Horace Gray

“ And in a later case he said: 'But an Indian cannot make himself a citizen of the United States without the consent and co-operation of the government. The fact that he has abandoned his nomadic life or tribal relations, and adopted the habits and manners of civilized people, may be a good reason why he should be made a citizen of the United States, but does not of itself make him one. To be a citizen of the United States is a political privilege which no one, not born to, can assume without its consent in some form. ”

“ Armament for war is of a purely offensive nature. It is established when there is no other object in the armament than that of attack, or, at least, when everything shows that such is the principal object of the enterprise; then a vessel is deemed enemy or pirate, if she has no commission or papers sufficient to remove all suspicion. But defense is a natural right, and means of defense are lawful in voyages at sea, as in all other dangerous occupations of life. A ship which had but a small crew, and a considerable cargo, was evidently intended for commerce, and not for war. ”

“ It is certainly speaking within bounds to say that the effect of the provision in question, as a protection to the witness, is purely conjectural. No court can foresee all the results and consequences that may follow from enforcing this law in any given case. It is quite certain that the witness is compelled to testify against himself. Can any court be certain that a sure and sufficient substitute for the constitutional immunity has been supplied by this act, and, if there be room for reasonable doubt, is not the conclusion an obvious and necessary one? ”

“ The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission; but does not extend to those means which are employed by congress to carry into execution powers conferred on that body by the people of the United States. The attempt to use the taxing power of a state on the means employed by the government of the Union, in pursuance of the constitution, is itself an abuse, because it is the usurpation of a power which the people of a single state cannot give. ”

“ By no device can a body corporate avoid liability for fraud, for willful wrong, or for the gross negligence which, if it does not intend to occasion injury, is reckless of consequences, and transcends the bounds of right with full knowledge that mischief may ensue. Nor, as I am inclined to think, will any stipulation against liability be valid which has the pecuniary interest of the corporation as its sole object, and takes a safeguard from the public without giving anything in return. ”

“ But a power is reserved to the judge to make such rules and orders 'as that justice may be done'; and, as the possession of judicial power imposes an obligation to exercise it, we flatter ourselves that, in practice, the evils so eloquently dilated on by the counsel do not exist. And if the defendant does not avail himself of the right given him, of having an issue made up, and the trial by jury, which is tendered to him by the act, it is presumable that he cannot dispute the justice of the claim. ”

“ Thus, no court in the universe which professed to be governed by principle would, we presume, undertake to say that the courts of Great Britain or of France or of any other nation had misunderstood their own statutes, and therefore erect itself into a tribunal which should correct such misunderstanding. We receive the construction given by the courts of the nation as the true sense of the law, and feel ourselves no more at liberty to depart from that construction than to depart from the words of the statute.' Elmendorf v. ”

“ The levy of taxes is not a judicial function. Its exercise, by the constitutions of all the states, and by the theory of our English origin, is exclusively legislative. A court of equity is therefore hampered in the exercise of its jurisdiction by the necessity of enjoining the tax complained of, in whole or in part, without any power of doing complete justice by making, or causing to be made, a new assessment, on any principle it may decide to be the right one. ”

“ It does not authorize congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment.' 'Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty, and property, defining them, and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. ”

“ A partner, indeed, virtually embraces the character both of a principal and of an agent. So far as he acts for himself and his own interest in the common concerns of the partnership, he may properly be deemed a principal; and so far as he acts for his partners, he may as properly be deemed an agent. The principal distinction between him and a mere agent is that he has a community of interest with the other partners in the whole property and business and responsibilities of the partnership; whereas an agent, as such, has no interest in either. ”

“ I find that that legal estate is in his hands, and therefore any money that is produced by the sale or mortgage of that legal estate is subject to and chargeable with the payment of debts and legacies; and that therefore the money coming into his hands must be money which ought to be applied to the payment of debts and legacies. But then I find that he himself is an executor of the testator; that he himself is the person who ought to hold assets impressed with the liability to satisfy debts and legacies. ”

