Section 5 of a collection of Supreme Court opinions by the United States Supreme Court. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org, recording by Mike Overby, Midland, Washington. Wheaton v. Peters, 33 U.S. 591, Decided March 19, 1834 Please note, this is a reading of the opinion of the court only. This reading does not include the syllabus or any concurring or dissenting opinions. For ease of listening, this reading omits legal citations found within the text of the court's opinion. Mr. Justice McLean delivered the opinion of the court. After stating the case, he proceeded. Some of the questions which arise in this case are as novel in this country as they are interesting. But one case involving similar principles, except a decision by a state court, has occurred. And that was decided by the Circuit Court of the United States for the District of Pennsylvania, from whose decree no appeal is taken. The right of the complainants must be first examined. If this right shall be sustained as set forth in the bill and the defendants shall be proved to have violated it, the court will be bound to give the appropriate redress. The complainants assert their right on two grounds. First, under the common law. Secondly, under the acts of Congress. And they insist, in the first place, that an author was entitled, at common law, to perpetual property in the copy of his works, and in the profit of their publication, and to recover damages for its injury, by an action on the case, and to the protection of a court of equity. In support of this proposition, the counsel for the complainants has indulged in a wide range of argument, and have shown great industry and ability. The limited time allowed for the preparation of this opinion will not admit of an equally extended consideration of the subject by the court. Perhaps no topic in England has excited more discussion among literary and talented men than that of the literary property of authors. So engrossing was the subject for a long time as to leave few neutrals, among those who were distinguished for their learning and ability. At length, the question, whether a copy of a book or literary composition belongs to an author at common law, was brought before the court of King's Bench, in the great case of Miller v. Taylor, reported in Forber 2303. This was a case of great expectation, and the four judges, in giving their opinions, seriatim, exhausted the argument on both sides. Two of the judges, and Lord Mansfield, held that, by the common law, an author had a literary property in his works, and they sustained their opinion with great ability. Mr. Justice Yeats, in an opinion of great length, and with an ability, if equaled, certainly not to past, maintained the opposite ground. Previous to this case, injunctions had issued out of chancery to prevent the publication of certain works, at the instance of those who claimed a property in the copyright. But no decision had been given, and a case had been commenced at law between Thompson and Collins on the same ground, and was argued with great ability more than once, and the court of King's Bench were about to take the opinion of all the judges when they discovered that the suit had been brought by collusion to try the question, and it was dismissed. The question was brought before the House of Lords, in the case of Donaldson v. Beckett and others, reported in Forber 2408. Lord Mansfield, being a peer, through feelings of delicacy, declined giving any opinion. The eleven judges gave their opinions on the following points. First, whether at common law, an author of any book, or literary composition, had the sole right of first printing, and publishing the same for sale, and might bring an action against any person who printed, published, and sold at the same, without his consent. On this question, there were eight judges in the affirmative, and three in the negative. Second, if the author had such right originally, did the law take it away upon his printing and publishing such book or literary composition, and might any person afterward reprint and sell for his own benefit such book or literary composition against the will of the author? The question was answered in the affirmative by four judges, and in the negative by seven. Third, if such action would have lain at common law, is it taken away by the statute of eight, Ann? And is an author, by the said statute, precluded from every remedy, except on the foundation of the said statute, and on the terms of the conditions prescribed thereby? Six of the judges, to five, decided that the remedy must be under the statute. Fourth, whether the author of any literary composition, and his assigns, had the sole right of printing and publishing the same in perpetuity by the common law? Which question was decided in favor of the author by seven judges to four? Fifth, whether this right is in any way impeached, restrained, or taken away by the statute, eight, Ann? Six to five judges decided that the right is taken away by the statute, and the Lord Chancellor, seconding Lord Camden's motion to reverse, the decree was reversed. It would appear from the points decided that a majority of the judges were in favor of the common law right of authors, but that the same had been taken away by the statute. The title and preamble of the statute of eight Ann is as follows, quote, in act for the encouragement of learning by vesting the copies of printed books in the authors or purchasers of such copies during the times therein mentioned, end quote. Whereas printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published, books and other writings without the consent of the authors, or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families, etc. In seven term rep, six to seven, Lord Kenyon says, quote, All arguments in the support of the rights of learned men in their works must ever be heard with great favor by men of liberal minds, to whom they are addressed. It was probably on that account that when the great question of literary property was discussed, some judges of enlightened understanding went the length of maintaining that the right of publication existed exclusively in the authors and those who claimed under them for all time. But the other opinion finally prevailed, which established that the right was confined to the times limited by the act of parliament, and that, I have no doubt, was the right decision, end quote. And in the case of the University of Cambridge v. Pryor, 16 East 319, Lord Ellenboro remarked, quote, It has been said that the Statute of Ada Ann has three objects, but I cannot subdivide the two first. I think it has only two. The Council for the Plaintiffs contented that there was no right at common law, and perhaps there might not be, but of that, we have not particularly anything to do, end quote. From the above authorities and others which might be referred to if time permitted, the law appears to be well settled in England that, since the Statute of Ada Ann, the literary property of an author in his works can only be asserted under the statute, and that, notwithstanding the opinion of a majority of judges in the great case of Miller v. Taylor, was in favor of the common law right before the statute, it is still considered, in England, as a question by no means free from doubt, that an author at common law has a property in his manuscript and may obtain redress against anyone who deprives him of it, or by improperly obtaining a copy endeavors to realize a profit by its publication cannot be doubted, but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world. The argument that a literary man is as much entitled to the product of his labor as any other member of society cannot be controverted, and the answer is that he realizes this product by the transfer of his manuscripts, or in the sale of his works, when first published. A book is valuable on the account of the matter it contains, the ideas it communicates, the instruction or entertainment it affords. Does the author hold a perpetual property in these? Is there an implied contract by every purchaser of his book that he may realize whatever instruction or entertainment which the reading of it shall give, but shall not write out or print its contents? In what respect does the right of an author differ from that of an individual who has invented a most useful and valuable machine? In the production of this, his mind has been as intensely engaged, as long and perhaps as usefully to the public, as any distinguished author in the composition of his book. The result of their labors may be equally beneficial to society, and in their respective spheres they may be alike distinguished for mental vigor. Does the common law give a perpetual right to the author and withhold it from the inventor? And yet, it has never been pretended that the latter could hold, by the common law, any property in his invention after he shall have sold it publicly. It would seem, therefore, that the existence of a principle may well be doubted which operates so unequally. This is not a characteristic of the common law. It is said to be founded on principles of justice, and that all its rules must conform to sound reason. Does not the man who imitates the machine profit as much by the labor of another, as he who imitates or republishes a book? Can there be a difference between the types and press with which one is formed and the instruments used in the construction of the others? That every man is entitled to the fruits of his own labor must be admitted, but he can enjoy them only, except by statutory provision, under the rules of property, which regulate society and which define the rights of things in general. But, if the common law right of authors were shown to exist in England, does the same right exist, and to the same extent, in this country? It is clear there can be no common law of the United States. The federal government is composed of 24 sovereign and independent states, each of which may have its local usages, customs, and common law. There is no principle which pervades the Union and has the authority of law that is not embodied in the Constitution or laws of the Union. The common law could be made a part of our federal system, only by legislative adoption. When, therefore, a common law right is asserted, we must look to the state in which the controversy originated, and in the case under consideration, as the copyright was entered in the clerk's office of the District Court of Pennsylvania for the first volume of the book in controversy, and it was published in that state, we may inquire whether the common law, as to copyrights, if any existed, was adopted in Pennsylvania. It is insisted that our ancestors, when they migrated to this country, brought with them the English common law as a part of their heritage. That this was the case, to a limited extent, is admitted. No one will contend that the common law, as it existed in England, has ever been enforced in all of its provisions in any state in this Union. It was adopted so far only as its principles were suited to the conditions of the colonies, and from the circumstance we see what is common law in one state is not so considered in another. The judicial decisions, the usages and customs of the respective states must determine how far the common law has been introduced and sanctioned in each. In the argument it was insisted that no presumption could be drawn against the existence of the common law, as to copyrights, in Pennsylvania, from the fact of its never having been asserted until the commencement of this suit. It may be true, in general, that the failure to assert any particular right may afford no evidence of the non-existence of such right, but the present case may well form an exception to this rule. If the common law, in all its provisions, has not been introduced into Pennsylvania, to what extent has it been adopted? Must not this court have some evidence on this subject? If no right, such as is set up by the