharged. Ilsley v. Merriam, 7 Cush. 242; Kelley v. Drury, 9 Allen, 27; but the distinction is taken that as the plaintiffs have elected to merge the debt in a Massachusetts judgment, that judgment at all events must be subject to the state laws and is disposed of by the discharge. A very forcible argument may be made in favor of such a view, but we think there are stronger considerations on the other side, which is also supported by the weight of authority. Kelley v. Drury establishes that our insolvent laws do not shut out parties whose claims are not subject to or discharged by them from access to our state

courts. We may say more broadly that the legislature has not shown an intention to adopt a local rule as to the procedure within its control, except so far as it has power to dispose of the substantive rights in aid of which the procedure is set in motion. We are speaking, of course, of the statute affecting the present decision. It follows that unless the original debt is merged in the judgment in such a sense that the debt and not merely this form of it has become subject to Massachusetts law, we must attribute the same validity to the judgment that remains to the debt. We think that the debt is not affectedin this respect by the judgment. Ajudgment does not obliterate the essential features of the obligation on which it is rendered. Betts v. Bagley, 12 Pick. 572, 580: Choteau v. Richardson, 12 Allen, 365; Carpenter v. King, 9 Met. 511, 516. Conversely here, the plaintiff's claim before judgment, not being subject to discharge by our laws, did not lose that characteristic and become more infirm by the change, upon any ground of the substantive law. We think that the weight of authority is in favor of our conclusion, notwithstanding the dicta in Ogden v. Saunders, 12 Wheat. 213, 363, 364, and Towne v. Smith, 1 Woodb. & M. 115, 123; see Watson v. Bourne, 10 Mass. 337; Whitney v. Whiting, 35 N. H. 457; Poe v. Duck, 5 Md. 1; Brown v. Bridge, 106 Mass. 563."

In Conway v. Seamons, 55 Vt., it was held that a discharge under a state insolvent law does not bar a debt contracted before its passage, the creditor in no way becoming a party to the proceedings in insolvency; and that such debt is not discharged though

Marriage not within the constitutional limitation.

Nor is tenure of

§ 496. Marriage is not a contract in the sense of the limitation before us, and hence divorces may be granted by states having jurisdiction irrespective of the place where the marriage was solemnized.1 § 497. Nor do engagements, made by state or municipality with public officers, constitute a contract within the purview of this limitation. The salaries of such officers may be reduced or their terms of office closed by action of legislature, or of municipal board, or of constitutional convention. On the other hand, a contract between a state and a private party, whereby he is to perform certain duties for a specific period, at a stipulated compensation, is so far within the protection of the limitation, that he cannot be deprived of such compensation by the repeal of the statute under which the contract was made.3

public

office.

State constitution is under the

same limitation as is

act of legislature.

§ 498. A clause in a state constitution, impairing a prior contract, stands in the same position in this respect as an act of the legislature, and must equally yield to the superior force of the clause in the coustitution of the United States.

merged in a judgment rendered after the passage of the act, and which judgment is the basis of the suit before the

court.

1 Whart. Con. of Laws, §§ 223 et seq.; see Roth v. Ehman, 107 U. S. 319.

2 Butler v. Pennsylvania, 10 How. 402; Warner v. People, 2 Denio, 272; Conner v. New York, 1 Selden, 285; Com. v. Bacon, 6 S. & R. 522; Com. v. Mann, 5 W. & S. 403; McBlair v. Bond, 41 Md. 137; Swann v. Buck, 40 Miss. 268.

3 Hall v. Wisconsin, 103 U. S. 5; supra, §§ 477 et seq.

277; Keith v. Clark, 97 U. S. 454; Lehigh Valley R. R. v. McFarlan, 31 N. J. Eq. 706; Hays v. Com., 82 Penn. St. 517. And so of city ordinances, Hestonville R. R. v. Philadelphia, 89 Penn. St. 210. In Keith v. Clark, 97 U. S. 454, a constitutional amendment adopted in Tennessee, in 1866, providing that notes of the Bank of Tennessee, issued during the insurrectionary period, should be null and void, and should not be received for taxes, was held to conflict with the charter of the bank, which prescribed that its notes should be received for taxes, and hence that the constitutional amendment was

4 Cummings v. Missouri, 4 Wall. invalid.

580

XIX. POWERS OF EXECUTIVE.

President commands

and militia.

President has no

502. The president, when acting as commander-in-chief of the army and navy of the United States, and of the militia of the several states when called into service,' is as much governed by law as he is when army, navy, executing his civil functions, though the law which governs his actions as commander-in-chief is the law of war. When war ceases his extraordinary powers as commanderin-chief cease with it. It is not usual for him to exercise personally his military function, though this was done by General Washington during the whiskey insurrection. The ordinary course is for the president to act through the secretary of war. But his action as commander-in-chief is limited to the seat of war or to military matters connected therewith. 503. As is elsewhere seen, it is not within the power of congress to establish, even in times of war, military courts for the trial of civilians for civil offences. There is no provision in the constitution which authorizes the establishment of such a system in war or in peace. While war is raging commanding officers can no doubt hold courts-martial to try offenders against belligerent rights. When a hostile territory is occupied, the president, as commander-in-chief, may put it under military law until the civil courts can resume action. But unless at such temporary catastrophes, it is not within the power of the president, as commander-inchief, to appoint courts for either the trial of civilians for offences against the state, or for the determination of litigated civil issues. The only case in which the president, as commander-in-chief, can order the trial of a civilian by courtmartial, is where a civilian is arrested as a spy, and even in this case the party charged is arrested as a belligerent. Nor do proclamations or orders of the president, as commanderin-chief, operate on the civil relations of the country."

1 Const., art. II., § 2.

com

power as mander-inpense with

chief to dis

law as a system.

See supra, §§ 57, 58, 487 et seq.;

2 Milligan v. Hovey, 3 Biss. 13; Milligan, ex parte, 4 Wall. 2.

supra, §§ 454 et seq.

• Supra, § 212.

5 Pomeroy, Const. Law, § 714.

• Infra, §§ 584, 589, 593.

Cabinet composed of heads of depart

ments.

504. The term "cabinet" is as unknown in our own formal legislation as it is in that of England. In England the cabinet consists of such high public officers, being privy councillors, as the prime minister may designate for the purpose; the prime minister being virtually the nominee of the house of commons. Our own constitution was framed before the British idea of a "cabinet" took the definite shape which it now assumes; and it is therefore not strange that while it is provided that the president" may require the opinion, in writing, of the prin cipal officer in each of the executive departments, upon any subject relating to the duties of their respective offices," this should be the only reference to an institution which has exercised often a controlling influence on the political destiny of the land. Fortunately the framers of the constitution did not undertake to determine how many "departments" there should be; and at first the heads of these departments were the secretary of state, the secretary of the treasury, the secretary of war, and the attorney-general. It was not till many years elapsed that the post-office and the navy were added; nor until after another long delay that we had a department of the interior. But although not specifically established in the constitution, the "cabinet," immediately after the formation of the new government, came into active existence as a political necessity. So far from the president's official appeals to the heads of departments being limited to requiring the "opinions in writing" "upon any subject relating to the duties of their respective offices," it was the practice of President Washington, on all matters of difficulty, to call together in council the heads of departments, and to submit to their consideration all important questions requiring executive action. When we remember Washington's comparative inexperience with the details of politics, and the peculiar political eminence of Jefferson, secretary of state, and of Hamilton, secretary of the treasury, it is not to be wondered that Washington, desiring at the outset all the aid he could obtain in coming to politi

1 See supra, § 18; Dean's British 2 See supra, § 19. Constitution, 88.

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