“ If, therefore, by the laws of the country of their birth, children of American citizens born in that country are subjects of its government, I do not think that it is competent to the United States, by any legislation, to interfere with that relation or, by undertaking to extend to them the rights of citizens of this country, to interfere with the allegiance which they may owe to the country of their birth while they continue within its territory, or to change the relation to other foreign nations which, by reason of their place of birth, may at any time exist. ”

“ The rules and principles of the criminal law are, for the most part, elementary and simple, and easily understood by jurors taken from the body of the people. As every citizen or subject is conclusively presumed to know the law, and cannot set up his ignorance of it to excuse him from criminal responsibility for offending against it, a jury of his peers must be presumed to have equal knowledge, and, especially after being aided by the explanation an dexposition of the law by counsel and court, to be capable of applying it to the facts as proved by the evidence before them. ”

“ Whenever by any action of a state, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment of the Constitution of the United States. ”

“ The constitution protecting every one from being prosecuted in a court of the United States without the intervention of a grand jury, for any crime which is subject by law to an infamous punishment, no declaration of congress is needed to secure, or competent to defeat, the constitutional safeguard. What punishment shall be considered as infamous may be affected by the changes of public opinion from one age to another, and for more than a century imprisonment at hard labor in the state prison or penitentiary has been considered an infamous punishment in England and America. ”

“ We had supposed it to be well settled, on authority and on principle, that no private suit could be maintained against a municipal corporation for an injury to person or property caused by negligence of members of its fire department while engaged in the performance of their official duties.
How far a municipal corporation may be held liable to a private action for the neglect of itself, or of its officers, in the performance of duties imposed upon it or upon them by law, is a subject upon which, in some of its aspects, there has been much difference of opinion in the courts of this country. ”

“ The right to vote for members of the Congress of the United States is not derived merely from the Constitution and laws of the state in which they are chosen, but has its foundation in the Constitution of the United States. ”

“ An instrument remains inviolate if it is not infringed; and, by a violation of the trial by jury, I understand taking it away, prohibiting it, or subjecting it to unreasonable and burdensome regulations, which, if they do not amount to a literal prohibition, are at least virtually of that character. It never could be the intention of the constitution to tie up the hands of the legislature, so that no change of jurisdiction could be made, and no regulation even of the right of trial by jury could be had. ”

“ No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call 'the comity of nations.' Although the phrase has been often criticised, no satisfactory substitute has been suggested. ”

“ The power of naturalization, vested in Congress by the Constitution, is a power to confer citizenship, not a power to take it away. "A naturalized citizen," said Chief Justice Marshall,
becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the National Legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it so far as respects the individual. ”

“ States, in which an absolute prohibition of slavery prevails, maintain that if a slave, with the consent of his master, touch their soil, he thereby becomes free. The prohibition in the act, commonly called the Missouri Compromise, is absolute." "Now, are we prepared to say that we shall suffer these laws to be enforced in our courts? On almost three sides the State of Missouri is surrounded by free soil. If one of our slaves touch that soil with his master's assent, he becomes entitled to his freedom. ”

“ It has been said that, if not their legal duty, it is their moral duty, to follow the instructions of the court in matter of law. But moral duties, as distinguished from legal duties, are governed, not by human, but by divine, laws; and the oath which the jurors in a capital case severally take to the Almighty Judge is to well and truly try and true deliverance make between the government and the prisoner at the bar, according to their evidence, not according to the instructions of the court, and to decide whether, in their own judgment and conscience, the accused is guilty or not guilty. ”

“ It appears to the court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself. It is certainly not only a possible, but a probable, case, that a witness, by disclosing a single fact, may complete the testimony against himself, and to every effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. ”

“ A body of men, so free from judicial control, was not a common-law jury; nor was a trial by them a trial by jury, within the meaning of the seventh amendment to the constitution. It was no more a jury, in the constitutional sense, than it would have been if it had consisted, as has been more usual in statutes authorizing trials by a jury before a justice of the peace, of less than 12 men. ”