complainants, has heretofore been asserted, no custom or usage established, no judicial decision been given, can the conclusion be justified that, by common law of Pennsylvania, an author has a perpetual property in the copyright of his works? These considerations might well lead the court to doubt the existence of this law in Pennsylvania, but there are others of a more conclusive character. The question respecting the literary property of authors was not made a subject of judicial investigation in England until 1760, and no decision was given until the case of Miller v. Taylor was decided in 1769. Long before this time, the colony of Pennsylvania was settled. What part of the common law did Penn and his associates bring with them from England? The literary property of authors, as now asserted, was then unknown in that country. Laws had been passed regulating the publication of new works under license, and the king, as the head of the church in the state, claimed the exclusive right of publishing the Acts of Parliament, the Book of Common Prayer, and a few other books. No such right at the common law had been recognized in England when the colony of Pennsylvania was organized. Long afterwards, literary property became a subject of controversy, but the question was involved in great doubt and perplexity, and a little more than a century ago, it was decided by the highest judicial court in England that the right of authors could not be asserted at common law, but under the statute. The statute of 8 Ann was passed in 1710. Can it be contended that this common law right so involved in doubt as to divide the most learned jurists of England at a period in her history as much distinguished by learning and talents as any other was brought into the wilds of Pennsylvania by its first adventurers? Was it suited to their condition? But there is another view still more conclusive. In the eighth section of the first article of the Constitution of the United States, it is declared that Congress shall have power, quote, to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries, end quote. And in pursuance of the power thus delegated, Congress passed the Act of the 30th of May 1790. This is entitled, quote, an act for the encouragement of learning by securing the copies of maps, charts, and books to the authors and proprietors of such copies during the times therein mentioned, end quote. In the first section of this act, it is provided, quote, that from and after its passage the author and authors of any map, chart, book, or books already printed within these United States, being a citizen, etc., who hath or have not transferred to any other person the copyright of such map, chart, book, or books, etc., shall have the sole right and liberty of printing, reprinting, publishing, and vending such map, book, or books for 14 years, end quote. In behalf of the common law right, an argument has been drawn from the word secure, which is used in relation to this right, both in the Constitution and in the acts of Congress. This word, when used as a verb active, signifies to protect, insure, save, ascertain, etc. The counsel for the complainants insist that the term as used clearly indicates an intention not to originate a right, but to protect one already in existence. There is no mode by which the meaning affixed to any word or sentence, by a deliberative body, can be so well ascertained as by comparing it with the words and sentences with which it stands connected. By this rule, the word secure, as used in the Constitution, could not mean the protection of an acknowledged legal right. It refers to inventors as well as authors, and it has never been pretended by anyone, either in this country or in England, that an inventor has a perpetual right, at common law, to sell the thing invented. And if the word secure is used in the Constitution in reference to a future right, was it not so used in the act of Congress? But it is said that part of the first section of the act of Congress, which has been quoted, a copyright is not only recognized as existing, but that it may be assigned as the rights of the assignee are protected the same as those of the author. As before stated, an author has, by the common law, a property in his manuscript, and there can be no doubt that the rights of an assignee of such manuscript would be protected by a court of chancellery. This is presumed to be the copyright recognized in the act, and which was intended to be protected by its provisions. And this protection was given as well to books published under such circumstances as to the manuscript copies, that Congress, in passing the act of 1790, did not legislate in reference to existing rights appears clear from the provision that the author, etc., shall have the sole right and liberty of printing, etc. Now, if this exclusive right existed, at the common law, and Congress were about to adopt legislative provisions for its protection, would they have used this language? Could they have deemed it necessary to vest a right already vested? Such a presumption is refuted by the words above quoted, and their force is not lessened by any other part of the act. Congress then, by this act, instead of sanctioning an existing right, as contended for, created it. This seems to be the clear import of the law, connected with the circumstances under which it was enacted. From these considerations it would seem that if the right of the complainants can be sustained, it must be sustained under the acts of Congress. Such was, probably, the opinion of the council who framed the bill, as the right is asserted under the statutes, and no particular reference is made to it as existing at common law. The claim, then, of the complainants must be examined in reference to the statutes under which it is asserted. There are but two statutes which have a bearing on this subject. One of them has already been named, and the other was passed the 29th of April, 1802. The first section of the Act of 1790 provides that an author, or as a signee, quote, shall have the sole right and liberty of printing, reprinting, publishing, and vending such map, chart, book, or books for the term of 14 years from the recording of the title thereof in the clerk's office, as here and after directed, and that the author, et cetera, in books not published, et cetera, shall have the sole right and liberty of printing, reprinting, publishing, and vending such map, chart, book, or books for the like term of 14 years from the time of recording the title thereof in the clerk's office, as aforesaid. And at the expiration of the said term, the author, et cetera, shall have the same exclusive right continued to him, et cetera, for the further term of 14 years, provided he or they shall cause the title thereof to be a second time recorded, and published in the same manner as is here and after directed, and that within six months before the expiration of the first term of 14 years, end quote. The third section provides that, no person shall be entitled to the benefit of this act, et cetera, unless he shall first deposit, et cetera, a printed copy of the title in the clerk's office, et cetera, end quote. And such author or proprietor shall within two months from the date thereof cause a copy of said record to be published in one or more of the newspapers printed in the United States for the space of four weeks, end quote. And the fourth section acts that, quote, the author, et cetera, shall within six months of the publishing thereof deliver or cause to be delivered to the Secretary of State a copy of the same to be preserved in his office, end quote. The first section of the Act of 1802 provides that, quote, every person who shall claim to be the author, et cetera, before he shall be entitled to the benefit of the act entitled and act for the encouragement of learning by securing the copies of maps, charts, books to the authors and proprietors of such copies during the time therein mentioned, he shall, in addition to the requisites enjoined in the third and fourth sections of said act, if a book or books give information by causing the copy of the record, which by said act he is required to publish, to be inserted in the page of the book next to the title, end quote. These are substantially the provisions by which the complainant's right must be tested. They claim under a renewal of the term, but this necessarily involves the validity of the right under the first, as well as the second term. In the language of the statute, quote, the same exclusive right, end quote, is continued the second term that existed the first. It will be observed that a right accrues under the Act of 1790 from the time a copy of the title of the book is deposited in the clerk's office. But the Act of 1802 adds another requisite to the accruing of the right, and that is that the record made by the clerk shall be published in the page next to the title page of the book. And it is argued, with great earnestness and ability, that these are the only requisites to the perfection of the complainant's title, that the requisition of the third section to give public notice to the newspapers, and that contained in the fourth to deposit a copy in the Department of State, are acts subsequent to the accruing of the right, and whether they are performed or not cannot materially act the title. The case is compared to a grant with conditions subsequent which can never operate as a forfeiture of the title. It is said also that the object of the publication in newspapers and the deposit of the copy in the Department of State was merely to give notice to the public, and that such acts, not being essential to the title, after so great a lapse of time may well be presumed. That, if neither act had been done, the right of the party having accrued, before either was required to be done, must remain unshaken. This right, as has been shown, does not exist at common law. It originated, if at all, under the acts of Congress. No one can deny that when the legislature are about to vest an exclusive right in an author or an inventor, they have the power to prescribe the conditions on which such right shall be enjoyed, and that no one can avail himself of such right who does not substantially comply with the requisitions of the law. This principle is familiar as it regards patent rights, and it is the same in relation to the copyright of a book. If any difference shall be made, as it respects a strict conformity to the law, it would seem to be more reasonable to make the requirement of the author rather than the inventor. Papers of the latter are examined in this Department of State and require the sanction of the Attorney General, but the author takes every step on his own responsibility, unchecked by the scrutiny or sanction of any public functionary. The acts required to be done by an author to secure his right are in the order in which they must naturally transpire. First, the title of the book is to be deposited with the clerk, and the record he makes must be inserted in the first or second page. Then the public notice in the newspaper is to be given, and within six months after the publication of the book a copy must be deposited in the Department of State. A right undoubtedly accrues on the record being made with the clerk and the printing of it as required. But what is the nature of that right? Is it perfect? If so, the other two requisites are wholly useless. How can the author be compelled, either to give notice in the newspaper or deposit a copy in the State Department? The statute affixes no penalty for a failure to perform either of these acts, and it provides no means by which it may be enforced. But we are told they are unimportant acts. If they are indeed wholly unimportant, Congress acted unwisely in requiring them to be done. But whether they are important or not is not for the court to determine, but the legislature, and in what light they were considered by the legislature, we can learn only by their official