authorizing the city to pass such ordinance, declared that every male person imprisoned in the county jail, under the judgment of any court having jurisdiction in criminal cases in the city and county, should immediately upon his arrival at the jail have the hair of his head "cut or clipped to a uniform length of one inch from the scalp thereof," and the statute makes it the duty of the sheriff to have this provision enforced, and that under this ordinance he did cut off the queue of the plaintiff, who had been committed to prison for not paying a fine for violation of the aforesaid ordinance. The plaintiff denied the validity of the ordinance on the ground that it was special legislation imposing a degrading and cruel punishment upon a class of persons who were entitled, alike with all persons within the jurisdiction of the United States, to the equal protection of the laws.

Mr. Justice Field held that the legislation was special on the part of the supervisors against a class of persons who, under the Constitution and laws of the United States, are entitled to the equal protection of the laws. The ordinance was intended only, said he, for the Chinese in San Francisco. It is known in the community as the "queue ordinance," being so designated from its purpose to reach the queues of the Chinese, and is not enforced against any other persons. The reason advanced for its adoption, and now urged for its continuance, is, that only the dread of the loss of his queue will induce a Chinaman to pay his fine. That is to say, in order to enforce the payment of a fine imposed upon him, it is necessary that torture should be superadded to imprisonment. Then, it is said, the Chinese will not accept the alternative, which the law allows, of working out his fine by his imprisonment, and the State or county will be saved the expense of keeping him during the imprisonment. Probably the bastinado, or the knout, or the thumb screw, or the rack, will accomplish the same end; and no doubt the Chinamen would prefer either of these modes of torture to that which entails upon him disgrace among his countrymen and carries with it the constant dread of misfortune and suffering after death. It is not creditable to the humanity and civilization of our people, much less to their Christianity, that an ordinance of this character

was possible. The complaint in this case says that the ordinance acts with special severity upon Chinese persons, inflicting upon them suffering altogether disproportionate to what would be endured by other prisoners if enforced against them. Upon the Chinese prisoners its enforcement operates as a "cruel and unusual punishment." The ordinance was held to be in violation of the 8th Amendment.

A person was convicted of violating a State statute and forbidden by injunction to do so again. Upon being charged with violating the injunction he was tried and convicted. The court sentenced him to imprisonment and to pay a fine. It was claimed that this was a violation of the Eighth Amendment, but the Supreme Court of the United States held it was not.33

A statute of a State which provided that any one who embezzled money should, upon conviction, be imprisoned, and also pay a fine equal to double the amount embezzled, which should be a lien on the property of the defendant and collectible as other judgments by legal process, was held not to conflict with the Federal Constitution.34

The Supreme Court of the United States will interfere with the action of the State courts only when they impose fines which amount to a deprivation of property without due process of law.35

33 Eilenbecker v. District Court, 134 U. S., 31, 34.

34 Coffey v. Harlan County, 204 U. S., 659, 664.

35 Waters-Pierce Oil Co. v. Texas, 212 U. S., 86, 111.

CHAPTER LVII.

THE NINTH, TENTH AND ELEVENTH AMENDMENTS.

NINTH AMENDMENT.

The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.

This amendment is supposed to have grown out of Mr. Hamilton's contribution on the subject of a general Bill of Rights as set forth in one of his contributions to the Federalist. As has been said, the people, when the Constitution was submitted for ratification to the States, were disturbed over the omission of a Bill of Rights in that instrument. Mr. Hamilton in his essay contended that such a bill was not necessary, for various reasons, which have been commented upon elsewhere. It was maintained, however, by those who favored a Bill of Rights that the States were surrendering more power to the General Government under the Constitution than they had under the Articles of Confederation. It was to prevent the exercise by the General Government of rights not granted that the amendment was inserted.

Judge Story says: "This clause was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim, that an affirmation in particular cases implied a negation in all others, and, e converso, that a negation in particular cases implies an affirmation in all others. The maxim, rightly understood is perfectly sound and safe; but it has often been strangely forced from its natural meaning into the support of the most dangerous political heresies.""

Paschal says: "The words, 'of certain rights,' have reference to the several general and special powers granted,

1 The Federalist, No. 84.

2 Story on the Constitution, vol. 2, sec. 1905.

surrendered or delegated to the different departments of the government." He also says: "The word 'disparage' is strangely used in this connection, and the word 'people' must be used in the sense of 'we the people' in the Preamble, and in the Tenth Amendment.''

The expression 'certain rights' is ambiguous as used in the amendment. Had the rights been enumerated the sense would have been clearer.

Mr. Madison in his Fourth Amendment had the following provision, which contains a remote reference to this amendment: "The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.''

The Committee of Eleven changed it to read: "The enumeration in this Constitution of certain rights, shall not be construed to disparage others retained by the people.''

The Special Committee of Three changed this to the form in which it is now found in the Constitution."

TENTH AMENDMENT.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This was the last amendment which Mr. Madison introduced, and its form was not changed, except the words, "or to the people," were added while the amendment was under consideration in the House. It is one of the most important of the original amendments. It guards the reserved rights of the States, and designates the line of

8 Paschal on Constitution, 268, 269.

41 Annals, 452.

5 Thorpe's Constitutional History of the United States, vol. 2, 226.

• Thorpe's Constitutional History of the United States, vol. 2, 258. 71 Annals, 453.

power between the States and the General Government. The second article of the Articles of Confederation consisted of the following provision, which is probably the source of the amendment: "Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States in Congress assembled." It will be observed that the word "expressly" appears before "delegated" in this provision, but it is omitted in the amendment. When this amendment was being considered in the House of Representatives Mr. Tucker, of Virginia, offered an amendment to prefix to it, "All powers being derived from the people," so that it would read, "All powers being derived from the people, the powers not delegated to the United States," etc. Mr. Tucker said he thought this a better place to make this assertion than in the introductory clause of the Constitution, meaning the Preamble. He also embraced in his motion the addition of the word "expressly," so that the amendment would read, "The powers not expressly delegated to the United States by the Constitution," etc.

Mr. Madison objected to the amendment, because, as he said, it was impossible to confine a government to the exercise of express powers, that there must be admitted powers by implication, unless the Constitution descended to recount every minutia. He also said he remembered the word "expressly" had been moved in the Convention of Virginia by the opponents to the Constitution, and after a full and fair discussion had been abandoned by them, and the wording had been permitted to remain in its present form.

Mr. Sherman agreed with Mr. Madison, remarking that corporate bodies are supposed to possess all powers incident to a corporate capacity, without being absolutely expressed. Mr. Tucker replied that he did not view the word "expressly" in the same light as the gentlemen who opposed him. He thought every power to be expressly given which could be clearly understood within any accurate definition of the general power. A vote being taken, Mr. Tucker's motion was defeated.

• Congressional Register, vol. 2, Lloyd, 234.