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support armies and maintain a navy, and to make all laws necessary and proper for carrying into execution the foregoing powers; for clearly war is meant to be successful, and an army and a navy to be useful, and war could not be successful nor an army and navy useful without arms and ammunition. And so too of the prohibition of the export of provisions.

Further, it would be possible to sustain by the commerce clause the validity of part of the provisions in the British Aliens Restriction Act 24 for prohibiting aliens from landing and embarking, for deportation of aliens, and for requiring aliens to remain within certain places; but it would be simpler, and quite as easy, to sustain the whole of them under the war and army and navy clauses.

Similarly, it is upon the war and army and navy clauses that one would support in America the provisions of the British Act of Parliament 25 for requisitioning carriages, horses, vessels, aircraft, food, and stores of every description, and the provisions of later legislation expressly extending to all interferences with private rights of property for the purpose of serving the public safety. It is true that an appeal would be taken to the provision in the Fifth Amendment to the effect that no person “shall be deprived of life, liberty, or property, without due process of law”; but the seizure of property in the emergency of war is an ancient procedure, not to be overthrown by language so devoid of specification as is this. Here is a place where one must bear in mind that the due process clause of the Fourteenth Amendment - "nor shall any State deprive any person of life, liberty, or property, without due process of law” – is held not to deprive a State of the power to protect health, morals, quiet, and the like, even at the expense of restricting or destroying life, liberty, or property.26 If a State may thus, notwithstanding a due process limitation, interfere with life, liberty, and property for the sake of health, morals, quiet, and the like, it follows, a fortiori,

24 Aug. 5, 1914; EMERGENCY LEGISLATION, 6.

26 Bartemeyer v. Iowa, 18 Wall. 129 (1873) (State may prohibit use of intoxicating liquor); Munn v. Illinois, 94 U. S. 113 (1876) (State may regulate charges of grain elevators); Barbier v. Connolly, 113 U. S. 27 (1885) (Municipal ordinance may prohibit public laundry work between certain hours and within certain neighborhoods); Lawton v. Steele, 152 U. S. 133 (1894) (State may protect fish by destroying nets); Holden 0. Hardy, 169 U. S. 366 (1898) (State may make an eight-hour day for underground mine workers).

that notwithstanding a due process restriction the United States may interfere with life, liberty, and property for the sake of protecting the very existence of the government itself. The question of compensation is more serious. The Fifth Amendment says "nor shall private property be taken for public use, without just compensation.” As has been said, all general language must be taken prima facie as referring to normal life, and the normal life is peace and not war. Yet the Fifth Amendment in a preceding provision bears war in mind, saying that for infamous crimes there must be a grand jury "except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” Besides, payment for requisitions is a normal procedure. It will be urged, therefore, that the Fifth Amendment requires just compensation for requisitions. Nevertheless, it is important to recognize that the Fifth Amendment covers five topics, that these topics are not of the same sort, that the topic mentioning war is the first, that the topic regarding compensation is the fifth, and that the intermediate ones are far from having peculiar bearing upon war, though it may be admitted that they are not incapable of being applied intelligently to war as well as to peace. This will be seen clearly if with these points in mind the Fifth Amendment be read from beginning to end. After the insertion of figures to call attention to the several topics, the Amendment is this:

“(1) No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; (2) nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; (3) nor shall be compelled in any criminal case to be a witness against himself, (4) nor be deprived of life, liberty, or property, without due process of law; (5) nor shall private property be taken for public use, without just compensation." There can be no question that the fifth topic is as a matter of mere words so stated as to require compensation for the use of a battlefield. Yet it seems reasonable to say that these words, however wide their verbal meaning, do not mean to cover takings of such an abnormal nature, but mean simply to cover takings by way of eminent domain — peaceful and normal takings. Payments for requisitions from enemies or from friends are covered by the laws of war, and

payments for battlefields and the like are covered, if at all, by specific legislative grants of indemnity; and, as it seems, the compensation which is the topic of the concluding passage of the Fifth Amendment is compensation only for takings which are normal and peaceful, especially as payment for such normal takings was not required by the common law and needed this express regulation.

Let us now pass from considerations regarding property to considerations regarding personal liberty.

Combining the British Defence of the Realm Consolidation Act, 1914, and the Regulations based upon it, one finds provisions requiring persons to remove from areas important for military or naval uses, and to refrain from liquor selling, and at certain hours to extinguish lights, and to remain within doors, and to refrain from collecting information regarding the armed forces, and to refrain from having photographic apparatus in the vicinity of naval or military works; and one must now ask what would have to be said of the constitutionality of such restrictions in the United States. The apparent way to bring them within federal power is through the war and army and navy clauses of the Constitution; for the power to have an army and a navy carries with it the power to protect the bodies and individuals constituting the forces and to do what is necessary to secure the success of their operations. Here again the Fifth Amendment would be seized, and especially the provision that no person shall be deprived of life, liberty, or property without due process of law. Due process of law includes whatever was recognized as appropriate at the adoption of the Constitution. From the point of view of due process of law, whatever is old is good.27 In war times such restrictions as those named have been common and are necessary. In other words, they are appropriate; and hence they comply with the requirement of due process.

Still more clearly, it is within congressional power to provide, as in the British Trading with the Enemy Act, 1914, and its successors, that business transactions with persons resident in hostile territory shall be a misdemeanor and that the subject matter shall be forfeited; for such transactions are obviously detrimental to the conduct of war, and contrary to public policy at common law, and within the commerce clause and the army and navy clauses of the

27 Den d. Murray u. Hoboken Land Co., 18 How. 272 (1855).

Constitution, and not protected by the due process clause of the Fifth Amendment.

The instances of British legislation thus far discussed have been chosen as samples of the sort of problems and of the mode in which the problems would have to be met under the Constitution of the United States. To discuss the whole mass of British legislation appears unnecessary. Finally, it is also unnecessary at present to discuss whether individual States could enact similar legislation; for the important question now is simply whether the Nation can

do so.

Eugene Wambaugh.




ROBABLY the most pressing of the tasks now confronting

American students of Conflict of Laws is the delimiting of the jurisdiction of the courts over foreign corporations and nonresident individuals who carry on business within a state. It is common knowledge that a few of the states by their extremely liberal corporation laws have secured a practical monopoly of the profitable business of incorporating commercial enterprises the bulk of whose business is transacted in other states. But of more importance is the fact that the entrepreneurs, the investing Public and financial resources of the nation, are all concentrated in a few localities remote from the states which constitute the exploited sections of the country. Consequently it has become vital that the states, without violating constitutional guaranties, discover methods of securing justice to their citizens at home in their dealings with foreign trading groups and individuals.

Jurisdiction over foreign corporations may appear to the casual observer to involve a generically different question from jurisdiction over non-resident individuals. But a moment's reflection will make clear that for practical purposes they are merely different phases of the less obvious but fundamentally more important problem of jurisdiction over foreign groups engaged in business within a state. The volume of business transacted by single non-residents through occasional visits or by correspondence is too small to create any social exigency. Our task is a by-product of the activities of great commercial aggregations controlled by non-resident individuals and groups corporate or unincorporate. This article will, therefore, primarily represent an investigation of methods of securing jurisdiction over such organizations.

The jurisdiction conferred upon any particular court is today a matter of statute and simply a question of delegation of authority. It may be settled by a glance at the statute books and annotating

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