acts. Judging then of these acts by this rule, we are not at liberty to say they are unimportant and may be dispensed with. They are acts which the law requires to be done, and may this court dispense with their performance? But the inquiry is made. Shall the non-performance of these subsequent conditions operate as a forfeiture of the right? The answer is that this is not a technical grant of precedent and subsequent conditions. All the conditions are important. The law requires them to be performed, and, consequently, their performance is essential to a perfect title. On the performance of a part of them, the right vests, and this was essential to its protection under the statute, but other acts are to be done unless Congress have legislated in vain to render the right perfect. The notice could not be published until after the entry with the clerk, nor could the book be deposited with the Secretary of State until it was published, but these are acts not less important than those which are required to be done previously. They form a part of the title, and until they are performed, the title is not perfect. The deposit of the book in the Department of State may be important to identify it at any future period should the copyright be contested or an unfounded claim of authorship asserted. But, if doubts could be entertained, whether the notice and deposit of the book in the State Department were essential to the title under the Act of 1790, on which act my opinion is principally founded, though I consider it in connection with the other act, there is in the opinion of three of the judges no ground for doubt under the Act of 1802. The latter act declares that every author, etc., before he shall be entitled to the benefit of the former act, shall in addition to the requisitions in the third and fourth sections of said act, if a book publish, etc. Is not this a clear exposition of the first act? Can an author claim the benefit of the Act of 1790 without performing, the requisites enjoined in the third and fourth sections of it? If there be any meaning in language, the Act of 1802, the three judges think, requires these requisites to be performed in addition to one required by that act, before the author, etc., shall be entitled to the benefit of the first act. The rule by which conditions precedents and subsequent are construed in a grant is no application to the case under consideration, as every requisite in both acts is essential to the title. A renewal of the term of 14 years can only be obtained by having the title page recorded with the clerk and the record published on the page next to that of the title and public notice given within six months before the expiration of the first term. In opposition to the construction of the above statutes as now given, referred to several decisions in England on the construction of the Statute of 8 Anne and other statutes. In the case of Beckford v. Hood, seven-term RAP 620, the Court of King's Bench decided that an author whose work is pirated before the expiration of 28 years from the first publication of it, may maintain an action on the case for damages against the offending party, although the work was not entered at Stationers Hall end quote. But this entry was necessary only to subject the offender to certain penalties provided in the Statute of 8 Anne. The suit brought was not for the penalties and consequently, the entry of the work at Stationers Hall was not made a question in the case. In the case of Blackwell v. Harper, to Act 95, Lord Hardwick is reported to have said upon the Act of 8 Anne, quote, the clause of registering with the Stationers is relative to the penalty and the property cannot vest without such entry, end quote. For the words are, quote, that nothing in this Act shall be construed to subject any bookseller, etc. to the forfeitures, etc., by reason of printing any book, etc., unless the title to the copy of such book, hereafter published, shall before such publication be entered in the register book of the Company of Stationers, end quote. The very language quoted by his Lordship shows that the entry was not necessary to an investiture of the title, but to the recovery of the penalties provided in the Act against those who pirated the work. His Lordship decided, in the same case, that, quote, under an Act of Parliament providing that a certain investor shall have the soul right and liberty of printing and reprinting certain prints for the term of 14 years, and to commence from the day of first publishing thereof, which shall be truly engraved with the name of the proprietor on each plate and printed on every such print or prints, end quote. The property in the prints vests absolutely in the engraver, though the day of publication is not mentioned. The authority of this case is seriously questioned in the case of Newton v. Coe, for Bingham, 241, and it would seem, from the decision of Lord Hardwick, that he had doubts on the correctness of the decision as he decreed an injunction without bygone profits. And Lord Alvinley, in the case of Harris and V. Hogg, cited in for Bing 242, said, quote, that he was glad he was relieved from deciding on the same Act as he was inclined to differ from Lord Hardwick, end quote. By a reference to the English authorities in the construction of statutes, somewhat analogous to those under which the complainants set up their right, it will be found that the decisions often conflict with each other. But it is believed that no settled construction has been given to any British statute in all respects similar to those under consideration, which is at variance with the one now given. If, however, such an instance could be found, it would not lessen the confidence we feel in the correctness of the view which we have taken. The act of Congress under which Mr. Wheaton, one of the complainants, in his capacity of reporter, was required to deliver 80 copies of each volume of his reports to the Department of State, and which were probably faithfully delivered, does not exonerate him of the deposit of a copy under the act of 1790. The 80 volumes were delivered for a different purpose, and cannot excuse the deposit of the one volume as specifically required. The construction of the acts of Congress being settled, in further investigation of the case, it would become necessary to look into the evidence and ascertain whether the complainants have not shown a substantial compliance with every legal requisite. But on reading the evidence, we entertained doubts which induce us to remand the cause to the circuit court where the facts can be ascertained by a jury, and the cause is accordingly remanded to the circuit court, with directions to that court to order an issue of facts to be examined and tried by a jury at the bar of said court upon this point, these whether the said Wheaton, as author, or any other person as proprietor, had complied with the requisites prescribed by the 3rd and 4th sections of the said act of Congress, past the 31st day of May 1790 in regard to the volumes of Wheaton's reports in the said bill mentioned, or in regard to one or more of them in the following particulars, these whether the said Wheaton or proprietor did within two months from the date of the recording thereof in the office of the district court, cause a copy of the said record to be published in one or more of the newspapers printed in the resident states for the space of four weeks, and whether the said Wheaton or proprietor after the publishing thereof did deliver or cause to be delivered to the secretary of state of the United States, a copy of the same to be preserved in his office according to the provisions of the said 3rd and 4th sections of the said act, and if the said requisites have not been complied with in regard to all the said volumes than the jury to find it particular in regard to what volumes they or either of them have been so complied with, it may be proper to remark that the court are unanimously of opinion that no reporter has or can have any copyright in the written opinions delivered by this court and that the judges thereof cannot confer on any reporter any such right. End of section 5 Section 6 of a collection of Supreme Court opinions by the United States Supreme Court This is a LibriVox recording All LibriVox recordings are in the public domain For more information or to volunteer please visit LibriVox.org Recording by Michael Fasio United States vs. the Amistad 40 US 518 Decided March 9, 1841 Please note this is a reading of the opinion of the court only. This reading does not include the syllabus or any concurring or dissenting opinions. For ease of listening this reading omits legal citations found within the text of the court's opinion. Mr. Justice Story delivered the opinion of the court This is the case of an appeal from the decree of the Circuit Court of the District of Connecticut sitting in Admiralty The leading facts as they appear upon the transcript of the proceedings are as follows On the 27th of June 1839 the Schooner-Lamostat being the property of Spanish subjects cleared out from the port of Havana in the island of Cuba for Porto Princip in the same island On board of the Schooner were the captain, Ransom Ferrer and José Ruiz and Pedro Montez all Spanish subjects The former had with him a Negro boy named Antonio to be his slave José Ruiz had with him 49 Negroes claimed by him as his slaves and stated to be his property in a certain pass or document signed by the Governor General of Cuba Pedro Montez had with him four other Negroes also claimed by him as his slaves and stated to be his property in a similar pass or document also signed by the Governor General of Cuba On the voyage and before the arrival of the vessel at her port of destination the Negroes rose killed the captain and took possession of her On the 26th of August the vessel was discovered by Lieutenant Gedney of the United States Brig Washington at anchor on the high seas at the distance of half a mile from the shore of Long Island A part of the Negroes were then on shore at Culloden Point Long Island who were seized by Lieutenant Gedney and brought on board The vessel with the Negroes and other persons on board was brought by Lieutenant Gedney into the District of Connecticut and they're libeled for salvage in the District Court of the United States A libel for salvage was also filed by Henry Green and Palatia Fordham of Sag Harbor Long Island On the 18th of September Ruiz and Montez filed claims and libels in which they asserted their ownership of the Negroes and of certain parts of the cargo and prayed that the same might be quote delivered to them or to the representatives of her Catholic Majesty as might be most proper end of quote On the 19th of September the Attorney of the United States for the District of Connecticut filed an information or libel setting forth that the Spanish minister had officially presented to the proper department of the government of the United States a claim for the restoration of the vessel cargo and slaves as the property of Spanish subjects which had arrived within the jurisdictional limits of the United States and were taken possession of by the said public armed brig of the United States under such circumstances as made at the duty of the United States to cause the same to be restored to the true proprietors pursuant to the treaty between the United States and Spain and praying the court that's being made legally to appear that the claim of the Spanish minister was well founded to make such order for the disposal of the vessel cargo and slaves as would best enable the United States to comply with their treaty stipulations but if it should appear that the Negroes were persons transported from Africa in violation of the laws of the United States and brought within the United States contrary to the same laws he then prayed the court to make such order for their removal to the coast of Africa pursuant to the laws of the United States as it should deem fit