“ The true criterion of a legal power is its capacity to produce a definitive effect, liable neither to censure nor review. And the verdict of not guilty, in a criminal case, is, in every respect, absolutely final. ”

“ It has been solemnly decided that the law of England abhors, and will not endure the existence of slavery within the nation; and consequently, as soon as a slave lands in England, he becomes ipso facto a freeman, and discharged from the state of servitude. Independent of the provisions of the Constitution of the United States, for the protection of masters in regard to domestic fugitive slaves, there is no doubt that the same principle pervades the common law of the non-slaveholding states in America ”

“ As already said, the very fact that the founders of our institutions, by making the immunity an express provision of the constitution, disclosed an intention to protect it from legislative attack, creates a presumption against any act professing to dispense with the constitutional privilege. It may not be said that by no form of enactment can congress supply an adequate substitute, but doubtfulness of its entire sufficiency, uncertainty of its meaning and effect, will be fatal defects. ”

“ The slave, then, being absolutely free while in the free State, if his return changes his condition and remands him to slavery again, it must be either by reason of his own implied consent, or of the effect of the laws of the State into which he returns. But neither the old English law of villenage, nor the American law of slavery, will allow a man to become a slave by his own consent merely. ”

“ But the court can never order the jury to convict, for no one can be found guilty but by the judgment of his peers.
Decisions of courts, and especially of courts of last resort, upon issues of law, such as are presented by a demurrer or by a special verdict, become precedents to govern judicial decisions in like cases in the future. But the verdict of a jury, upon the general issue of guilty or not guilty, settles nothing but the guilt or innocence of the accused in the particular case ”

“ Every man, of any feeling or conscience, will answer, 'No.' It is not only his right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.' 'The English law obliges no man to decide a cause upon oath against his own judgment.' 2 John Adams' Works, 253-255. ”

“ Since then not only individuals but States have been possessed with a dark and fell spirit in relation to slavery, whose gratification is sought in the pursuit of measures whose inevitable consequence must be the overthrow and destruction of our government. Under such circumstances it does not behoove the State of Missouri to show the least countenance to any measure which might gratify this spirit. She is willing to assume her full responsibility for the existence of slavery within her limits, nor does she seek to share or divide it with others. ”

“ In a case in which the jury, as appeared by their inquiries of the court, were in doubt whether the homicide committed by the defendants was murder or manslaughter, to instruct them that they could not acquit the defendants of murder and convict them of manslaughter only, but must find them guilty of murder or of no crime at all, does not appear to us to differ, in principle, from instructing them, in a case in which there was no question of manslaughter, that there was no evidence upon which they could acquit the defendant, or do anything but convict him of murder. ”

“ Thus no fugitive slave is to be discharged from service by reason of "any law or regulation "in the State to which he escapes. Another familiar instance is the power given to congress to "regulate commerce," of which Chief Justice Marshall said: "It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution." ”

“ To infer, because the court must decide questions of law upon which the admissibility of evidence depends, that the jury have no right to determine the matter of law involved in the general issue, would be as unwarrantable as to infer, because the court must decide questions of fact upon which the admissibility of evidence depends, that the jury have no right to decide the matter of fact involved in that issue. ”

“ The evident reason and good sense of this was that every man was held to be acquainted with the criminal law of the land. Ignorance was no plea for the commission of a crime, and no man was therefore supposed to be ignorant of judging upon the evidence adduced of the guilt or innocence of a defendant. It was the admitted maxim of law, 'Ad quaestionem juris respondent judices, ad quaestionem facti juratores;' but, when the law and the fact were blended, it was the undoubted right of the jury to decide. ”

“ In Rex v. Burdett, cited in the earlier part of this opinion, Mr. Justice Best said: 'If there was any evidence, it was my duty to leave it to the jury, who alone could judge of its weight. The rule that governs a judge as to evidence applies equally to the case offered on the part of the defendant, and that in support of the prosecution. It will hardly be contended that, if there was evidence offered on the part of the defendant, a judge would have a right to take on himself to decide on the effect of the evidence, and to withdraw it from the jury. ”