on the 19th of November the attorney of the United States filed a second information or libel similar to the first with the exception of the second prayer above set forth in his former one on the same day Antonio G. Vega the vice consul of Spain for the state of Connecticut alleging that Antonio was a slave the property of the representative of Ramon Ferrer and praying the court to cause him to be delivered to the said vice consul that he might be returned by him to his lawful owner in the island of Cuba on the 7th of January 1840 the Negroes Sink and others with the exception of Antonio by their counsel filed an answer denying that they were slaves or the property of Ruiz and Montez or that the court could under the constitutional laws of the United States or under any treaty exercise any jurisdiction over their persons by reason of the premises and praying that they might be dismissed they specially set forth and insist in this answer that they were native born Africans born free and still of right ought to be free and not slaves that they were on or about the 15th of April 1839 unlawfully kidnapped and forcibly and wrongfully carried on board a certain vessel on the coast of Africa which was unlawfully engaged in the slave trade and were unlawfully transported in the same vessel to the island of Cuba for the purpose of being their unlawfully sold as slaves that Ruiz and Montez well knowing the premises made a pretended purchase of them that afterwards on or about the 28th of June 1839 Ruiz and Montez confederating with Ferrer captain of the Amistad caused them without law or right to be placed on board of the Amistad to be transported to some place unknown to them and there to be enslaved for life that on the voyage they rose on the master and took possession of the vessel intending to return therewith to their native country or to seek an asylum in some free state and the vessel arrived next 1839 off Montauk Point near Long Island a part of them were sent on shore and were seized by Lieutenant Getty and carried on board and all of them were afterwards brought by him into the district of Connecticut on the 7th of January 1840 José Antonio Telencas and Messers Aspe and Lacca all Spanish subjects residing in Cuba filed their claims as owners to certain portions of the goods found on board of the schooner La Amistad on the same day all the libelants and claimants by their counsel accept José Ruiz and Pedro Montez whose libels and claims as stated of record were pursued by the Spanish minister the same being merged in his claims appeared and the negroes also appeared by their counsel and the case was heard on the libels claims answers and testimony of witnesses on the 23rd day of January 1840 the district court made a decree by that decree the court rejected the claim of Green and Fordham for salvage but allowed salvage to Lieutenant Getty and others on the vessel and cargo of one third of the value thereof but not on the negroes Sink and others it allowed the claim of Telencas and Aspe and Lacca with the exception of the above mentioned salvage it dismissed the libels and claims of Ruiz and Montez with costs as being included under the claim of the Spanish minister it allowed the claim of the Spanish Vice Consul for Antonio on behalf of Ferrer's representatives it rejected the claims of Ruiz and Montez for the delivery of the negroes but admitted them for the cargo with the exception of the above mentioned salvage it rejected the claim made by the attorney of the United States on behalf of the Spanish minister for the restoration of the negroes under the treaty but a decree that they should be delivered to the president of the United States to be transported to Africa pursuant to the act of 3rd March, 1819 from this decree the district attorney on behalf of the United States appealed to the circuit court except so far as related to the restoration of the slave Antonio the claimants, Telencas and Aspe and Lacca also appealed from that part of the decree which awarded salvage on the property respectfully claimed by them no appeal was interposed by Ruiz or Montez or on behalf of the representatives of the owners of the Yamastad the circuit court by a mere pro forma decree affirmed the decree of the district court reserving the question of salvage upon the claims of Telencas and Aspe and Lacca and from that decree the present appeal has been brought to this court the cause has been very elaborately argued as well upon the merits as upon a motion on behalf of the appellies to dismiss the appeal on the part of the United States it has been contended that due and sufficient proof concerning the property has been made to authorize the restitution of the vessel cargo and negroes to the Spanish subjects on whose behalf they are claimed pursuant to the treaty with Spain of the 27th of October, 1795 two that the United States had a right to intervene in the matter in which they have done to obtain a decree for the restitution of the property upon the application of the Spanish minister these propositions have been strenuously denied on the other side other collateral and incidental points have been stated upon which it is not necessary at this moment to dwell before entering upon the discussion of the main points involved in this interesting and important controversy it may be necessary to say a few words as to the actual posture of the case as it now stands before us in the first place then the only parties now before the court on one side are the United States intervening for the sole purpose of procuring restitution of the property as Spanish property pursuant to the treaty upon the grounds stated by the other parties claiming the property in their respective libel the United States do not assert any property in themselves or any violation of their own rights or sovereignty or laws by the acts complained of they do not insist that these negroes have been imported into the United States in contravention of our own slave trade acts they do not seek to have these negroes delivered up for the purpose of being transported to Cuba as pirates or robbers or as fugitive criminals against the laws of Spain they do not assert that the seizure and bringing the vessel and cargo and negroes into port by Lieutenant Gedney for the purpose of adjudication is a tortuous act they simply confine themselves to the right of the Spanish claimants to the restitution of their property upon the facts asserted in their respective allegations in the next place the parties before the court on the other side as appellees are Lieutenant Gedney on his libel for salvage and the negroes, Sink and others asserting themselves in their answer not to be slaves but free native Africans kidnapped in their own country and illegally transported by force from that country and now entitled to maintain their freedom no question has been here made as to the proprietary interests in the vessel and cargo it is admitted that they belong to Spanish subjects and that they ought to be restored the only point on this head is whether the restitution ought to be upon the payment of salvage or not the main controversy is whether these negroes are the property of Ruiz and Montez and ought to be delivered up and to this accordingly we shall first direct our attention it has been argued on behalf of the United States that the court are bound to deliver them up according to the treaty of 1795 with Spain which has in this particular been continued in full force by the treaty of 1819 ratified in 1821 the sixth article of that treaty seems to have had principally in view cases where the property of the subjects of either state had been taken possession of within the territorial jurisdiction of the other during war the eighth article provides for cases where the shipping of the inhabitants of either state are forced through stress of weather pursuit of pirates or enemies or any other urgent necessity to seek shelter in the ports of the other there may well be some doubt entertained whether the present case in its actual circumstances falls within the purview of this article but it does not seem necessary for reasons hereafter stated absolutely to decide it the ninth article provides quote quote this is the article on which the main reliance is placed on behalf of the United States for the restitution solution of these Negroes. To bring the case within the article, it is essential to establish, first, that these Negroes, under all the circumstances, fall within the description of merchandise, in the sense of the treaty. Secondly, that there has been a rescue of them on the high seas out of the hands of the pirates and robbers, which, in the present case, can only be by showing that they themselves are pirates and robbers, and thirdly, that Ruiz and Montez, the asserted proprietors, are the true proprietors, and have established their title by competent proof. If these Negroes were, at the time, lawfully held as slaves under the laws of Spain, and recognized by those laws as property capable of being lawfully bought and sold, we see no reason why they may not justly be deemed, within the intent of the treaty, to be included under the denomination of merchandise, and as such, ought to be restored to the claimants. For, upon that point, the laws of Spain would seem to furnish the proper rule of interpretation. But, admitting this, it is clear in our opinion that neither of the other essential facts and requisites have been established in proof, and the odus, probandi, of both lies upon the claimants to give rise to the causes, federas. It is plain, beyond controversy, if we examine the evidence that these Negroes never were the lawful slaves of Ruiz or Montez, or of any other Spanish subjects. They are natives of Africa, and were kidnapped there, and were unlawfully transported to Cuba, in violation of the laws and treaties of Spain, and the most solemn edicts and declarations of that government. By those laws, and treaties, and edicts, the African slave trade is utterly abolished. The dealing in that trade is deemed a heinous crime, and the Negroes thereby introduced into the dominions of Spain are declared to be free. Ruiz and Montez are proved to have made the pretended purchase of these Negroes with a full knowledge of all the circumstances. And so, cogent and irresistible is the evidence in this respect, that the district attorney has admitted in open court, upon the record, that these Negroes were native Africans, and recently imported into Cuba, as alleged in their answers to the libals in the case. The supposed proprietary interest of Ruiz and Montez is completely displaced, if we are at liberty to look at the evidence of the admissions of the district attorney. If then, these Negroes are not slaves, but are kidnapped Africans, who by the laws of Spain itself, are entitled to their freedom, and were kidnapped, and illegally carried to Cuba, and illegally detained and restrained on board of the Amistad, there is no pretense to say that they are pirates or robbers. We may lament the dreadful acts by which they asserted their liberty, and took possession of the Amistad, and endeavored to regain their native country, but they cannot be deemed pirates or robbers in the sense that the law of nations, or the treaty with Spain, or the laws of Spain itself, at least so far as those laws have been brought to our knowledge, nor do the libals of Ruiz or Montez assert them to be such. This posture of the facts would seem of itself to put an end to the whole inquiry upon the merits. But it is argued, on behalf of the United States, that the ship, and cargo, and Negroes were duly documented as belonging to Spanish subjects, and this court have no right to look behind these documents, that full faith and credit is to be given to them, and that they are to be held conclusive evidence in this cause, even although it should be established by the most satisfactory proofs that they have been obtained by the grossest frauds and impositions upon the constituted authorities of Spain. To this argument we can, in no wise, assent. There is nothing in the treaty which justifies or sustains the argument. We do not hear metal with the point, whether there has been any connivance in this illegal traffic, on the part of any of the colonial authorities or subordinate officers of Cuba, because, in our view, such an examination is unnecessary and ought not to be pursued, unless it were indispensable to public justice, although it has been strongly pressed at the bar. What we proceed upon is this, that although public documents of the government accompanying property found on board of the private ships of a foreign nation certainly are to be deemed prima facie evidence of the facts which they purport to state, yet they are always open to be impugned for fraud, and whether that fraud be in the original obtaining of these documents, or in the subsequent fraudulent and illegal use of them, when once it is satisfactorily established, it overthrows all their sanctity and destroys them as proof. Fraud will vitiate any, even the most solemn transactions, and an assertion title to property, founded upon it, is utterly void. The very language of the ninth article of the Treaty of 1795 requires the proprietor to make due and sufficient proof of his property. And how can that proof be deemed either due or sufficient, which is but a connected and stained tissue of fraud? This is not a mere rule of municipal jurisprudence. Nothing is more clear in the law of nations as an established rule to regulate their rights and duties, and intercourse, than the doctrine that the ship's papers are but prima facie evidence, and that if they are shown to be fraudulent, they are not to be held proof of any valid title. This rule is familiarly applied, and indeed is of every day's occurrence in cases of prize, in the contests between belligerents and neutrals, as is apparent from numerous cases to be found in the reports of this court. And it is just as applicable to the transactions of civil intercourse between nations in times of peace. If a private ship, clothed with Spanish papers, should enter the ports of the United States, claiming the privileges and immunities and rights belonging to bonafide subjects of Spain under our treaties or laws, and she should in reality belong to the subjects of other nations, which was not entitled to any such privileges, immunities or rights, and the proprietors were seeking, by fraud, to cover their own illegal acts under the flag of Spain. There can be no doubt that it would be the duty of our courts to strip off the disguise, and to look at the case according to its naked realities. In the solemn treaties between nations, it can never be presumed that either state intends to provide the means of perpetrating or protecting frauds, but all the provisions are to be construed as intended to be applied to bonafide transactions. The 17th article of the Treaty with Spain, which provides for certain passports and certificates as evidence of property on board of the ships of both states, is, in its terms, applicable only to cases where either of the parties is engaged in a war. This article required a certain form of passport to be agreed upon by the parties, and annexed to the treaty. It never was annexed, and therefore in the case of the amiable Isabella, six Wheaton, one, it was held inoperative. It is also a most important consideration in the present case, which ought not to be lost sight of, that, supposing these African Negroes not to be slaves, but kidnapped and free Negroes, the treaty with Spain cannot be obligatory upon them, and the United States are bound to respect their rights as much as those of Spanish subjects. The conflict of rights between the parties under such circumstances becomes positive and inevitable, and must be decided upon the eternal principles of justice and international law. If the contests were about any goods on board of this ship, to which American citizens asserted a title, which was denied by the Spanish claimants, there could be no doubt of the right of such American citizens to litigate their claims before any competent American tribunal, notwithstanding the treaty with Spain.  The treaty with Spain never could have intended to take away the equal rights of all foreigners, who should contest their claims before any of our courts, to equal justice, or to deprive such foreigners of the protection given them by other treaties, or by the general law of nations. Upon the merits of the case then, there does not seem to us to be any ground for doubt that these Negroes ought to be deemed free, and that the Spanish treaty interposes no obstacle to the just assertion of their rights. There is another consideration growing out of this part of the case, which necessarily rises in judgment. It is observable that the United States, in their original claim, filed it in the alternative, to have the Negroes, if slaves and Spanish property, restored to the proprietors, or, if not slaves, but Negroes who had been transported from Africa in violation of the laws of the United States, and brought into the United States, contrary to the same laws, then the court to pass an order to enable the United States to remove such persons to the coast of Africa, to be delivered there to such agent as may be authorized to receive and provide for them. At a subsequent period, this last alternative claim was not insisted on, and another claim was interposed, omitting it, from which the conclusion naturally arises that it was abandoned. The decree of the district court, however, contained an order for the delivery of the Negroes to the United States to be transported to the coast of Africa under the Act of the 3rd of March, 1819, CH-224. The United States do not now insist upon any affirmance of this part of the decree, and in our judgment, upon the admitted facts, there is no ground to assert that the case comes within the purview of the Act of 1819, or of any other of our prohibitory slave trade acts. These Negroes were never taken from Africa, or brought to the United States in contravention of those acts. When the Anastad arrived, she was in possession of the Negroes, asserting their freedom, and in no sense could they possibly intend to import themselves here as slaves, or for sale as slaves. In this view of the matter, that part of the decree of the district court is unmaintainable, and must be reversed. The view which has been thus taken of this case upon the merits, under the first point, renders it wholly unnecessary for us to give any opinion upon the other point, as to the right of the United States to intervene in this case in the matter already stated. We dismiss this, therefore, as well as several minor points made at the argument. As to the claim of Lieutenant Gedney for the salvage service, it is understood that the United States do not now desire to interpose any obstacle to the allowance of it, if it is deemed reasonable by the court. It was a highly meritorious and useful service to the proprietors of the ship and cargo, and such as, by the general principles of maritime law, is always deemed a just foundation for salvage. The rate allowed by the court does not seem to us to have been beyond the exercise of a sound discretion, under the very peculiar and embarrassing circumstances of the case. Upon the whole, our opinion is that the decree of the circuit court, affirming that of the district court, ought to be affirmed, except so far as it directs the Negroes to be delivered to the President, to be transported to Africa, in pursuance of the act of the 3rd of March, 1819, and, as to this, it ought to be reversed, and that the said Negroes be declared to be free and be dismissed from the custody of the court and go without day. This cause came on to be heard on the transcript of the record of the circuit court of the United States, for the District of Connecticut, and was argued by counsel. In consideration whereof it is the opinion of this court, that there is air in that part of the decree of the circuit court, affirming the decree of the district court, which ordered the said Negroes to be delivered to the President of the United States, to be transported to Africa, in pursuance of the act of Congress, of the 3rd of March, 1819, and that, as to that part, it ought to be reversed, and in all other respects, that the said decree of the circuit court ought to be affirmed. It is therefore ordered, adjudged, and decreed by this court, that the decree of the said circuit court be, and the same is hereby affirmed, except as to the part aforesaid, and as to that part, that it be reversed, and that the cause be remanded in the circuit court, with directions to enter, in lieu of that part, a decree, that the said Negroes be, and are hereby declared to be free, and that they be dismissed from the custody of the court, and be discharged from the suit, and go thereof quit without day. Please note, this is a reading of the opinion of the court only. This reading does not include the syllabus or any concurring or dissenting opinions. For ease of listening, this reading omits legal citations found within the text of the court's opinion. The Chief Justice delivered the opinion of the court. A motion was made, some days since, in behalf of the State of Mississippi, for leave to file a bill in the name of the State, preying this court perpetually to enjoin and restrain Andrew Johnson, President of the United States, and EOC Ord, General Commanding in the District of Mississippi and Arkansas, from executing, or in any manner, carrying out certain acts of Congress therein named. The acts referred to are those of March 2nd and March 23rd, 1867, commonly known as the Reconstruction Acts. The Attorney General, objected to the leave, asked for, upon the ground, that no bill which makes a President a Defendant, and seeks an injunction against him to restrain the performance of his duties as President, should be allowed to be filed in this court. This point has been fully argued, and we will now dispose of it. We shall limit our inquiry to the question presented by the objection without expressing any opinion on the broader issues discussed in argument, whether, in any case, the President of the United States may be required by the process of this court to perform a purely ministerial act under a positive law, or may be held amenable in any case otherwise than by impeachment for crime. The single point which requires consideration is this. Can the President be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional? It is assumed by the Council for the State of Mississippi that the President, in the execution of the Reconstruction Acts, is required to perform a mere ministerial duty. In this assumption there is, we think, a confounding of the terms ministerial and executive, which are by no means equivalent in import. A ministerial duty, the performance of which may, in proper cases, be required of the head of a department by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty arising under conditions admitted or proved to exist and imposed by law. The case of Marbury v. Madison, Secretary of State, furnishes an illustration. A citizen had been nominated, confirmed, and appointed a Justice of the Peace for the District of Columbia, and his commission had been made out, signed, and sealed. Nothing remained to be done except delivery, and the duty of delivery was imposed by law on the Secretary of State. It was held that the performance of this duty might be enforced by mandamus issuing from a court having jurisdiction. So, in the case of Kendall, Postmaster General v. Stockton and Stokes, an act of Congress had directed the Postmaster General to credit Stockton and Stokes with such sums as the solicitor of the Treasury should find due to them, and that officer refused to credit them with certain sums so found due. It was held that the crediting of this money was a mere ministerial duty, the performance of which might be judicially enforced. In each of these cases nothing was left to discretion. There was no room for the exercise of judgment. The law required the performance of a single specific act, and that performance it was held might be required by mandamus. Very different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and among these laws the acts named in the bill. By the first of these acts he is required to assign generals to command in the several military districts and to detail sufficient military force to enable such officers to discharge their duties under the law. By the supplementary act other duties are imposed on the several commanding generals, and these duties must necessarily be performed under the supervision of the President as Commander-in-Chief. The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political. An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized in the language of Chief Justice Marshall as, quote, an absurd and excessive extravagance, end quote. It is true that in the instance before us the interposition of the court is not sought to enforce action by the executive under constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of executive discretion. It was admitted in the argument that the application now made to us is without a precedent, and this is of much weight against it. Had it been supposed at the bar that this court would in any case interpose by injunction to prevent the execution of an unconstitutional act of Congress, it can hardly be doubted that applications with that object would have been here before addressed to it. Occasions have not been wanting. The constitutionality of the act for the annexation of Texas was vehemently denied. It made important and permanent changes in the relative importance of states and sections, and was by many supposed to be pregnant with disastrous results to large interests in particular states. But no one seems to have thought of an application for an injunction against the execution of the act by the president. And yet it is difficult to perceive upon what principle the application now before us can be allowed and similar applications in that and other cases have been denied. The fact that no such application was ever before made in any case indicates the general judgment of the profession that no such application should be entertained. It will hardly be contented that Congress can interpose in any case to restrain the enactment of an unconstitutional law. And yet how can the right to judicial interposition to prevent such an enactment when the purpose is evident and the execution of that purpose certain be distinguished in principle from the right to such interposition against the execution of such a law by the president. The Congress is the legislative department of the government. The president is the executive department. Neither can be restrained in its action by the judicial department, though the acts of both when performed are in proper cases subject to its cognizance. The impropriety of such interference will be clearly seen upon consideration of its possible consequences. Suppose the bill filed and the injunction prayed for allowed. If the president refuse obedience it is needless to observe that the court is without power to enforce its process. If on the other hand the president complies with the order of the court and refuses to execute the acts of Congress is it not clear that a collision may occur between the executive and legislative departments of the government. May not the House of Representatives impeach the president for such refusal and in that case could this court interfere in behalf of the president thus endangered by compliance with its mandate and restrained by injunction the Senate of the United States from sitting as a court of impeachment. Would this strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court? These questions answer themselves. It is true that a state may file an original bill in this court and it may be true in some cases that such a bill may be filed against the United States. But we are fully satisfied that this court has no jurisdiction of a bill to enjoin the president in the performance of his official duties and that no such bill ought to be received by us. It has been suggested that the bill contains a prayer that if the relief sought cannot be had against Andrew Johnson as president it may be granted against Andrew Johnson as a citizen of Tennessee. But it is plain that relief as against the execution of an act of Congress by Andrew Johnson is relief against its execution by the president. A bill preying an injunction against the execution of an act of Congress by the incumbent of the presidential office cannot be received whether it describes him as president or as a citizen of a state. The motion for relief to file the bill is therefore denied. End of section seven. Section eight of a collection of Supreme Court opinions by the United States Supreme Court. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer please visit LibriVox.org. Minor versus Happer said 88 U.S. 162. Decided March 29th 1875. Please note this is a reading of the opinion of the court only. This reading does not include the syllabus or any concurring or dissenting opinions. For ease of listening this reading omits legal citations found within the text of the court's opinion. Minor versus Happer said 88 U.S. 162. The Chief Justice delivered the opinion of the court. The question is presented in this case whether since the adoption of the 14th Amendment a woman who was a citizen of the United States and of the state of Missouri is a voter in that state notwithstanding the provision of the Constitution and laws of the state which confine the right of suffrage to men alone. We might perhaps decide the case upon other grounds but this question is fairly made. From the opinion we find that it was the only one decided in the court below and it is the only one which has been argued here. The case was undoubtedly brought to this court for the sole purpose of having that question decided by us and a view of the evident propriety there is of having it settled so far as it can be by such a decision we have concluded to waive all other considerations and proceed at once to its determination. It is contended that the provisions of the Constitution and laws of the state of Missouri which confine the right of suffrage and registration therefore to men are in violation of the Constitution of the United States and therefore void. The argument is that as a woman born or naturalized in the United States and subject to the jurisdiction thereof is a citizen of the United States and of the state in which she resides she has the right of suffrage as one of the privileges and immunities of her citizenship which the state cannot by its laws or constitution abridge. There's no doubt that women may be citizens they are persons and by the 14th amendment quote all persons born or naturalized in the United States and subject to the jurisdiction thereof end of quote are expressly declared to be quote citizens of the United States and of the state wherein they reside end of quote but in our opinion it did not need this amendment to give them that position before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several states yet there were necessarily such citizens without such provision there cannot be a nation without a people the very idea of a political community such as a nation is implies an association of persons for the promotion of the general welfare each one of the persons associated becomes a member of the nation formed by the association he owes it allegiance and is entitled to its protection allegiance and protection are in this connection reciprocal obligations the one is a compensation for the other allegiance for protection and protection for allegiance for convenience it has been found necessary to give a name to this membership the object is to designate by a title the person and the relation he bears to the nation for this purpose the words quote subject end of quote quote inhabitant end of quote and quote citizen end of quote have been used and the choice between them is sometimes made to depend upon the form of the government citizen is now more commonly employed however and as it has been considered better suited to the description of one living under a republican government it was adopted by nearly all of the states upon their separation from great britain and was afterwards adopted in the articles of confederation and in the constitution of the united states when used in this sense it is understood as conveying the idea of membership of a nation and nothing more to determine then who were citizens of the united states before the adoption of the amendment it is necessary to ascertain what persons originally associated themselves together to form the nation and what were afterwards admitted to membership looking at the constitution itself we find that it was ordained and established by quote the people of the united states end of quote and then going further back we find that these were the people of the several states that had before dissolved the political bands which connected them with great britain and assumed a separate and equal station among the powers of the earth and that had by articles of confederation and perpetual union in which they took the name of quote the united states of america end of quote entered into a firm league of friendship with each other for their common defense the security of their liberties and their mutual and general welfare binding themselves to assist each other against all force offered to or attack made upon them or any of them on account of religion sovereignty trade or any other pretense whatever whoever then was one of the people of either of these states when the constitution of the united states was adopted became ipso facto a citizen a member of the nation created by its adoption he was one of the persons associating together to form the nation and was consequently one of its original citizens as to this there has never been a doubt disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at that time but never as to their citizenship if they were additions might also be made to the citizenship of the united states in two ways first by birth and second by naturalization this is apparent from the constitution itself for it provides that quote no person except a natural born citizen or a citizen of the united states at the time of the adoption of the constitution shall be eligible to the office of the president end of quote and that congress shall have power quote to establish a uniform rule of naturalization end of quote thus new citizens may be born or they may be created by naturalization the constitution does not in words say who shall be natural born citizens resort must be had elsewhere to ascertain that at common law with the nomenclature of which the framers of the constitution were familiar it was never doubted that all children born in a country of parents who were its citizens became themselves upon their birth citizens also these were natives or natural born citizens as distinguished from aliens or foreigners some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents as to this class there have been doubts but never as to the first for the purposes of this case it is not necessary to solve these doubts it is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens the words quote all children end of quote are certainly as comprehensive when used in this connection as quote all persons end of quote and if females are included in the last they must be in the first that they are included in the last is not denied in fact the whole argument of the plaintiffs proceeds upon that idea under the power to adopt a uniform system of naturalization congress as early as 1790 provided quote that any alien being a free white person end of quote might be admitted as a citizen of the united states and that the children of such persons so naturalized dwelling within the united states being under 21 years of age at the time of such naturalization should also be considered citizens of the united states and that the children of citizens of the united states that might be born beyond the sea or out of the limits of the united states should be considered as natural born citizens these provisions thus enacted have in substance been retained in all the naturalization laws adopted since in 1855 however the last provision was somewhat extended and all persons there to foreborn or thereafter to be born out of the limits of the jurisdiction of the united states whose fathers were or should be at the time of their birth citizens of the united states were declared to be citizens also as early as 1804 it was enacted by congress that when any alien who had declared his intention to become a citizen in the manner provided by law died before he was actually naturalized his widow and children should be considered as citizens of the united states and entitled to all rights and privileges as such upon taking the necessary oath and in 1855 it was further provided that any woman who might lawfully be naturalized under the existing laws married or who should be married to a citizen of the united states should be deemed and taken to be a citizen from this it is apparent that from the commencement of the legislation upon this subject alien women and alien minors could be made citizens by naturalization and we think it will not be contended that this would have been done if it had not been supposed that native women and native minors were already citizens by birth but if more is necessary to show that women have always been considered as citizens the same as men abundant proof is to be found in the legislative and judicial history of the country thus by the constitution the judicial power of the united states is made to extend to controversies between citizens of different states under this it has been uniformly held that the citizenship necessary to give the courts of the united states jurisdiction of the cause must be affirmatively shown on the record its existence as a fact may be put in issue and tried if found not to exist the case must be dismissed notwithstanding this the records of the courts are full of cases in which the jurisdiction depends upon the citizenship of women and not one can be found we think in which objection was made on that account certainly none can be found in which it has been held that women could not sue or be sued in the courts of the united states again at the time of the adoption of the constitution in many of the states and in some probably now aliens could not inherit or transmit inheritance there are a multitude of cases to be found in which the question has been presented whether a woman was or was not an alien and as such capable or incapable of inheritance but and no one has it been insisted that she was not a citizen because she was a woman on the contrary her right to citizenship has been in all cases assumed the only question has been whether in the particular case under consideration she had availed herself of the right in the legislative department of the government similar proof will be found thus in the preemption laws a widow quote being a citizen of the united states and a quote is allowed to make settlement on the public lands and purchase upon the term specified and women quote being citizens of the united states end of quote are permitted to avail themselves of the benefit of the homestead law other proof of like character might be found but certainly more cannot be necessary to establish the fact that sex has never been one of the elements of citizenship in the united states in this respect men have never had an advantage over women the same laws precisely applied to both the 14th amendment did not affect the citizenship of women any more than it did of men in this particular therefore the rights of mrs minor do not depend upon the amendment she has always been a citizen from her birth and entitled to all the privileges and immunities of citizenship the amendment prohibited the state of which she is a citizen from abridging any of her privileges and immunities as a citizen of the united states but it did not confer citizenship on her that she had before its adoption if the right of suffrage is one of the necessary privileges of a citizen of the united states then the constitution and laws of Missouri confine it to men are in violation of the constitution of the united states as amended and consequently void the direct question is therefore presented whether all citizens are necessarily voters the constitution does not define the privileges and immunities of citizens for that definition we must look elsewhere in this case we need not determine what they are but only whether suffrage is necessarily one of them it certainly is nowhere made so in express terms the united states has no voters in the states of its own creation the elective officers of the united states are all elected directly or indirectly by state voters the members of the house of representatives are to be chosen by the people of the states and the electors in each state must have the qualifications requisite for electors of the most numerous branch of the state legislature senators are to be chosen by the legislatures of the states and necessarily the members of the legislature required to make the choice are elected by the voters of the state each state must point in such manner as the legislature there of may direct the electors to elect the president and vice president the times places and manner of holding elections for senators and representatives are to be prescribed in each state by the legislature thereof but congress may at any time by law make or alter such regulations except as to the place of choosing senators it is not necessary to inquire whether this power of supervision thus given to congress is sufficient authorize any interference with the state laws prescribing the qualifications of voters for no such interference has ever been attempted the power of the state in this particular is certainly supreme until congress acts the amendment did not add to the privileges and immunities of a citizen it simply furnished an additional guarantee for the protection of such as he already had no new voters were necessarily made by it indirectly it may have had that effect because it may have increased the number of citizens entitled to suffrage under the constitution and laws of the states but it operates for this purpose if at all through the states and the state laws and not directly upon the citizen it is clear therefore we think that the constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted this makes it proper to inquire whether suffrage was co-extensive with the citizenship of the states at the time of its adoption if it was then it may with force be argued that suffrage was one of the rights which belonged to citizenship and in the enjoyment of which every citizen must be protected but if it was not the contrary may with propriety be assumed when the federal constitution was adopted all the states with the exception of Rhode Island and Connecticut had constitutions of their own these two continued to act under their charters from the crown upon an examination of those constitutions we find that in no state were all citizens permitted to vote each state determined for itself who should have that power thus in New Hampshire quote every male inhabitant of each town and parish with town privileges and places unincorporated in the state of 21 years of age and upwards accepting paupers and persons excused from paying taxes at their own request and to quote were its voters in massachusetts quote every male inhabitant of 21 years of age and upwards having a freehold of state within the commonwealth of the annual income of three pounds or any estate of the value of 60 pounds end of quote in Rhode Island quote such as are admitted free of the company in society end of quote of the colony in Connecticut such persons as had quote maturity in years quiet and peaceable behavior a civil conversation and 40 shillings freehold or 40 pounds personal estate end of quote if so certified by the select men in New York quote every male inhabitant of full age who shall have personally reside it within one of the counties of the state for six months immediately preceding the day of the election if during the time aforesaid he shall have been a freeholder possessing a freehold of the value of 20 pounds within the county or have rented a tenement there in of the yearly value of 40 shillings and been rated and actually paid taxes to the state end of quote in New Jersey quote all inhabitants of full age who are worth 50 pounds proclamation money clear estate in the same and have reside in the county in which they claim they vote for 12 months immediately preceding the election end of quote in Pennsylvania quote every free man of the age of 21 years having resided in the state two years next before the election and within that time paid a state or county tax which shall have been assessed at least six months before the election end of quote in Delaware and Virginia quote as exercised by law at present end of quote in Maryland quote all free men above 21 years of age having a freehold of 50 acres of land in the county in which they offered to vote and residing therein and all free men having property in the state above the value of 30 pounds current money and having resided in the county in which they offered to vote one whole year next preceding the election end of quote in North Carolina for senators quote all free men of the age of 21 years who have been inhabitants of any one county within the state 12 months immediately preceding the day of election and possessed of a freehold within the same county of 50 acres of land for six months next before and at the day of election end of quote and for members of the House of Commons quote all free men of the age of 21 years who have been inhabitants in any one county within the state 12 months immediately preceding the day of any election and shall have paid public taxes end of quote in South Carolina quote every free white man of the age of 21 years being a citizen of the state and having resided therein two years previous to the day of election and who had the freehold of 50 acres of land or a town lot of which he had been legally seized and possessed at least six months before such election or not having such freehold or town lot had been a resident within the election district in which he offers to give his vote six months before said election and hath paid a tax the preceding year of three shillings sterling towards the support of the government end of quote and in georgia quote citizens and inhabitants of the state as shall have attained to the age of 21 years and shall have paid tax for the year next preceding the election and shall have resided six months within the county end of quote in this condition of the law in respect to suffrage in the several states it cannot for a moment be doubted that if it had been intended to make all citizens of the united states voters the framers of the constitution would not have left it to implication so important a change in the condition of citizenship as it actually existed if intended would have been expressly declared but if further proof is necessary to show that no such change was intended it can easily be found both in and out of the constitution by article four section two it is provided that quote the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states end of quote if suffrage is necessarily a part of citizenship then the citizens of each state must be entitled to vote in the several states precisely as their citizens are this is more than asserting that they may change their residents and become citizens of the state and thus be voters it goes to the extent of insisting that while retaining their original citizenship they may vote in any state this we think has never been claimed and again by the very terms of the amendment we have been considering the fourteenth quote representatives shall be apportioned among the several states according to their respective numbers counting the whole number of persons in each state excluding Indians not taxed but when the right to vote at any election for the choice of electors for president and vice president of the united states representatives in congress the executive and judicial officers of a state or the members of the legislature thereof is denied any of the male inhabitants of such state being 21 years of age and citizens of the united states or in any way abridged except for participation in the rebellion or other crimes the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens 21 years of age in such state end of quote why this if it was not in the power of the legislature to deny the right of suffrage to some male inhabitants and if suffrage was necessarily one of the absolute rights of citizenship why confine the operation of the limitation to male inhabitants women and children are as we have seen persons they are counted in the enumeration upon which the apportionment is to be made but if they were necessarily voters because of their citizenship and less clearly excluded why inflict the penalty for the exclusion of males alone clearly no such form of words would have been selected to express the idea here indicated if suffrage was the absolute right of all citizens and still again after the adoption of the 14th amendment it was deemed necessary to adopt a 15 as follows quote the right of citizens of the united states to vote shall not be denied or abridged by the united states or by any state on account of race color or previous condition of servitude end of quote the 14th amendment had already provided that no state should make or enforce any law which should abridge the privileges or immunities of citizens of the united states the suffrage was one of these privileges or immunities why amend the constitution to prevent its being denied on account of race etc nothing is more evident than that the greater must include the less in if all were already protected why go through with the form of amending the constitution to protect a part it is true that the united states guarantees to every state a republican form of government it is also true that no state can pass a bill of attainer and that no person can be deprived of life liberty or property without due process of law all these several provisions of the constitution must be construed in connection with the other parts of the instrument and in the light of the surrounding circumstances the guarantee is of a republican formal government no particular government is designated as republican neither is the exact form to be guaranteed in any manner especially designated here as in other parts of the instrument we are compelled to resort elsewhere to ascertain what was intended the guarantee necessarily implies a duty on the part of the states themselves to provide such a government all the states had governments when the constitution was adopted and all the people participated to some extent through their representatives elected in the manner specially provided these governments the constitution did not change they were accepted precisely as they were and it is therefore to be presumed that they were such as it was the duty of the states to provide thus we have unmistakable evidence of what was republican informed within the meaning of that term as employed in the constitution as has been seen all the citizens of the states were not invested with the right of suffrage in all say perhaps new jersey this right was only bestowed upon men and not upon all of them under these circumstances it is certainly now too late to contend that a government is not republican within the meaning of this guarantee in the constitution because women are not made voters the same may be said of the other provisions just quoted women were excluded from suffrage in nearly all the states by the express provision of their constitutions and laws if that had been equivalent to a bill of attainer certainly its abrogation would not have been left to implication nothing less than express language would have been employed to affect so radical a change so also the amendment which declares that no person shall be deprived of life liberty or property without due process of law adopted as it was as early as 1791 if suffrage was intended to be included within its obligations language better adapted to express that intent would most certainly have been employed the right of suffrage when granted will be protected he who has it can only be deprived of it by due process of law but in order to claim protection he must first show that he has the right but we have already sufficiently considered the proof found upon the inside of the constitution that upon the outside is equally effective the constitution was submitted to the states for adoption in 1787 and was ratified by nine states in 1788 and finally by the 13 original states in 1790 Vermont was the first new state admitted to the union and it came in under a constitution which conferred the right of suffrage upon only men of the full age of 21 years having resided in the state for the space of one whole year next before the election and who were a quiet and peaceable behavior this was in 1791 the next year 1792 Kentucky followed with a constitution confining the right of suffrage to free male citizens of the age of 21 years who had reside in the state two years or in the county in which they offered to vote one year next before the election then followed Tennessee in 1796 with voters of freemen of the age of 21 years and upwards possessing a freehold in the county wherein they may vote and being inhabitants of the state or freemen being inhabitants of any one county in the state six months immediately preceding the day of election but we need not particularize further no new state has ever been admitted to the union which has conferred the right of suffrage upon women and this has never been considered a valid objection to her admission on the contrary as is claimed in the argument the right of suffrage was withdrawn from women as early as 1807 in the state of new jersey without any attempt to obtain the interference of the united states to prevent it since then the governments of the insurgent states have been reorganized under a requirement that before the representatives could be admitted to seats in congress they must have adopted new constitutions republican and form and no one of these constitutions was suffrage conferred upon women yet the states have all been restored to their original position as states in the union besides this citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage thus in Missouri persons of foreign birth who have declared their intention to become citizens of the united states may under certain circumstances vote this same provision is to be found in the constitutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, and Texas certainly if the courts can consider any questions settled this is one for nearly 90 years the people have acted upon the idea that the constitution when it conferred citizenship did not necessarily confer the right of suffrage if uniform practice long continued can settle the construction of so important an instrument as the constitution of the united states confessibly is most certainly it has been done here our province is to decide what the law is not to declare what it should be we have given this case the careful consideration its importance demands if the law is wrong it ought to be changed but the power for that is not with us the arguments addressed to us bearing upon such a view of the subject may perhaps be sufficient to induce those having the power to make the alteration but the ought not to be permitted to influence our judgment in determining the present rights of the parties now litigating before us no argument as to woman's need of suffrage can be considered we can only act upon her rights as they exist it is not for us to look at the hardship of withholding our duty is at an end if we find it is within the power of a state to withhold being unanimously of the opinion that the constitution of the united states does not confer the right of suffrage upon any one and that the constitutions and laws of the several states which commit that important trust to men alone are not necessarily void we affirm the judgment end of section eight section nine of a collection of supreme court opinions by the united states supreme court this is a liber vox recording all liber vox recordings are in the public domain for more information or to volunteer please visit liber vox.org recording by collie mcman nix v headen 149 us 304 decided may 10th 1893 please note this is a reading of the opinion of the court only this reading does not include the syllabus or any concurring or dissenting opinions for ease of listening this reading omits legal citations found within the text of the court's opinion mr. justice gray after stating the case delivered the opinion of the court the single question in this case is whether tomatoes considered as provisions are to be classed as quote vegetables end of quote or as quote fruit end of quote within the meaning of the tariff act of 1883 the only witnesses called at the trial testified that neither quote vegetables end of quote nor quote fruit end of quote had any special meaning in trade or commerce different from that given in the dictionaries and that they had the same meaning in trade today that they had in March 1883 the passages cited from the dictionaries define the word quote fruit end of quote as the seed of plants or that part of plants which contains the seed and especially the juicy pulpy products of certain plants covering and containing the seed these definitions have no tendency to show the tomatoes are quote fruit end of quote as distinguished from quote vegetables end of quote in common speech or within the meaning of the tariff act there being no evidence that the words quote fruit end of quote and quote vegetables end of quote have acquired any special meaning in trade or commerce they must receive their ordinary meaning of that meaning the court is bound to take judicial notice as it does in regard to all words in our own tongue and upon such a question dictionaries are admitted not as evidence but only as aids to the memory and understanding of the court botanically speaking tomatoes are the fruit of a vine just as our cucumbers squashes beans and peas but in the common language of the people whether sellers or consumers of provisions all these are vegetables which are grown in kitchen gardens and which whether eaten cooked or raw are like potatoes carrots parsnips turnips beets cauliflower cabbage celery and lettuce usually served at dinner in with or after the soup fish or meats which constitute the principal part of the ripast and not like fruits generally as dessert this attempt to class tomatoes with fruit is not unlike a recent attempt to class beans as seeds of which mr. justice bradley speaking for this court said quote we do not see why they should be classified as seeds any more than walnuts should be so classified both are seeds in the language of botany or natural history but not in commerce nor in common parlance on the other hand in speaking generally of provisions beans may well be included under the term quote vegetables end of quote as an article of food on our tables whether baked or boiled or forming the basis of soup they are used as a vegetable as well when ripe as when green this is the principal use to which they are put beyond the common knowledge which we have on the subject very little evidence is necessary or can be produced end of quote judgment affirmed end of section nine recording by colleen mcman